Wilken v Kohler

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes J, Solomon J, Maasdorp JP and De Villiers JP
• Judgment Date: 11 April 1913
• Citation: 1913 AD 135
• Hearing Date: 07 March 1913
• Court: Appellate Division

Innes, J.:

In the mouth of November, 1911, the defendant Wilken advertised for sale in a Cape Town newspaper his farm Carolina, situated in the Vredefort district of the Orange Free State. The property was described as being "in extent 700 morgen . . . . with twelve morgen under irrigation, partly sown with lucerne." The plaintiff's father was at that time desirous of purchasing a farm for his son. Having seen the advertisement, the two Kohlers proceeded to Kopjes, a village in the immediate vicinity, where they interviewed one Boshoff, a law agent, who was representing the defendant in the matter, and certain negotiations took place. Thereafter they saw both Wilken and Boshoff on the farm, and the boundaries were pointed out. In the result, a verbal agreement to purchase the property for £2,700 was come to, the money was duly paid, and transfer was passed to the plaintiff, who took, and still retains, possession of the land. Having discovered that the amount of irrigable ground had been materially overstated, the plaintiff sued for a refund of £600 on the broad ground that he had acted upon the misrepresentations of the defendant upon a material point in the transaction, and was entitled to be recouped for the difference between the irrigable extent he was induced to expect and that which he actually received. There was no allegation of fraud or of knowledge on the part of the defendant that the representations made by himself or his agent were exaggerated or unfounded. The declaration, indeed, alleged that the boundaries were pointed out as including an actual area of lucerne lands under irrigation from the dam approximately twelve morgen in extent. But the trial court did not so find, and on the evidence such a finding could not be supported. The action succeeded, the Provincial Division by a majority holding that the plaintiff had been induced to enter into the verbal agreement, to pay the price and to take transfer by the representations in the advertisement that there were on the farm twelve morgen of irrigable soil capable of growing lucerne, whereas, in fact, there were only seven. In these circumstances damages in the sum of £400 were awarded.

Innes, J.

This judgment is attacked on two grounds. First, that by the local law of the Free State no contract for the sale of land not reduced to writing is of any validity, and that therefore the present suit, based upon an oral agreement, cannot succeed. Second, that even if the action as conceived would lie, the plaintiff, having elected to retain the property after knowledge of the defect, cannot claim damages, inasmuch as he admits that the farm is worth more than he paid for it. Both the questions thus raised are important and not free from difficulty; but, as I have come to the conclusion that the appeal must be allowed upon the first ground, there is no necessity to express any opinion upon the second. The original frame of the declaration was not very happy; and in spite of several amendments it is still far from clear. The wording of the new seventh paragraph would seem at first deliberately designed to found the plaintiff's case upon some ground other than contract, - using that word in its strict sense as meaning a concluded agreement legally enforceable. And it may be that the, object of the pleader who drafted that section was to cast the plaintiff's claim in the form of a condictio sine causa. Had the matter proceeded on those lines, the question would have arisen whether in the circumstances proved, it was possible by that form of action to obtain a refund of portion of the money paid while retaining the ownership of the farm. But, there is no need to consider that point, because the matter did not so proceed; and no arguments dealing with the dispute from that point of view were addressed to us. Both sides approached the case on the assumption that the claim was based upon the original verbal agreement subsequently carried into effect. More especially the plaintiff's counsel, who must be taken to know what he meant by his own declaration, contended that by carrying out an arrangement originally inchoate the parties had validated it retrospectively. According to him, the action was one ex empto. The majority of the trial court took substantially the same view - namely, that the cause of action was to be found in the contract; save that in their opinion the suit was one not ex empto, but quanti minoris. Under these circumstances we are, I think, bound to read the declaration as embodying a demand for damages founded upon the breach of a representation by the seller concerning the quality of the specific thing sold. An English lawyer would probably describe the cause of action as a breach of warranty. Because the undertaking alleged to have been given by

Innes, J.

the seller in this case, relating as it did to an important quality of the thing sold, undoubtedly formed a material part of the contract of sale, if such a contract came into existence. And whatever technical definition best fits this action, it is clear that as presented it claims monetary compensation for the breach of a material portion of the contract, and is therefore based and founded upon the contract itself.

The question is whether such an action will lie, in view of the Free State Ordinance, No. 12, 1906, sec. 49; which provides that "no contract of sale of fixed property shall be of any force and effect unless it be in writing and signed by the parties thereto, or by their agents duly authorised in writing." The trial court held that the effect of these words was to render oral agreements for the sale of such property not void, but merely voidable at the option of either party; that a provision of that nature might be, and in the present case had been, waived by both parties, and that once waived the oral agreement became a contract binding upon each of them. With that view I am unable to agree. The language of the section is perfectly plain; no unwritten contract of the kind referred to is to be of "any force and effect." Now, a contract which is of no force and effect is void. No emphatic adjectives, and no redundant repetition, could express a conclusion of nullity more effectually than do the simple words which the Legislature has employed. Nor is there any reason why we should refuse to give effect to these plain provisions. The language is precise and clear, and it is for the party who would water it down to show some ground for so doing (see Magdalen Hospital v Knotts, L.R., 4 A.C., at p. 332). We were referred to a passage in Maxwell (Interpretation of Statutes, p. 287), and to the cases there cited, in which English courts had given to the statutory word "void" the more liberal meaning of "voidable." No doubt, there are such cases, though I venture to think that the trend of modern decisions is as far as possible to give full effect to clear legislative language. The same passage in Maxwell, and the same authorities...