Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1941 AD 43

Union Government Appellant v Vianini Ferro-Concrete Pipes (Pty) Ltd Respondent
1941 AD 43

1941 AD p43

Citation	1941 AD 43
Court	Appellate Division
Judge	De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
Heard	September 25, 1940
Judgment	October 15, 1940

Flynote : Sleutelwoorde

Contract — Written contract — Parol evidence to vary — Suspensive condition — Estoppel — Exceptio doli — Tender to supply Government requirements.

Headnote : Kopnota

In prior legal proceedings between the parties it had been held that upon a true construction of a certain written contract the defendant Government was under an obligation to purchase its requirements of certain pipes from the plaintiff. To declarations claiming in one case the price of certain pipes which it was alleged the Government required but had purchased elsewhere and in the other case damages in respect of a similar purchase of other pipes the main plea was to the effect that the written contract was not the complete contract between the parties. In addition defendant pleaded in the alternative, if the Court found that the written contract was in fact the contract between the parties, that by agreement between the parties the contract was subject to the suspensive condition that it would only come into operation when the requirements of the defendant had been ascertained and when it had been ascertained that plaintiff represented the most economical and convenient source of supply in comparison with certain other named suppliers. An exception having been allowed to this alternative plea.

Held, that the plea did not set up a true suspensive condition, but an agreement between the parties which modified the defendant's obligation to purchase all its requirements from the plaintiff and that such an agreement could not be set up as a defence inasmuch as the defendant, for the purposes of this plea, admitted that the written contract was the whole contract between the parties.

In a further alternative plea, the defendant said that the plaintiff was estopped from claiming by reason of the fact that before the defendant entered into the contract claimed on it had notified the plaintiff, who had agreed thereto, that it proposed entering into similar contracts with various other firms in respect of its requirements of pipes and that it would purchase either from

1941 AD p44

plaintiff or such other firms; that such contracts were entered into and that if plaintiff had not agreed to Defendant entering into such contracts defendant would not, as plaintiff knew, have entered into the contract claimed on.

Held, that as a plea of estoppel the plea was bad inasmuch as no representation made by the plaintiff was alleged.

Held, further, that if the plea was intended to raise the exceptio doli it was also bad, inasmuch as the defendant accepted the written contract as a true and valid contract and the plea in its present form merely set up an oral agreement inconsistent with the written contract and made before the written contract was executed.

The decision of the Transvaal Provincial Division in Vianini Ferro Concrete Pipes (Pty.) Ltd. v Union Government, confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (GRINDLEY-FERRIS, J., and SCHREINER, J.).

The facts appear from the judgment of WATERMEYER, J.A.

O. Pirow, K.C. (with him C. Isaacson), for the appellant: As to exception No. 1 evidence is admissible of a separate oral agreement constituting a condition precedent to the attachment of any liability under a written instrument. See Stiglingh v Theron (1907, T.S. 998 at p 1003); van der Spuy v Levy (1921 TPD 581) and Estate Max v McComb (1937 T.P.D. 195 at p. 197).

Such oral evidence may prima facie be in conflict with the terms of the written instrument. See van der Spuy v Levy (supra) and Wigmore on Evidence (2nd ed., vol. 5, sec. 2431).

There is nothing in the written contract which precludes an agreement to suspend the operation of the whole contract. See McIlraith v Pretoria Municipality (1912 T.P.D. 1027 at pp. 1033-6) and Estate Max v McComb (supra).

As to exception No. 2 the legal principle applicable to the exceptio doli is applicable. See Weinerlein v Goch Bldgs. Ltd. (1925 AD 282 at pp. 292. 293); Waterval Estate & Gold Mining Co. v New Bullion Gold Mining Co. (1905 T.S. 717 at p. 722) and Baumann v Thomas (1920 AD 428 at p. 436).

As to The application for leave to file a third alternative plea, there is no rule of construction that words may be supplied in one part of a contract merely to make it consistent with another part. See Cohen v Lewis (1938 W.L.D. 49 at p. 57).

G. Findlay (with him F. Truter-Boshoff), for the respondent: A true suspensive condition mus suspend the whole contract to a definite point of time and must bring the whole contract into unqualified operation when that time arrives. See Aymard v

1941 AD p45

WATERMEYER, J. A.

Webster (1910 T.P.D. 123 at p. 129) and Stiglingh v Theron (supra at p. 1003). The first alternative plea seeks to introduce a prior oral variation of the contract in the guise of a suspensive condition which is impossible. See Cohen & Sons v Lockett (1916 W.L.D. 51).

As to the second exception - to found an estoppel - appellant must show (a) the representation of an existing fact. See Baumann v Thomas (supra at pp. 435-6); Halsbury's Laws of England. (Hailsham ed., vol. 13, para. 539); Spencer-Bower on Estoppel (p. 39, sec. 42); and (b) prejudice from having, acted on the representations. See Halsbury's Laws of England (Hailsham ed., vol. 13, para. 547).

An estoppel prevents not the making of a claim but the averment of a fact. See Halsbury (ibid para. 448).

The third alternative plea was properly disallowed.

Pirow, K.C., replied.

Cur adv vult.

Postea (October 15th).

Judgment

Watermeyer, J.A.:

It appears from the record that in 1937 the plaintiff instituted an action against the...