Nulliah v Harper

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA, Curlewis JA and Stratford JA
• Judgment Date: 05 November 1929
• Hearing Date: 16 October 1929
• Court: Appellate Division

Curlewis, J.A.:

The appellant instituted an action against respondent in the Natal Provincial Division in which he claimed that respondent be ordered forthwith to sign and execute cessions of certain three mortgage bonds as desired by appellant. The claim was based on a written undertaking or agreement signed by respondent, a copy of which was annexed to the declaration.

In his plea respondent admitted the execution of that document, but resisted the claim on the ground (1) that he was induced to sign the document by the misrepresentation and fraud of the appellant, (2) alternatively that appellant had not complied with the terms of the document. A claim in reconvention was made for rescission of the undertaking or agreement on the ground of fraud.

The Natal Provincial Division found that the defence of fraud had not been established and held that that defence and the claim in reconvention failed, but that appellant had not complied with a condition contained in the document in respect of the payment of a sum of money and that his action therefore failed, and judgment was given for the respondent on the claim in convention.

The appeal before us is against that judgment.

In order to appreciate the issue between appellant and respondent it is desirable to set out certain facts which do not appear to be in dispute.

The appellant is an Indian market gardener, and owned certain property in Church Street, Pietermaritzburg, some brickfields on a farm known as Brookside, and two farms known as Ashfield and Cloisters on the townlands of Pietermaritzburg. His wife owned a farm known as Wilderness. Appellant and respondent had had business transactions and the latter had advanced the former money from time to time. They had entered into a partnership

Curlewis, J.A.

in respect of the brickfields, which was dissolved in February, 1928. The appellant was then indebted to respondent in a large sum of money which together with interest thereon was secured by three mortgage bonds (1) a first bond for £1,000 over Brookside (2) a first bond for £1,600 over the Church Street property (3) a second mortuage bond for £7 150 over both of those properties as well as over the farms Ashfield and Cloisters. These were the bonds the subject of the action. The bonds for £1,000 and £1,600 were ceded by respondent to the Standard Bank as security for an overdraft. In June, 1928, appellant was in arrear with the interest due on the bonds and was being pressed by respondent for payment; in July a summons was issued against appellant but it was not proceeded with. On 11th September, 1928, respondent wrote to the appellant that he had a good opportunity of investing £6,000 "up the East Coast" and made him the following offer: "That if you bring me £6,000 cash within one week from date, I will cancel or cede as desired the bonds I hold on the Brookside property of yours." This offer, which was not to include interest due, was not accepted. The appellant continued to be in default in respect of interest due on the bonds. Early in December, 1928, the City Council of Pietermaritzburg authorised its Treasurer to negotiate with appellant with a view to purchasing property from appellant in connection with the Council's sewage works. The negotiations culminated in appellant selling to the Council the three properties Ashfield, Cloisters and Wilderness for £7,750, the sale being concluded on the 28th December. The following day the purchase of these properties by the Council was announced in the newspaper, Natal Witness, and respondent saw the announcement the same day. Some days prior to the conclusion of the sale to the Council an interview had taken place between appellant and respondent at the latter's house. On that occasion respondent signed and handed to appellant the-document dated 22nd December, 1928, on which the action by appellant was founded. The document is as follows:-

	47, Royston Road, Maritzburg.
To ALL WHOM IT MAY CONCERN. This is to place on record the fact that I, N. Harper of the above address, am the holder of certain bonds on C. Nulliah's properties in Church Street, and the Brookside Brickyards in

Curlewis, J.A.

Maritzburg, also on the farms Ashfield and Cloisters situated in the Town Lands of Maritzburg. Also that I agree that if C. Nulliah will pay into the Standard Bank, Maritzburg, before February 1st, 1929, the sum of £7,000, seven thousand pounds, together with arrear interest now due and that also to the date of such payment that I will cancel or transfer all the bonds as he may desire. It is to be distinctly understood that any commission, legal and all other charges are to be paid by C. Nulliah.

N. Harper."

On the same occasion appellant signed and gave to respondent the following document:-

	47, Royston Road, Maritzburg.
In consideration for a letter dated 22/12/28 wherein Mr. N. Harper agrees to accept but £7,000, seven thousand pounds, clear for the transfer or cancellation of all bonds that he possesses on my properties in Church Street, the Brookside property and the farms Ashfield and Cloisters in terms of the above letter, I hereby give him a clear discharge of any and all sums that he at this date owes to the Brookside Brickyards, and further I agree and undertake to at once send him free of all expense 15,000 bricks of No. 1 quality and also 36 cubic yards of broken brick.
	C. Nulliah.

These two documents were drawn up by respondent.

During the month of January, 1929, appellant delivered and respondent accepted, the material which appellant had undertaken to deliver under the latter document. Sometime before 31st January, 1929, arrangements had been made between appellant and the City Council that the latter should advance him £6,000 on account of the purchase price of £7,750, the Council or its solicitors having been shown the document of 22nd December signed by respondent. On the 31st January at about 10 a in appellant's solicitor (Mr. Leslie Smith) saw respondent's solicitor (Mr. Smythe) at the latter's office, informed him that he hoped to be able to make the payment during the day, and asked him to give him details of the amount required to discharge appellant's liability. Respondent's solicitor produced a carbon copy of a statement (known as exhibit 7 in the proceedings). This statement was dated 14th January, 1929, was addressed to the appellant, and contained details showing interest

Curlewis, J.A.

due on the three bonds to 31st January, 1929, credits in respect of moneys paid by appellant between 7th July and 10th December, 1928, and debits in respect of respondent's solicitor's commission and charges for attendance. The balance shown to be due as on 31st January, 1929, was £4l9 13s. 0d. It may be noted that the two items of the solicitor's charges in the statement lead "To Solicitor's commission upon collection of balance of interest to 31st January, 1929," and "To Solicitor's charges for attendances on you, Mr. J. Leslie Smith and the Bank regarding settlement." At 12.45 p in on 'the 31st January appellant's solicitor again went to the office of respondent's solicitor in order to obtain particulars of the second bond of £7,150; the particulars were required as the City Council had agreed to pay the £6,000 against cession of this second bond in its favour. On that occasion appellant's solicitor informed respondent's solicitor that he had made arrangements with the Bank to take the money, if necessary, in the afternoon (that is after the bank's (losing hour of 2 o clock) if he was able to arrange for payment. At 2.45 p in appellants solicitor again called at respondent's solicitor's office to inform him that he had "fixed everything up.:" Thereupon respondent's solicitor remarked "I am sorry to tell you that Mr. Harper has decided not to sign the documents," and in answer to a question for the reasons, he replied "We have good reasons, I am not prepared to disclose them now. You will be advised in due course." To which appellant's solicitor replied that his only alternative was to make payment to the Bank and then to sue respondent. Respondent's solicitor replied "that is all you can very well do."

Thereupon appellant's solicitor, who had...