Schoeman v Moller

• Jurisdiction: South Africa
• Judge: Horwitz J
• Judgment Date: 16 November 1950
• Citation: 1951 (1) SA 456 (O)
• Court: Orange Free State Provincial Division

Horwitz, J.:

Plaintiff's claim against defendant is for the sum of £550 representing eleven instalments of £50 each alleged to be due under an undertaking entered into by defendant on the 25th November, 1947, on the terms contained in a written agreement

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of that date and referred to in the proceedings as Annexure 'A' to the declaration.

The history leading up to the present dispute and the pleadings filed in the action have been outlined in the judgment delivered on 23rd June, A 1949, on defendant's application for absolution from the instance at the close of the plaintiff's case, a judgment reported in 1949 (3) SA 949. There is no need to repeat herein what is there recorded, but, for the sake of clarity, it may be reiterated that defendant's plea comprised two distinct defences, namely, (a) that defendant was B discharged from liability towards plaintiff by reason of material and prejudicial variations voluntarily brought about by plaintiff in the principal obligation between plaintiff and the principal debtor, Moller Snr. and (b) that defendant was expressly released by verbal agreement entered into between plaintiff and Moller Snr. and made, in that regard, C for the defendant's benefit, which benefit defendant duly accepted.

These defences, in turn, together with the other parts of the pleadings, raise a number of subsiduary issues of fact, the chief of which may be said to be the following: (1) Subsequent to the completion of Annexure D 'A' was any verbal agreement entered into between the parties defining the date when defendant's liability to pay £50 per month under the terms of Annexure 'A' was to commence, and, in this regard, was Claassen the duly authorised agent of defendant whose mandate empowered him to enter E into any such agreement on behalf of defendant? (2) Whether the defendant knew of and consented to, the passing of a second bond over the Union Road property by Moller Snr. in favour of plaintiff in an amount of £1,120 repayable two years as from the 12th May, 1948. (3) Whether the date and terms of the second bond differed materially from F those envisaged in Annexure 'A', whether such differences were, and are, to the prejudice of the defendant and whether they consequently operated to discharge defendant as surety as also to discharge him from his undertaking to pay £50 a month. (4) Whether during March or April, G 1948, plaintiff agreed with Moller Snr. to vary and add to Annexure 'A' in any or all of the following respects: (a) That instead of raising a loan from a building society on first mortgage over the Union Road property for £3,150, the proceeds whereof had to be paid to plaintiff, it was agreed that Moller Snr. should raise a loan of £3,500 and pay the full proceeds of this loan to plaintiff in reduction of the purchase H price of the Union Road property and to cover costs of transfer. (b) That instead of registering a second bond over the Union Road property in favour of plaintiff for £2,000 payable after the lapse of one year, a bond was actually registered on the 8th June, 1948, for £1,120 payable on the 12th May, 1950. (c) Whether the sale of the Zastron Street property 'forthwith' by Moller Snr. and the obligation to pay the nett proceeds thereof to plaintiff were terms or provisions added to

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Annexure 'A' by agreement between plaintiff and Moller Snr. (d) Whether there was an express verbal undertaking given by or on behalf of plaintiff to Moller Snr. and/or Claassen in terms whereof defendant was released from all his obligations under Annexure 'A'.

A To limit the discussion on the facts to reasonable confines, I propose to do no more than record briefly my findings on most of the above issues after lending due consideration to all the evidence before the Court. Before, however, setting out these findings it is necessary to B make some brief reference to the question of credibility. In this connection I may state that I was favourably impressed by the evidence of the plaintiff and that of his legal representative, Mr. Jessup. In so far as the former is concerned Mr. Grobler offered, in effect, only one serious ground of criticism and that was in regard to an apparent denial C by the witness that he had ever been asked to agree to the release of the defendant and his later admission in cross-examination that his attorney had placed the contents of Exhibit 'P', dated the 6th April, 1948, and containing, inter alia, a request for the release of the D defendant, before him for his consideration. Apart from the form of the question to which the answers were given and the context generally of those answers, I must bear in mind that the witness endeavoured to emphasise the refusal to lend consideration to the request which he described as ridiculous rather than to the fact of the request having E been made. In these circumstances I am not prepared to attach such serious consequences to this apparent discrepancy as those I was invited by counsel to do, particularly in view of the fact that it was made clear that it was at no stage of the proceedings any part of plaintiff's F case to deny that the request for the release of defendant was made. Mr. Jessup, again, was shown to have made several mistakes during the period 25th November, 1947, to the time he gave his evidence. This may be accounted for by lapses of memory, stress of work and, in a measure, reliance on the supposition that the Mollers would faithfully perform G their respective undertakings. Any criticism of his evidence must, in my view, be directed to attack the accuracy of his testimony rather than his credibility. A very different conclusion is, however, compelled in regard to the evidence of the Mollers. Their demeanour in the witness box was completely unsatisfactory though that of defendant was not quite as bad as that of his father. But, demeanour apart, I should, without H any hesitation, prefer to act on the evidence of plaintiff and to reject that of the Mollers on any point on which there is a conflict in the two sets of testimony. I am satisfied that from a point of time shortly after the 25th November, 1947, defendant entertained not the slightest intention of honouring any of the obligations he solemnly undertook under Annexure 'A'. In January, 1948, he entered into a contract for the sale of his Waverley Road property

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over which, by the terms of Annexure 'A', he was obliged to pass a collateral mortgage bond in favour of plaintiff and, notwithstanding his knowledge and realisation that he could and would no longer perform his undertaking towards plaintiff in this regard, he studiously avoided A plaintiff and refrained from informing him or his attorney of the sale or offering any explanation or alternative suggestion. Then, too, one of the buyers from him under a deed of sale which he undertook to cede to plaintiff as additional security defaulted early in 1948 with the result, apparently, that the payment of instalments falling due under B that deed was no longer effected by the purchaser and, therefore, could not be paid over to the plaintiff under Annexure 'A'. Here, again, defendant maintained complete silence and inactivity. All he could offer by way of justification was that he awaited the registration of the C second bond over the Union Road property of his father and that he regarded his liability towards plaintiff as commencing only after such registration. Even if it be assumed that this view was legally justifiable, it cannot afford a sufficient moral reason for his silence. Finally, Mr. Claassen, an attorney of this Court, gave evidence for D defendant. He also made mistakes, an example of which is found in the correspondence when he referred to both Mollers as his 'clients' when, according to his evidence, defendant at no stage was a client of his in respect of the subject matters of this litigation. Like Mr. Jessup he had to rely largely on his memory as to events which occurred more than E two years before and was not unexpectedly vague on a number of points. If it be borne in mind that towards the end of June, 1948, he severed his connection with the local firm of attorneys in whose employ he had been prior to that date, and then left Bloemfontein, his lesser interest F in uncompleted matters in the office in which he was employed during April and June is perhaps understandable. There are several instances where his failure to confirm alleged verbal agreements between himself and Mr. Jessup and between Mr. Jessup and Moller Snr. is open to serious criticism. I am not prepared, however, to describe his evidence as G unworthy of credit in its entirety. In any conflict between his testimony and that of Mr. Jessup I must be influenced largely by the incidence of the onus save where other facts or circumstances abundantly favour and point to the acceptance on any part of the evidence of the testimony of one in preference to that of the other.

H With these introductory remarks on credibility I proceed next to record the findings on the various factual issues raised by the pleadings.

Annexure 'A' makes no provision for the date when the liability to cede the deeds of sale therein referred to, and to pay the monthly instalments payable thereunder is to commence. The intention of the parties was that of the balance of £80 per month paid, or payable, by the sellers under those deeds at the office of

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A. W. McHardy to the credit of defendant, after the deduction of a certain amount in respect of the indebtedness of defendant to the firm of A. W. McHardy, £50 had to be appropriated by plaintiff's attorneys under Annexure 'A' and the balance had to be remitted by plaintiff's A attorneys to defendant. The date when such payments were to commence was discussed in a confused way in Mr. Jessup's office and this confusion persisted after Annexure 'A' had been...