Weber and Pretorius v Gavronsky Brothers

• Jurisdiction: South Africa

Weber and Pretorius Appellants v Gavronsky Brothers Respondents
1920 AD 48

1920 AD p48

Citation	1920 AD 48
Court	Appellate Division, Bloemfontein
Judge	Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
Heard	October 23, 1919
Judgment	November 3, 1919

Flynote : Sleutelwoorde

Principal and agent — Auctioneer — Stolen property — Compromise with owner — Right of agent to claim indemnity — Notice of compromise — Ordinance 6 of 1904 (T.), sec. 27.

Headnote : Kopnota

Sec. 27 of the Transvaal Ordinance No. 6 of 1904 provides that if an auctioneer sells any stock which shall be proved to have been stolen he shall be personally responsible to the owner for the full value thereof.

Appellants, a firm of auctioneers at Pretoria, acting on the instructions of respondents sold by auction certain ten oxen, Thereafter these oxen were claimed by S from whom they had been stolen and six of them were returned to him, the remaining four having been slaughtered. In respect of these four oxen S claimed from appellants the sum of £72. This claim appellants compromised for £60 and then sued respondents in a magistrate's court for £8, the difference between the amount paid to S and the sum of £52 the price realised at the sale of the oxen and retained by appellants. The Magistrate gave judgment for respondents on the ground that £52 was the full value of the oxen and on appeal to the Transvaal Provincial Division this decision was sustained.

On appeal from the judgment of the Provincial Division, Held that as the Appellate Division was satisfied that appellants in effecting the compromise with S acted bona fide, after enquiry, and with care and prudence they were entitled to sue respondents for the amount of the compromise so made and paid by them even though respondents had no notice of the compromise.

The decision of the Transvaal Provincial Division in Weber & Pretorius v Gavronsky Brothers, reversed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (WESSELS, A.J.P., and LANGE, J.; CURLEWIS, J., dissenting),

1920 AD p49

sitting as a Court of Appeal from a decision of the Resident Magistrate, Pretoria.

Appellants sued respondents in the Magistrate's Court to recover the sum of £8 being the balance of an amount which they had paid in order to compromise a claim made against them by one Simon.

The Magistrate gave judgment for the defendants and on appeal this decision was, by a majority, sustained.

Plaintiffs appealed after obtaining special leave.

The facts are stated in the judgment of JUTA, A.J.A.

A. C. Malan, for the appellants: The Magistrate found that the value of the oxen was £52, but the evidence of the owner, of the appellants and the prices realised by their subsequent sale at Johannesburg show that their full value was £60. The owner must be indemnified. Special merits of animals can be taken into account. The price realised at the sale is not conclusive evidence of the value.

The value at the time of theft or the highest value reached since the theft should be taken.

An agent is entitled to be reimbursed for expenses and loss which he has incurred as agent of the principal. See Adamson v Jarvis (4 Bing. 66 L.R. 130, p. 693); Trimble v Plunkett (1910, W.L.D., p. 220); Blumenthal v Bond (1916 AD 29); Halsbury's Laws of England (Vol. 1, secs. 417, 418).

An agent has a right to compromise a suit when the principal has been notified, and refuses to intervene. See Pettman v Keble (9 C.B. 701 and 137 Eng. Rep. 1467); Broom v Hall (17 C.B., N.S. 503, 140 E.R,. 911); Walker v Hatton (10 M and W. 249 and 62 Rev. R. 600); Smith v Compton (3 Barn and Ad. 407 and 10 E.R. 146); Short v Kalloway (11 Ad and Ellis 28 and 113 E.R. 322); Tindall v Bell (11 M and W. 228 and 63 Rev. Rep. 584); Blyth v Smith (5 M and G. 405 and 134 E.R. 622); Mors le Blanch and Another v Wilson (8 Common Pleas, 227); Voet, 21, 2, 22; Grotius Introduction, 3, 15, 4; Nunan v Meyer (22 S.C. 203).

O. Pirow, for the respondents: The facts in this case take it out of the rule laid down in the cases quoted. We notified appellants before they compromised that the value of the oxen was £52. They should have defended the action.

1920 AD p50

Where an agent has specific instructions not to compromise, he cannot recover from the principal if he does so.

The actual value is the full value, and the market value is strong evidence of the actual value. See Frixione v Taglialerro (10 Moore's P.C., 175).

Absence of negligence is essential to success in an action of an agent against his principal for losses.

The question of absolution from the instance was not raised in the R.M. Court, but first in the T.P.D. He is not, therefore, debarred, but the parties in the R.M. Court must have felt that this point could not arise.

Malan, replied.

Cur adv vult.

Postea (November 3rd).

The judgment of the Court was delivered by JUTA, A.J.A., as follows: -

Judgme...