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Trotman AND Another v Edwick [1951] 1 All SA 441 (A)
Law of Damages (LPL4802)
University of South Africa
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TROTMAN AND ANOTHER v EDWICK [1951] 1 All SA 441 (A)
Division: Appellate Division Judgment Date: 27 November Case No: not recorded Before: van Den Heever JA, Hoexter JA, and Fagan JA Parallel Citation: 1951 (1) SA 443 (A) . Keywords . Cases referred to . Judgment .
Keywords
Damages Amount Contract Induced by fraud How damages assessed
Fraud Damages Assessment
Cases referred to:
_Beukes v Bekker _ 1924 EDL 4 Referred to
_Caxton Printing Works (Pty) Ltd v Transvaal Advertising Contractors Ltd _ 1936 TPD 209 Considered
_Steyn v Davis and Darlow _ 1927 TPD 651 Referred to
Page 442 of [1951] 1 All SA 441 (A) View Parallel Citation
Judgment
VAN DEN HEEVER, J.: This is an appeal from a judgment of SEARLE, J., in an action in the Cape Provincial Division. Appellants as the sellers of the property known as Aunaghmore and Magdala Mount in Muizenberg brought an action against respondent as buyer to take transfer of the said property against payment of £12,150 being the balance of the purchase price. In reconvention respondent claimed from appellants damages in the amount of £2,500 on the ground that they had induced him by fraudulent misrepresentations to purchase the property. When the action commenced respondent had taken transfer and the only issue remaining for trial was the claim in reconvention. Respondent also claimed the value of some movables alleged to have been sold and not delivered to him, but it is sufficient for the purposes of this judgment merely to mention that fact. For convenience I propose henceforth to refer to respondent as the plaintiff and to appellants as the defendants.
The facts averred by plaintiff in the pleadings are these: on the 6th January, 1949, defendants, who are married to each other out of community of property, sold to plaintiff a piece of land with two flats on it for £11,212 10s. 0d. The flats are enclosed by a garden wall and are built upon land which at the time of the sale
Page 443 of [1951] 1 All SA 441 (A) View Parallel Citation
was registered in the names of defendants, but twosevenths of the land enclosed by the garden wall belongs to the City of Cape Town and had been leased to defendant's predecessor in title at a nominal yearly rental. At all material times defendants occupied the two pieces of land as a whole, using the municipal land as a garden and for the purpose of gaining access to the upper flat. At all material times defendants were aware of the fact that the ground referred to belonged to the Municipality. During the negotiations leading up to the sale the first defendant acting on his own behalf and as duly authorised agent for his wife represented to plaintiff by words and conduct that all the land enclosed by the garden wall was their property which they were offering for sale. Relying upon these false and fraudulent representations, which were material and induced him to do so, plaintiff signed a deed of sale in the belief that he was buying the land enclosed in the garden wall, whereas what he bought was the enclosed area less the municipal land. The value of the property sold is £2,500 less than the purchase price which the plaintiff agreed to pay. He therefore claimed that amount as damages.
Defendants pleaded that prior to the conclusion of the sale plaintiff was told that there was a nominal yearly payment due to the Cape Town City Council for the use of a small portion of land over which a pathway ran to defendant's ground and that it was not likely that the Council would ever require it and that there was no further mention of any land prior to the sale that eventuated. They denied the intention to defraud and invoked a special clause contained in the deed of sale:
"The seller sells the land as it was held by him" (which was fully described in the deed of transfer and diagram) "without any warranty express or implied as to its extent and subject to all conditions as are contained in the deed of transfer, etc."
After reviewing the pleadings the learned trial Judge observed:
"The plaintiff's claim as to the immovable property has a twofold basis, namely that he was induced to enter into the contract (A) by the fraudulent conduct of defendants in not disclosing that the land to which they had title and which they were selling did not include the municipal strip, and (B) by the fraudulent verbal misrepresentations of the first defendant
as to the dimensions of the land which formed the subject matter of the sale."
Although it cannot affect the decision of this case it is clear that the learned Judge misunderstood the true intent and import of a paragraph in the pleadings. After averring the fraudulent misrepresentations made by word of mouth and conduct during the course of the negotiations leading up to sale and specifically setting out their nature and content, plaintiff alleged that at no stage prior to the conclusion of the deed of sale did either of the defendants disclose to plaintiff the fact that the municipal land was not their property. This was clearly no fresh averment of fraudulent misrepresentation by silence. Its intent was to allege that having made a certain impression upon the mind of plaintiff by fraudulent misrepresentations, they did not thereafter and before the sale
Page 444 of [1951] 1 All SA 441 (A) View Parallel Citation
disabuse his mind consequently the effect of the misrepresentation continued to operate until the deed of sale was signed. It furnishes a link in the causal chain between the alleged false representations and the conclusion of the sale. The misconception had one unfortunate result, however defendant's counsel addressed to us a long argument to persuade us that mere nondisclosure does not necessarily amount to fraud.
The misrepresentations complained of are two. It is alleged that during the negotiations Trotman said to plaintiff:
"Look at the house (meaning thereby the said two flats) how it stands and look at the extent of the land that it stands upon. The house is built on two ¼ acre plots and the frontage is about 150 feet."
The second misrepresentation alleged is one by words as well as conduct, namely that Trotman paced off the frontage of the two pieces of land on Boyes drive and said, "I make it roughly 150 feet" including in his measurement the boundary of the piece of municipal land which is destined to be a road in future.
I do not propose to deal with the evidence in detail. Defendants had considerable experience in dealing in immovable property. They bought the property in question, took transfer and within a few months sold it to plaintiff at a profit of nearly £4,000. Admittedly they knew that a portion of the property belonged to the municipality. In fact the entrance to the porch of one flat is partly built on municipal land. They admit that any person being shown over the property must, unless otherwise informed, infer that the enclosed area belonged to the owner of the flats. It seems to me that offering "the property" was in itself a misrepresentation. But the learned trial Judge found as a fact that the verbal representation contained in the "puffing" was made. After a careful and thorough examination of the evidence and consideration of the arguments which Mr. _Kellaway _ on appeal has again advanced before use, SEARLE, J., observed:
"The plaintiff, in my opinion, has established on the evidence a strong balance of probabilities in favour of the correctness of his version and I find accordingly that he has discharged the onus. "
Mr. _Kellaway _ has not persuaded me that that finding was in any respect a product of faulty reasoning in fact, I may say that I am satisfied that the learned Judge's conclusion is right. In the circumstances there would be no point in making a lengthy survey of the evidence or the arguments advanced. I may however refer to the alleged disclosure made by defendants. The first defendant admittedly never disclosed to plaintiff that what he was ostensibly selling contained an area of municipal land. He relied entirely upon his wife's assertion that she had made such a disclosure. According to her evidence she informed plaintiff at the first viewing of the flats that "a small strip down near the path" belonged to the municipality. To my mind the disclosure in its alleged context is so irrelevant and improbable that the story is hard to believe but if true it is in itself a misrepresentation, implying
Page 445 of [1951] 1 All SA 441 (A) View Parallel Citation
that the path, which was actually on municipal ground, was on ground which defendants were offering for sale.
According to their pleadings the defendants were fully aware of the facts. They are found to have misrepresented the facts to plaintiff and sold the property to him at a handsome profit. It seems obvious that if plaintiff had known that the property which he thought he bought was destined for a road which would reduce its area by two sevenths, traverse his garden, destroy the symmetry of his layout, close the access to one of the flats and compel him to make expensive provision on a steep gradient for other means of access to one flat, he would not have bought at all or not at the figure which he paid for it. To my mind the inference is inescapable that the misrepresentations were made with fraudulent intent, in reliance upon the "no warranty" clause which is apparently a standard clause in printed deeds of sale at the Cape
Mr. _Kellaway _ contended that since plaintiff was looking for a habitation he was more interested in the flats than in the extent of the land upon which they stood that he bought the property because his wife wanted him to do so because his daughter was ill and they wanted a home for her that consequently the misrepresentation was not the inducing cause. It is an extraordinary contention. It would amount to this: if the seller of a motorcar fraudulently persuades me to buy a motorcar by representing that it is in working order, while in fact it is minus the engine, but it can be shown that my paramount motive in buying that particular car was that I wished to be the proud owner of a type of car which Royalty patronises, I cannot rescind. I consider we may leave that argument and proceed to the only interesting and arguable issue arising out of this appeal, namely what is the measure of damages.
SEARLE, J., held that the measure of damages in an action on fraudulent misrepresentation in the case of a sale is the difference between the price paid and the fair value at the time of the purchase. On reasoning that was not attacked before us he came to the conclusion that a fair valuation of the property sold at the time of the contract
commencement of the negotiations and their effect continued to operate throughout the bargaining. At no time did plaintiff make an offer for what he bought but only for what he was misled into thinking he was buying. It is plain that he suffered loss as a result of being misled and there are and can in the circumstances of this case be no other data from which the extent of that loss can with reasonable exactitude be calculated than those adopted by the Court a quo.
In my judgment the appeal is dismissed with costs.
HOEXTER, J., and FAGAN, J., concurred.
Appearances
_EA Kellaway _ Advocate/s for the Appellant/s
_MA Diemont, KC _ Advocate/s for the Respondent/s
_Thompson and Smithers, Wynberg Goodrick and Franklin, Bloemfontein _ Attorney/s for the Appellant/s
_Syfret, Godlonton and Low, Cape Town GA Hill, Bloemfontein _ Attorney/s for the Respondent/s
Trotman AND Another v Edwick [1951] 1 All SA 441 (A)
Course: Law of Damages (LPL4802)
University: University of South Africa
