ANDERSON & COLTMAN LIMITED v UNIVERSAL TRADING CO 1948 (1) SA

1277 (W)
1948 (1) SA p1277

Citation 1948 (1) SA 1277 (W)

Court Witwatersrand Local Division

Judge Clayden J

Heard January 15, 1948

Judgment January 22, 1948

Annotations Link to Case Annotations

[zFNz] Flynote : Sleutelwoorde

It is competent for a peregrinus whose property has been attached ad fundandam

In a contract providing for delivery F.O.B. the ownership passes to the purchaser if the
goods are delivered to the carrier in terms of the contract and in conformity with it.

Certain goods, which had been sold by the applicant to respondent, had been attached ad
fundandam jurisdictionem to enable the respondent to bring an action claiming the refund
of the purchase price. Applicant applied to have an order set aside on the ground that the
goods attached were not the property of the seller.

held , that as the purchaser had failed to show on the contested facts that the goods
attached belonged to the seller, the seller was entitled to an order setting the attachment
aside.
1948 (1) SA p1278
[zCIz] Case Information

Application to set aside an order of attachment. The facts appear from the reasons for
judgment.

H. J. B. Vieyra , for the applicants: As the contract was one F.O.B. the United Kingdom
the result is that delivery on board the ship is delivery to the respondents. There is
nothing in the present contract to vary this normal legal result. It is admitted that the
goods were delivered and in accordance with the contract. As to the effect of a F.O.B.
contract see Halsbury, Laws of England (2nd ed., Vol. 29, p. 226); Wessels, Contracts
(Vol. 2, par. 4520 et seq.); Newmark Ltd v The Cereal Mnf. Co., Ltd . (1921 CPD at p.
60); Laing v SA Milling Co., Ltd. (1921 AD 387); Nel v S.A.R . (1924 AD 30, at p. 36);
Mackeurtan, Law of Sale (2nd ed., at p. 171). On the assumption that respondents are
correct in their allegations on the misrepresentations then they would be entitled to cancel
the contract, but this does not make the applicants owners. The respondents are still
owners. They would only be entitled to payment against re-delivery of the goods. Until
re-delivery the goods remain their property.

L. E. M. Goldsmid , for the respondent: The procedure adopted is wrong. The applicants
should either have excepted to the jurisdiction (see Pollak, Jurisdiction , p. 88), or filed a
special plea. Davis v Isaacs & Co . (1940 CPD 510); Malcomess & Co., Ltd v Allkin &
Co., Ltd . (1914 CPD 526). Knight v Lensvelt (1923 CPD 444) is no authority for this
procedure. It is significant that not one case has been found by applicant in which the
peregrinus defendant in an action has applied to set aside the attachment on the grounds
that the goods are not his. There can be no passing of ownership unless the goods
delivered are in terms of the contract. In present case alleged goods did not conform to
the description in a number of respects. See Halsbury ( supra , p. 76, note 1); Vigers Bros
v Sanderson Bros . (1901, 1 K.B. 608 at p. 612); Benjamin, Sale , at pp. 343, 349, 351;
Rule 18 (5), pp. 636 - 7. There can be no acceptance unless reasonable opportunity of
inspection. Halsbury ( supra , para. 183, p. 145). In a contract F.O.B. the buyer does not
lose the right of rejection because he does not inspect until the arrival of the ship at its
destination. Halsbury ( supra , note (i)); Bragg v Villanovo (40 T.L.R. 154). Similarly in
our law ownership does not pass unless there is delivery in terms of the contract even in
F.O.B. contracts. Mackeurtan ( supra , at p. 172, note 45); Sher v Frenkel & Co . (1927,
1948 (1) SA p1279

CLAYDEN J

T.P.D. 375 at p. 379). Ownership does not pass unless and until there has been
acceptance by purchaser. Greenshields v Chisholm (3 S.C. at pp. 227 - 228); Weeks v
Amalgamated Agencies (1920 AD 218). Attachment can only be set aside if applicant
shows that ownership passed. Alternatively, not entitled to ask Court on facts to find
there has been a delivery. This involves an investigation into the merits which can't be
made on the affidavits. See Davis v Isaacs ( supra) . It would be seizing the Court with
jurisdiction which is the very thing the applicant contends the Court has not got. Prima
facie the goods not being in terms of the contract, remained the property of the
applicants. Onus is on applicants to prove they are no longer owners. Davis' case ( supra
at p. 370). Courts will require a very clear case where an incola comes to this Court to
protect his rights before it will refuse to assist him. Coetzee v Harris (1916, J.D.R. 229);
see also Halse v Warwick (1931 CPD 239). On admitted facts no opportunity for
inspection until arrival in Johannesburg and no acceptance there.

Vieyra , in reply.
Cur. adv. vult .

Postea (January 22nd).

CLAYDEN, J.: On 23rd May, 1946, the applicant company, which is an English
company and which will be referred to as the seller, sold through its South African agent
to the respondent partnership, which will be referred to as the buyer, a number of
aluminium stewpans. The order form provided for confirmation and payment by Walker
Brothers, London, the buyer's London shippers, and the terms were stated to be 'F.O.B.
U.K. Port'. The sellers' packer delivered crates containing stewpans on board the s.s.
Riebeck Castle at Southampton, England, and the price was paid. The goods arrived at
the premises of the buyer in November, 1946, and were immediately rejected by the
buyer because delivery was alleged to be late, and because representations as to the
quality of the goods alleged to have been made by the sellers' agent were alleged to be
false. Late delivery is no longer an issue in this case.
1948 (1) SA p1280

CLAYDEN J

On 27th May, 1947, on the application of the buyer, an order was granted for the
attachment of the goods to found jurisdiction in a claim for a refund of the price, and the
buyer was given leave to sue by edictal citation. Thereafter action was instituted.

The seller now applies to set aside the attachment, the order of Court granting leave to
sue by edict, the edictal citation, and the ground for this application is that the goods
attached are not the property of the seller, or alternatively, that there is a dispute as to
whether they belong to the seller or to the buyer, that that dispute cannot be settled on
affidavit, and that there should be no attachment until the buyer has shown that the goods
do in fact belong to the seller.

The first matter to be decided is whether the procedure adopted by the applicant is
correct. It is contended that it should have filed a plea to the jurisdiction. Now the order
for attachment is granted ex parte in many cases, and if the peregrinus can put before the
Court facts which show that the order was wrongly granted, because the goods attached
are not his, I can see no reason why he should be obliged to submit himself to the
jurisdiction of the Court, which was only obtained by attaching those goods, even in the
preliminary stages of an action. In such a case, had all the facts been before the Court the
attachment would not have been made, and the action could not have been brought. When
he hears of the attachment the peregrinus must, I consider, be entitled to have his
contentions considered. The order of attachment has been issued, and a proper method of
reopening the matter is, I think, to apply to set aside that order. In Knight, Ltd v Lensvelt
(1923 CPD 444) an application of this type was brought by a third person for the release
of goods which had been attached and which he claimed as his. He was not a party to the
action and could not adopt any other course. In Pearks Stores (Africa), Ltd v Lipschitz (18
C.T.R. 614) an application to set aside an attachment to found jurisdiction was brought
by the defendant in the action, based on the ground that the goods were not his. The
question of the procedure was not considered but the order was granted with no
opposition except in regard to costs. These cases point to the correctness of the procedure
adopted in this case.

Since the contract provided for delivery F.O.B. and the price has been paid the goods
would have become the property of the
1948 (1) SA p1281

CLAYDEN J

buyer when delivered into the ship if the goods were in accordance with the contract.
There is an intention of the seller to transfer ownership, there is delivery to the agent of
the buyer, and there can be inferred the intention of the buyer to acquire ownership. If
delivery of the goods to the buyer's agent is not in accordance with the contract as to time
or place ownership does not pass - see Sher v Frenkel & Co . (1927 TPD 375 at p. 379).

The contention that in a contract providing for delivery F.O.B. there can be no change in
ownership until there has been opportunity to inspect is not I think correct. Bragg v
Villanova (40 T.L.R. 154), which was cited in support of it, was not concerned with the
passing of ownership, but with the right to reject goods found on inspection not to
conform to the contract. The seller does not dispute that, if the goods were found on
inspection not to comply with the contract, the buyer, even if ownership had passed, a
matter dealt with below, could reject the goods. And if the delivery into the ship was a
delivery of goods in conformity with the contract the buyer must be inferred to have
intended to become owner of them, and all requisites for the passing of ownership were
present, even though the goods had not yet been inspected.

I have next to consider whether in a contract such as this the ownership passes if the
goods are delivered at the proper time and place but fail to conform to the contract in
such respect that the buyer could refuse to accept them on inspection. In Mackeurtan The
Law of Sale of Goods in South Africa (2nd ed., p. 172) the matter is discussed in a
footnote. It is said:
'If the goods, whether bought as specific or as unascertained, are delivered to the
carrier in terms of the contract and in conformity with it, there is valid delivery and in a
credit sale the ownership passes at once. Sher v Frenkel (1927 TPD 375). The purchaser
has no right to refuse to accept goods conforming to the contract when they do reach him,
and if he does so refuse the ownership does not revest in the seller. But if he receives
goods which do not conform to the contract, he may, of course, provided he acts
timeously, reject them, and in that case the ownership will always have been in the seller.
It is difficult to reconcile the views here expressed with dicta in Weeks v Amalgamated
Agencies (1920 AD 218, at pp. 230 - 231). . . .'

It seems to me with respect that this is a correct statement of the law and I cannot see
where it conflicts with Weeks' case. In Greenshields v Chisholm (3 S.C. 220 at p. 228)
DE VILLIERS, C.J.,
1948 (1) SA p1282

CLAYDEN J

discussing the intention of the parties to give and take ownership on delivery, says:
'Their intention must, of course, be gathered from their acts; and where a purchaser,
through his carrier, has obtained delivery there is prima facie proof of acceptance but it is
not conclusive. If the rest of the evidence clearly shows . . . that the purchaser did not
accept the goods or intended to accept them, the bare fact of delivery to his carrier is not
sufficient to pass the property to him.'

Where unascertained goods are bought and the seller delivers to a carrier the buyer
cannot, I think, by inference be said to have an intention to become the owner of the
goods so delivered whatever their state. He has an intention to become the owner of the
goods which are appropriated to the contract in terms of the contract on their delivery to
the carrier.

This view is in accordance with the English law - see Halsbury Laws of England
(Hailsham , Vol. 29, p. 76, note '1'); Vigers Bros v Sanderson Bros . (1901, 1 K.B. 608);
Benjamin on Sale (7th ed., p. 364).

In Norman, Purchase and Sale , the view is also expressed at p. 310 that
'if the goods delivered (to a carrier) are not in accordance with the terms of a contract
then, prima facie , there is not that concurrence of the minds of both parties which Voet
speaks of as being necessary for the transfer of dominium' .

He then refers to the statement of the law by DE VILLIERS, J.P., in Fine and Gluckman
v Heynecke (1915 TPD 211 at p. 214) as perhaps indicating the contrary - that even in
such a case delivery to the carrier, who is the agent of the buyer, passed ownership. The
other member of the Court, BRISTOWE, J., went to the other extreme, and held the view
that ownership did not pass until there was shown to be acceptance. In view of this
difference of opinion I am not obliged to follow the view of either learned Judge. The
statement of the law by DE VILLIERS, J.P., would mean that ownership must in this
case have passed to the buyer; and that by BRISTOWE, J., does not preclude the
inference of acceptance where the goods do in fact conform to the contract - in the case
he was dealing with they did not.

In this case the position therefore, in my view, is that the goods are owned by the
applicant if they did not conform to the contract, by the respondent if they did. Counsel
for both parties, as I have said, agree that that question whether the goods conform to
description and representations cannot be decided on the
1948 (1) SA p1283

CLAYDEN J
affidavits. Therefore whether or not the attachment should remain depends on onus . Mr.
Vieyra for the seller contends that for there to be an attachment the buyer must show that
the goods to be attached are the property of the seller, and that the matter must now be
treated as if this were an opposed application to attach. Mr. Goldsmid for the buyer
contends that since the seller admittedly was once the owner he must show a change of
ownership, and also that since the seller seeks now to set aside an order good grounds to
do so must be shown. He relies on Davis v Isaacs & Co. and Another (1940 CPD 497). It
does not seem to me that Davis' case covers the present matter. In that case the goods had
not been paid for, and so had never been owned by the buyer. The goods were in the
possession of a bank. The sellers sought firstly to show that the goods had become the
property of the bank, which was to collect the price. That contention was rejected and it
was held that the bank was an agent of the sellers. It was next sought to show that a third
party had bought and become the owner of the goods shortly before the attachment. It
was held that delivery to that third person was not proved. At p. 510 VAN ZYL, J.P.,
says:
'On what has been placed before me, it has therefore, in my opinion, not been proved
that the ownership in the goods has been transferred . . . and as, in my opinion, the onus is
on (the sellers) to prove that they are no longer the owners of the goods, I must, in the
absence of such proof, hold that for the purposes of this application (the sellers) are still
the owners of the goods.'

Where a seller is the owner of goods until shortly before the attachment and the goods are
still in the possession of his agent at the time of attachment and he sets up the case that
the goods are not his at the time of attachment because they have recently been sold to
another and become his, I agree that it would be for that seller to show why the Court
should not regard the possession by his agent as possession on his behalf. I do not think
the decision goes further than that. The applicant for attachment had shown prima facie
that the goods were owned by the seller, and that prima facie proof had to be disturbed.

I do not think that there is substance in the contention that the seller, seeking to set aside
the attachment, has the onus cast upon it. When the order to attach was granted the seller
had had no opportunity to controvert the facts alleged by the buyer, and the Court acted
on the allegations that the goods did not conform to the contract. When the seller has
opportunity to put counter allegations before the Court the matter must, I consider, be
judged
1948 (1) SA p1284

CLAYDEN J

as if those allegations had been before the Court originally. Merely by obtaining ex parte
an order in its favour the buyer cannot I think secure a more advantageous position than it
might otherwise have had.

In the present case it does not seem to me that the fact that the seller, before the goods
were shipped, was the owner assists the buyer. Facts are set out which would clearly
indicate a change in ownership, unless the goods did not conform to the contract, and
those facts destroy any inference of continuance of ownership. It also seems to me that a
person seeking to attach the property of another to found jurisdiction must show that the
property does belong to that other. Although in the present case, if attachment is allowed,
a judgment granted in favour of the buyer would be effective, for by its very success in
the action the buyer would prove that the goods belonged to the seller, that is not in my
view good grounds to allow the attachment. In such a case as this a preliminary action is
necessary to prove the right to attach. If a Court is to compel a peregrinus to contest an
action before it, under threat otherwise of being subjected to another action, it is in my
opinion exercising jurisdiction over that peregrinus without the attachment which
grounds the jurisdiction. Further, if the seller were to succeed in this action the effect of
the judgment would be that it had won a case before a Court which had no right to require
it to contest that case.

This case differs in my view from Davis' case because the seller cannot be inferred to be
still the owner and so required to show that it is not. In Ex parte Kahn (24 S.C. 558 at p.
566) the Court authorised the attachment to found jurisdiction of mules which were
claimed by both parties to the proposed action and were the subject matter of it; but the
case is the converse of the present case, for there the peregrinus claimed as his the
property sought to be attached, and if the mules were to be shown not to be his the Court
had jurisdiction by reason of the situation of them within its area.

Since therefore in my view the buyer fails to show on the contested facts that the goods
attached belong to the seller the seller is entitled to an order setting aside the attachment
and edictal citation. An order is granted in terms of prayers ( a), (b) , (c) and (d) of the
petition.

Applicants' Attorneys: Cliffe, Dekker & Todd; Respondent's Attorneys: Dumat, Pitts &
Blaine .