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355/82
BARNEY HAROLD GETZ and
MONA GETZ
Carrying on business in co-partnership under the style of
PERFECTO BUSINESS BROKERS
and
CHRISTOS PETROU SPYRIDES
MILLER, JA :-
355/82
N.v.H.
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
GARNEY HAROLD GETZ and
MONA_GETZ Appellants
carrying on business in co-partnership under the style of
PERFECTO BUSINESS BROKERS
and
CHRISTOS PETROU SPYRIDES Respondent
CORAM: MILLER, CILLIé, JJA, et HOWARD, AJA.
HEARD: 20 MARCH 1984
DELIVERED: 29 MARCH 1984
JUDGMENT
MILLER, JA :-
The appellants (husband and wife), who
carry on business in partnership under the name of
Perfecto /
2 Perfecto Business Brokers, sued the respondent for payment
of the sum of Rl 750, with interest thereon. The amount claimed was said
to
represent the agreed commission payable in respect of the sale of the
respondent's steakhouse business, known as "Steers of Edenvale",
for the sum of
R35 000-00. The cause of action alleged was that the appellants, having been
given a mandate by the respondent to
find a buyer for the said business, duly
performed such mandate and were the effective cause of the sale. The respondent
denied the
essential allegations in the appellants' particulars of claim. After
hearing the evidence of Mr Getz (one of the partners), the respondent
and
two of /
3 two of the three persons who purchased the business, and the
respondent having closed his case, the Court a quo (GOLDSTONE, J,)
absolved the
respondent from the instance, with costs. The appeal is against the whole of
that order.
The Court a quo found
(a) that the respondent had indeed discussed the sale of his business with Getz and given him a mandate to find a buyer, (b) that Getz had referred the purchasers to the respondent and had been the effective cause of the sale and
( c ) that the quantam of the commission
payable to the agent upon successful performance of the mandate had by agreement been fixed at 5% of the purchase price.
The, reason /
4
The reason why, despite these findings in the
appellants'
favour, the learned trial Judge did not
enter judgment for the appellants may
be gathered
from the following extract from his judgment:-
" the question which has caused
me much anxious consideration is whether
the plaintiff has discharged the onus of proving that it received the mandate, i.e., not Getz but Perferto Business brokers. For that is the plaintiff's case. If the plaintiff does not prove that the partnership, namely Perfecto Business Brokers, received the mandate, it cannot succeed on the basis on which it approached-the Court."
The learned Judge, later in the judgment,
concluded
that there was "substantial doubt" on the
question whether Getz "canvassed
the mandate on behalf
of the /
5 of the plaintiff partnership" and that therefore the onus resting on the
appellants had not been discharged. Hence the decree of
absolution from the
instance.
Counsel for the respondent was in certain respects critical of the
trial Court's findings (a), (b) and (c) above. It was contended
that the
evidence of Getz was suspect and that it was even open to doubt whether the
appellants discharged the onus of proving certain
elements of their cause of
action other than the element relating to the capacity in which Getz canvassed
the mandate . The learned
judge's findings under (a), (b) and (c) were made
largely on acceptance
of Getz's /
6 Gelz's evidence. It is clear from the judgment that
GOLDSTONE, J, although he had "certain reservations" about the demeanour of
Getz
and criticised certain aspects of his evidence, regarded him as a "far more
impressive" witness than the respondent. On several
matters in which the
evidence of Getz was in direct conflict with that of respondent, the learned
Judge preferred Getz's evidence.
I am unable to say that he was wrong in such
assessment or that he was not justified in making findings (a), (b) and (c)
above. The
sole issue in this case, then, is whether it was established on a
balance of probabilities that the mandate given to Getz by the
respondent was
accepted
by him /
7
by him on behalf of the partnership carrying on
business as Perfecto Business Brokers, as alleged
in the pleadings. Because of the conclusion to
which I have come on the
facts relative to that
issue, it is not necessary to consider whether, if
the mandate were given to and accepted by Getz
without any mention of the
partnership trading as Perfecto Business Brokers, the action brought by such
partnership, consisting of
Getz and his wife, would necessarily fail.
The
gist of Getz's evidence is this. He and his wife began to carry on business
under the name Perfecto Business Brokers ("Perfecto")
on 1 October
1979 /
8
1979. He had previously worked for a company called Hillrand Business Brokers (Pty) Ltd ("Hillrand") and had been accustomed to carrying, and using for the canvassing of business for his principals, that company's business card. During October, business cards for Perfecto were printed and he used such cards for purposes similar to those for which he had previously used the Hillrand cards. During October he visited the Steers of Edenvale steakhouse. He there met the respondent who appeared to be keen on selling that business. They discussed the business and he was given details by respondent about turnover, profit, rental and other relevant matters. Respondent told him that his
asking /
9 asking price for the business was R45 000, but that terms
could be arranged. The commission payable in the event of a sale eventuating
would be 5%. Getz said that he there and then noted the details given to him on
a mandate form (Exh "A"). That form was produced
in evidence. It is headed
"Perfecto Business Brokers", is dated "11/10/1979", it refers to "Steers
Steakhouse", and numerous details
concerning the business are noted in the
appropriate places on the form. Getz said that he invited the respondent to sign
the form
but the respondent refused, saying that "his word was his honour" and
adding that if a purchaser were found he would pay the commission
of /
10 of 5% - or "even more" than that. According to
Getz, he left with the
respondent the printed business card of "Perfecto", which bore the full name of
the partnership firm and the
names "B Getz/Mona", the last name being that of
Getz's wife. It is not necessary to detail the further activities of Getz
relative
to the finding of a buyer, because of the unassailable conclusion of
the Court a quo that he was in fact the effective cause of the
sale. It is
relevant to observe, however, that his diary reveals an entry dated 27 March
1980 which refers to a conver= sation with
the respondent and contains a note
"spoke to Spyrides if Steers is still for sale". The explanation given by Getz
was
that /
11
that as some months had gone by since obtaining
the
mandate, he telephoned the respondent to ask if the
business was still for sale. And on 17 June 1980
he wrote to respondent under Perfecto's letterhead
in these terms :-
"Dear Mr Spyrides RE:STEERS OF_EDENVALE
Perfecto Business Brokers, have introduced Mr Malcolm David Kuehn of Parkhurst and Miss Jackie Arndt, to your business 'Steers of Edenvale'. They are busy negotiating with you.
Please give them your best attention and keep us informed. Our commission is 5% of the purchase price.
Thanking you Yours faithfully
PERFECTO BUSINESS BROKERS"
No reply /
12 No
reply, whether written or verbal, was received to this letter. On one of
Perfecto's office files there is a note "spoke to Spyrides
and said they are
taking over l/8/80 and he will pay us commission". This note is dated 23/7/80 -
the words "taking over 1/8/80"
clearly refer to the purchasers of the
respondent's business. Getz explained that this note was made after he had had a
conversation
with respondent on the telephone. He said that ho introduced
himself at the commencement of the conversation as "Getz from Perfecto
Business
Brokers" and that thereafter, following upon his request for payment of the
commission, the respondent said that the purchasers
were taking over
on /
13
on 1 August and he assured him that he would get his
commission. On the following day, 24 July, 1980,
appellants' attorney sent the following letter to
respondent:-
"We act for Messrs Perfecto Business Brokers and have been instructed to
communicate with you relative to the sale of your business.
With reference to the above matter clients desire us to confirm your advice to them to the effect that you are handing over the business to the purchaser on the 1st proximo and that you would then effect payment of the commission due to our clients. Our clients look forward to receiving payment of such commission in due course."
This letter elicited the following reply, dated
6 August, 1980:-
"I am /
14
"I am in receipt of your letter of the 24 of July concerning Perfecto business brokers and I have to put on record the following. Not only I have never heard of Perfecto B B, but neither have I at any time given authority verbal or written, nor have I appointed the same as my agents to sell my business.
My business was advertised in the Star on five consecutive dates from Thursday
the 13 th June to the 19th June through which certain people approached me for negotiations. Need less to say that your clients are no I entitled to any commission,
if and when a sale is concluded."
When he gave evidence at the trial the respondent repeated that he had never had any dealings with nor even heard of Perfecto. Ho remembered that Getz came to the Steukhouse on one occasion in
connection /
15 connection with the possible sale of his business, but
he denied that that occasion was in October 1979 and insisted that it was
during
March, 1980. He denied giving Getz any mandate and also denied that Getz wrote
down on Exh "A", or at all, any details concerning
the business. He said that he
never saw Exh "A" at all. He admitted that Getz left with him a business card
with his name on it but
denied that that card bore the name of Perfecto. He gave
a description of the card left with him and said it was the card of some
other
concern, the name of which had something like "land" in it. The name "Perfecto",
he said, was never mentioned. Although saying
that
at /
16
at the time of Getz's visit he had not yet decided to sell,
and adding that he did not take a liking to Getz, he admitted giving him
detailed information concerning his business. When the figures and other data
recorded by Getz on Exh "A" were put to him, the respondent
admitted that they
were correct and that Getz must have got them from him. He persisted in saying,
however, that Getz nude no notes
and that he never saw Exh "A" at all.
When
questioned about the letter dated 17 June 1980 and his failure to reply to it he
appeared to suggest that he did not receive
that letter, which had been sent by
registered post. Later he said that
he might /
17 he might have received it and added the remarkable
comment that if he
did receive it, it was not a letter which called for a reply. He was also in
considerable difficulty when answering
questions concerning his reply to the
letter dated 24 July from Getz's attorney and more particularly concerning his
failure to deny
therein the assertion made by the attorney that respondent had
assured Getz over the telephone that the commission would be paid.
The learned
Judge described the respondent as a witness who tended to give "glib answers"
which he later had difficulty in justifying.
Reference was also made in the
judgment to the respondent's "disingenuous attempt" to suggest that
his own /
18 his own advertisements had attracted the purchasers.
His equivocal
evidence concerning the receipt of the letter of 17 June left the learned Judge
without any real doubt that that letter
was received by respondent. Some of the
respondent's evidence in regard thereto was described by the learned Judge as
"ridiculous".
I need merely add that in regard to several aspects of his
evidence the Court a quo observed that respondent's "discomfort was
patent".
I turn now to the evidence which, it is very clear, induced the
learned Judge, despite the generally unfavourable view he took of
respondent's
evidence, to find that it had not been satisfactorily established
that /
19 that the mandate given to Getz was accepted by him for
Perfecto. It appears from the record of the proceedings that upon closure
of
respondent's case towards (he end of the day, (he Court intimated that argument
would commence on the following day. When the
hearing was resumed next morning,
respondent's Counsel asked leave, which was granted, to re-open the respondent's
case for the purpose
of placing further evidence before the Court. The new
evidence was in the form of a business card, Exh "O", which respondent said
he
had found during the adjournment, after diligently searching amongst his papers.
He said that this was the card that Getz had
left with him on the occasion of
his visit to the Steers of Edenvale;
the /
20 the card which respondent had mentioned and roughly described
in his evidence on the previous day. Exh "O" is not the business
card of
Perfecto, but of Hillrand. Although the name, B Getz, appears on it, the
telephone numbers on the card were not those of
Getz and Perfecto but of
Hillrand, for whom Getz had worked before commencing the partnership business of
Perfecto. The respondent
explained the late production of the card by saying
that he had not realized how important it might be until after the first day's
hearing. He had, for that reason, not searched for the card prior to the trial.
He was adamant that Exh "O" was the very card left
for him by Getz on the
occasion /
21 occasion of the latter's only visit to the Steers of
Edenvale. He resisted suggestions that he might have obtained the card from
a
source other than Getz. Appellants' Counsel was given leave to recall Getz he
denied that Exh "O" was the card he had left with
respondent when he visited him
in October 1979 and firmly adhered to his previous evidence that the card he had
given respondent
was a Perfecto business card. The Court a quo, accepting as
genuine that respondent discovered the card amongst his papers during
the
adjournment prior to argument, found that in those circumstances the probability
that the card had been given to him by Getz
on the occasion of their only
meeting /
22
meeting was "overwhelming". The judgment then proceeds as follows:
"That finding appears to me to be fatal
to the plaintiff's case. It is quite inconsistent with Getz having obtained the mandate on behalf of the plaintiff."
We were invited by the appellant's Counsel,
in his heads of argument, to find that respondent's
evidence about the late discovery of the card was
suspect and was not of such quality as would justify
acceptance that Exh
"O" had been given to him in 1979
or 1980 by Getz. Some of the criticism of
respondent's
evidence in that connection is valid, but it is not
sufficient to justify rejection of the trial Court's
finding /
23 finding and I shall therefore accept for purposes of this
judgment that Exh "O" was given to respondent by Getz on the occasion
of their
meeting. 1 am unable to agree, however, that such finding was "fatal to the
plaintiff's case". Nor am I able to share the
view that the finding was
"inconsistent with Getz having obtained the mandate on behalf of plaintiff". The
production by respondent
of Exh "O" was, of course, an important factor in the
inquiry but its weight had necessarily to be assessed in the light of several
other factors, including the overall probabilities.
The /
24
The Court a quo correctly, I think, considered the real question to be whether Getz accepted the mandate on behalf of Perfecto. There is nothing to suggest that when giving Getz the mandate to find a buyer, the respondent was concerned with the capacity in which Getz was acting. There was clearly no thought of a delectus personae so far as the respondent was concerned. When the pruchasers approached him, saying that they had been sent by Perfecto, he replied that he did not know Perfecto in the context of the sale of the business, but that he knew Getz in that context. He did not say that he recognized Hillrand in that connection;
he /
25
he mentioned only Getz, The conclusion is irresistible that he
gave the mandate to Getz, regardless of whom Getz was representing.
The answer
to the question whether the action was correctly brought in the name of the
Perfecto partnership depends, therefore, upon
whether Getz accepted the mandate
on its behalf.
It appears to me that that question ought to have been
answered in the appellants' favour. Getz's evidence that at the lime of his
visit to the respondent's Steakhouse in October he had already left the employ
of Hillrand and that the Perfecto partnership was
already carrying on business,
was not contradicted
by any /
26
by any direct evidence. It is, moreover, strongly supported by Exh "A", a mandate form which, as I have earlier mentioned, bore Perfecto's name and upon which were recorded the necessary details concerning the respondent's business. There is nothing to suggest; that Exh "A" was dishonestly completed and produced for purposes of the case. The respondent's evidence that Getz did not record the details about the business on the day of his visit not only reads very unconvincingly but is extremely unlikely. The learned Judge's observation that there, was a "distinct probability" that Getz was on the day of his visit still canvassing for Hillrand and that the
Perfecto /
27
Perfecto partnership was only started thereafter, is not compatible with Exh "A". The learned Judge appears not to have given due weight to Exh "A". It was referred to by him in the course of summarizing the evidence but no further reference to it is to be found in the judgment. There was, in addition, unrefuted evidence that Perfecto business cards were printed in October, which accords very well with Getz's evidence that the Perfecto partnership started carrying on business on 1 October. It will be remembered that respondent said that the meeting with Getz took place in March 1980. If that were true it would be even less likely that when canvassing the mandate, Getz did so for
Hillrand/
28
Hillrand, not Perfecto. There is no reason, however, for
doubting Getz's evidence that the meeting took place on the date stated in
Exh
"A".
If it is accepted, (as I think it must be) that on 11 October 1979 Getz
and his wife had already started carrying on the Perfecto
partnership business,
there can be no justification for finding that Getz knowingly handed Exh "O" to
the respondent with the object
and intention of accepting the mandate for the
benefit of Hillrand. And if Getz had not yet left Hillrand, and Perfecto was not
yet
in business, the use of Exh "A" and the deliberate handing over of Exh "O"
on the same occasion would bo wholly inexplicable.
Conciliation /
29 Conciliation of these apparently irreconcilable
features would readily result if Getz, who might well at that stage have had on
his person both Hillrand and Perfecto cards, having only recently left Hillrand,
mistakenly handed the wrong card to the respondent.
This could very easily
happen, especially if, as some of the evidence indicates, the card was handed
over at
the very end of the meeting. Of course, the onus being on the appellants, such a possibility would not of itself be sufficient for discharge of the onus; but neither would the mere handing over of Exh "O" to the respondent necessarily serve to negate or reduce the force of other facts and probabilities which
strongly /
30 strongly pointed to a conclusion that Getz acted on behalf
of Perfecto. The effort that the handing over of Exh "O" might have
on other
strong indications in favour of the appellants would depend upon what inferences
could fairly be drawn from the handing
over of Exh "O". I do not think that the
production of Exh "O" justifies, in all the circumstances, an inference (or even
reasonable
suspicion) that Exh "A" was a document concocted by Getz for purposes
of the case; nor an inference that Getz, having knowingly handed
Hillrand's card
to respondent, thereafter dishonestly appropriated for his and his wife's
benefit a mandate which he had obtained
for Hillrand, or that such a course of
conduct by Getz could reasonably be
suspected /
31 suspected. Dishonest oppropriation of the mandate would,
to his knowledge, be fraught with risk of detection by virtue of his having
placed in the hands of respondent the identify and address of the party for whom
he had obtained the mandate.
On the findings of the Court a quo, the
respondent's liability for payment of commission was established. It appears to
me that the
rightfull claimant sued for payment of that established debt and
that judgment,ought to have been for the appellant. The direct evidence
of Getz
that he accepted the mandate on behalf of the partnership, when considered in
con= junction with Exh "A", the diary notes,
the correspondence,
and /
32
and respondent's reactions to the letters addressed to him and the relatively favourable view which the Court took of Getz as a witness, in my judgment con = stitutes proof on the balance of probabilities, notwithstanding the production of Exh "O".
The appeal is allowed with costs. The order of the Court a quo is set aside and there is substituted therefor the following order:
Judgment for the plaintiffs in the sum of Rl 750, together with interest thereon at the rate of 11% per annum a tempore morea to date of payment, with costs.
S MILLER JUDGE OF APPEAL
CILLIé, JA )
) CONCUR HOWARD, AJA )
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