Van Coppenhagen v Van Coppenhagen
Judge | Millin J, Malan J and Neser J |
Judgment Date | 10 March 1947 |
Citation | 1947 (1) SA 576 (T) |
Hearing Date | 27 February 1947 |
Court | Transvaal Provincial Division |
Millin, J.:
This is an appeal, by leave, from a decree of provisional sentence granted by BLACKWELL, J., in Chambers. The action was on a promissory note made by the defendant, now appellant, in favour of the plaintiff, now respondent, on the 1st January, 1933. The note was for £300 with interest at ten per cent. per annum and was due on the 28th February, 1933. It was admitted that the appellant had made the following payments and no more: On the 1st November, 1943, £3 10s.; on the 9th December, 1943, £3 10s.; on the 11th January, 1944, £3 10s.; on the 30th March, 1944, £7; on the 8th June, 1944, £7; on the 4th July, 1944, £3 10s.; on the 3rd August, 1944, £7; on the 12th September, 1944, £3 10s.; on the 14th October, 1944, £3 10s.; on the 1st February, 1945, £12. The total of these payments is £54, and it will be seen that they
Millin J
were all made after the amount of arrear interest equalled the amount of the capital sum, which happened at the end of the year 1942. The respondent restricted his claim of interest to the sum of £300 and provisional sentence was pronounced for £300 capital, £300 interest and costs. The appeal is brought on three grounds: (1) that on the evidence the promissory note was novated and could not form the basis of any action against the defendant; (2) that if the plaintiff was entitled to sue on the promissory note, the amount of interest awarded should have been only £246, i.e. £300, less the £54 paid between the 1st November, 1943, and the 1st February, 1945; (3) that as by virtue of sec. 29 (1) (d) of Act 32 of 1944, an action on the note could have been instituted in a magistrate's court, Supreme Court costs should not have been awarded.
The appellant relied on an agreement contained in a letter which passed between the parties. These are letters of the 26th January and the 1st February, 1945, addressed by the appellant to the respondent; and the respondent's reply dated the 26th January, 1945. Before dealing with the agreement to be extracted from this correspondence, it is necessary to set out some facts which appear from the appellant's affidavit and letters. The parties are brothers. The consideration for the note was a loan of £300 made by the respondent to the appellant. The respondent was in possession of a certain movable property belonging to the appellant, which the plaintiff claimed to hold as a pledge. This property included some gramophone records and books. There was an arrangement which began on the 1st November, 1943, by which the appellant was to pay the respondent £3 10s. per month. These payments the appellant stopped after the 14th October, 1944. The reasons for this he explains in his letter of the 26th January, 1945. First, the respondent had refused a request to return the appellant his books and gramophone records; second, the respondent, who had by that time received £42 after waiting nearly eleven years before he got anything at all, had made the 'high-handed demand' to be paid at the rate of £10 per month. This the appellant regarded as deplorable. It had 'put his back up' and so he discontinued the payments of £3 10s. a month. However, he expressed himself as very keen to liquidate the amount owing as soon as possible, and so proposed that if the respondent would let him have his books and gramophone records back he would pay the arrears of £3 10s. a month for...
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