Versfeld v South African Citrus Farms Ltd

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Curlewis JA, Stratford JA and Roos JA
• Judgment Date: 26 June 1930
• Court: Appellate Division

Stratford, J.A.:

In this action the plaintiff, who is now the appellant, claimed £3,000 for breach of warranty. The defendant in its plea admitted a breach of warranty and its liability in damages, and alleged a payment into Court on the 21st November, 1929, of the sum of £600. The defendant prayed fop judgment in its favour with costs incurred subsequent to the date of the said payment into Court.

The Provincial Division (GARDINER, J.P.) awarded the plaintiff £500 damages with costs to the date of payment into Court, costs thereafter to be paid by the 'plaintiff.

The plaintiff now appeals against that judgment. Subsequent to the notice of appeal the defendant tendered an additional £100 and consented to the judgment being altered to one for £600 with costs of appeal to date of tender. Admitting that the tender was a good tender the plaintiff did not accept it and the appeal proceeded.

For the proper appreciation of the matters in dispute it is now necessary to set out briefly the circumstances in which this action arose, and it will suffice, at this stage, to repeat the learned JUDGE, PRESIDENT'S short summary of them, which is as follows: "The plaintiff is a farmer in the district of Piquetberg. The defendant carries on the business of citrus nurseries in the Transvaal. In September, 1925, the plaintiff ordered from the defendant 1,000 Valencia Late Orange Trees. This variety of orange has the advantage that it bears late, and that the fruit does not drop from the trees. Consequently it is available for sale in the summer, at a time when the season for many other oranges is over. The plaintiff was, therefore, specially desirous of obtaining Valencia Lates. It was also important to him that there should be no other varieties in the orchard which he proposed establishing. If other varieties were mixed with the Valencias, difficulties in picking would be involved; his employees, when instructed to pick earlier oranges, might easily make mistakes and mix them with Valencias, which he intended to keep for the late season. This much, I think, is common cause.

"Defendant accepted the order and supplied 1,000 trees which were supposed to be Valencias. But in March, 1928, it appeared that some of them did not belong to that variety. It is impossible at an early stage to distinguish Valencias from other varieties; it is apparently only when a tree begins to bear that its variety

Stratford, J.A.

can be ascertained. Consequently the defendant requested the plaintiff not to remove the trees, and it is not contended that there has been any delay in now bringing an action. The plaintiff says that of the 1,000 trees, 424 are Valencia Lates, 424 are other varieties, 152 have not yet been identified. No evidence was called to contradict the figures, and in argument defendant's counsel did not dispute them."

The action is solely concerned with the measure and amount of damages to be awarded, but into this controversy a number of factors enter and each of these factors is the subject of dispute.

The principle of assessment of damages can be simply stated. The plaintiff must, by monetary compensation, be put into as good a position financially as he would have been if there had been no failure by defendant in delivery of the 1,000 Valencia Late Orange trees, which the plaintiff bought. The further principle that the plaintiff is bound to take reasonable and proper steps to minimise his damages when faced with the consequences of a breach by the defendant, is equally unquestionable. To apply these principles the learned JUDGE PRESIDENT proceeded to enquire in what manner, in what time, and at what cost could the plaintiff's orchard of 1,000 trees be restored to the position it would have been in if 1,000 Valencia Lates had originally been delivered.

To the cost of restoration had then to be added the financial loss the plaintiff would suffer pending the time such restoration could be effected. To this method of approaching the problem, no objection is taken by either party; but on the first question which, for shortness, I will call that of "restoration" there was hot dispute as to the time it would take. It is admitted that the plaintiff is and was entitled to a homogeneous orchard of 1,000 Valencia Late trees. At the time of action the non-Valencias, wrongly supplied, were interspersed among the true Valencia variety and there were said to be serious horticultural objections to planting new young trees among the older and proper variety. The plaintiff, therefore, proposed to regroup the Valencias by transplanting a number of them, and then on adjoining but separate ground to plant the necessary number of new Valencia plants to make up the deficiency. Experts, however, called by the defendant disagreed with this method of "restoration" and were emphatic that the most economic and effective way of ultimately obtaining a

Stratford, J.A.

homogeneous orchard of the 1,000 Valencias, which the plaintiff desired and was entitled to, was to leave all the trees in situ and simply to "rebud" the non-Valencias and so turn them in to the Valencia variety. Faced with this choice of methods the learned JUDGE PRESIDENT accepted the views of the experts - Messrs. Clarke-Powell and Simmonds. He said: "I was very favourably impressed with Messrs. Clarke-Powell and Simmonds. They are men of high scientific attainments and great practical experience, and they gave their evidence very fairly. of course, where local knowledge is an important factor, their evidence must be taken subject to the qualification that they know little of Piquetberg. But on general questions of horticulture, I prefer them to any of the witnesses who testified before me. I accept their view that the best way of dealing with the situation, that has arisen in plaintiff's orchard, is to rebud the non-Valencias."

A Court of Appeal would not be justified in disturbing this finding supported, as it is, by clear and reasonable evidence. Indeed we did not understand Mr. Buchanan, in the course of his very thorough and helpful argument, seriously to challenge the Court's conclusion on this matter. The cost of rebudding (namely £100) was also not questioned. It was, however, on the question of the time it would take for the rebudded trees to reach a state of productivity, equal to that of originally planted trees, that serious controversy arose. From what I have said above, on the method of assessing plaintiff's damages, the importance of this question is obvious. Up to...