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PURDON v MULLER 1961 (2) SA 211 (A)
Citation 1961 (2) SA 211 (A)
Court Appellate Division
Judge Steyn CJ, Van Blerk JA, Ogilvie Thompson JA, Botha AJA and Van Winsen AJA
Heard November 30, 1960; December 1, 1960
Judgment February 13, 1961
Annotations
Flynote : Sleutelwoorde
Partnership - Essentials of - Nature of - Partner cannot invoke forfeiture clause unless
contract honoured by him - Practice - Pleadings - Particulars - When to be requested -
Series of interrogatories - When not permissible.
Headnote : Kopnota
Where Pothier's four requirements for a partnership are shown to be present the Court
will find a partnership established unless such a conclusion is negatived by a contrary
intention disclosed on a correct construction of the agreement between the parties.
Partnership is a contract uberrima fides and that connotes that a partner wishing to
invoke against his co-partner the stringent provisions of a summary cancellation and
forfeiture clause contained in the partnership agreement must at least himself be
honouring the terms of that agreement. The equitable principles of our law do not permit
a partner, who is himself repudiating his partnership obligations towards his partner, to
enforce against that co-partner a forfeiture clause such as one which provides that
failure or
1961 (2) SA p212
neglect to perform a duty will render him liable to summary cancellation and resultant
forfeiture.
While it is fundamental that a party should be adequately apprised of the case he has to
meet, the ingenious inquisitor should not be permitted, under the guise of a request for
further particulars of a pleading, in effect to submit a series of interrogatories to the
opposite party.
Where a trial Court had found that a partnership had existed between the appellant and
the respondent and it had ordered the appellant to furnish accounts which were in his
possession, and after debate thereof to pay the respondent his half-share of the profits,
in an appeal,
Held, that the order had been properly made.
The decision in the Eastern Cape Division in Purdon v Muller, 1960 (2) S.A. 785,
confirmed.
Case Information
Appeal from a decision in the Eastern Cape Division (DE VILLIERS, J.P.). The facts
appear from the judgment of OGILVIE THOMPSON, J.A.
W. G. Trollip, Q.C. (with him D. Reichman), for the appellant: The contract was one of
employment and not of partnership. The contract contains provisions opposed to the
concept of a partnership. Further, certain provisions one would have expected to find
had this been a partnership agreement, are absent. They are an agreement to share
losses, any provisions from which the right of respondent to represent appellant is to be
inferred, a right vested in respondent to terminate, if appellant is in breach; cf. Walker v

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Hirsch, 27 Ch. at pp. 463 - 5, 469, 472 - 3; Feinberg v Kaplan and Kaplan, 1913 W.L.D.
48; Halsbury (Simonds' ed.), vol. 28 para. 938; Ross v Parkyns, 20 Eq. at p. 336;
Halsbury ubi cit. para. 935; Wulfsohn v Taylor, 1928 T.P.D. at p. 103; Hart v Pickles,
1909 T.H. 250; Venter v Livini, 1950 (1) SA at p. 527; de Villiers v Smith, 1930 CPD at p.
222; Blismas v Dardigan, 1951 (1) SA at pp. 146, 147; Truter v Hencke, 1923 CPD 43;
Els v Bruce, 1923 E.D.L. at pp. 386 - 7. In any event, if the contract was not clearly one
of employment, it is capable of being so construed and it is therefore at least ambiguous.
The Court may therefore look to the surrounding circumstances; see Delmas Milling Co.,
Ltd v du Plessis, 1955 (3) SA 447. It may also look to the conduct of the parties after the
agreement was entered into; see Shill v Milner, 1937 AD 110; Breed and Another v van
den Berg and Others, 1932 AD 282. The imposition by respondent of conditions
constituted a refusal to plant; see Odendaal v du Plessis, 1918 AD at pp. 475, 478. As to
the claim for an order declaratory of a partnership, for the reasons advanced, the
relationship between the parties was not one of partnership. Alternatively, if the
agreement was lawfully cancelled and respondent forfeited all his rights, the dispute is
academic and no order should therefore be granted; see Ex parte van Schalkwyk, N.O.,
1952 (2) SA at p. 411; Ex parte Morris, 1954 (3) SA at pp. 153 - 4. The Court a quo
erred in pronouncing dicta as to what factors should be taken into account in valuing the
amount of compensation under clause 11. This was not an issue on the pleadings and is
one that when it does arise would have to be determined by arbitration; see Whitfield v
Phillips, 1957 (3) SA at pp. 345 - 6. Appellant would only be obliged to render an
account for the profits in question if the agreement expressly or impliedly compelled him
to do so; see Auerbach v Sunbeam Neon Light Co., 1938 CPD at pp. 476, 477; Maitland
Cattle Dealers (Pty.), Ltd v Lyons, 1943 W.L.D.
1961 (2) SA p213
at p. 19; Zabow v Mauerberger, Ltd., 1936 CPD at p. 207; Vervall v Naested, 1924 S.R.
109. Express provision is made in clause 3 (c) that respondent and not appellant is to
keep the books of account and all such vouchers, accounts and records as are
necessary. The principle expressum facit cessare tacitum applies; see Barnabas Plein &
Co v Sol Jacobson, 1928 AD at p. 28; Wessels Law of Contract in South Africa (2nd ed.,
para. 1950); du Plessis v Nel, 1952 (1) SA at pp. 537, 539. As the person managing the
farming activities (whether as partner or not), it was respondent's duty under clause 3 (c)
and/or Common Law to prepare and render accounts to appellant, not vice versa; see
Voet, 17.2.11 (Gane's translation vol. 3); Schorer, n. 406; Maasdorp, p. 621; Tshabalala
v Tshabalala, 1921 AD at pp. 317 - 8, 327; Silver v Silver, 1934 NPD 396.
T. M. Mullins, for the respondent: If the land in question was governed by the terms of
the agreement, the question whether there was a breach of the agreement or not
depends on the ipsissima verba of the agreement and other principles governing the
relations of partners or parties to a contract in the nature of a partnership; see Lindley
Partnership (11th ed., pp. 494 - 5); Bowen v Daverin, 1914 AD at pp. 637 - 8. As to the
principles determining the existence of a partnership, see Bamford Partnership, pp. 14 -
5; Rhodesian Railways and Others v Commissioner of Taxes, 1925 AD at p. 465; V v de
Wet, N.O., 1953 (1) SA at p. 615; Davison v Auret, 22 S.C. at pp. 14 - 15, 16 - 17, 27. As
to appellant's argument that the fact that respondent received a monthly wage from 1st
July, 1952, to 30th June, 1954, negatived the existence of a partnership, this was
correctly rejected by the Judge a quo on the principle of Ellis v Joseph Ellis & Co., 1906
(1) K.B. 324. Appellant's argument based on the silence of the agreement as to losses,
was also properly rejected; see Dickinson & Brown v Fisher's Executors, 1916 AD at p.
394; Voet, 17.2.8; Bamford, op. cit. p. 13. This is not a case where, in so far as the terms
of their agreement are concerned, one party was obviously subordinate to the other; cf.

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PURDON v MULLER 1961 (2) SA 211 (A) Citation Court Judge Heard Judgment 1961 (2) SA 211 (A) Appellate Division Steyn CJ, Van Blerk JA, Ogilvie Thompson JA, Botha AJA and Van Winsen AJA November 30, 1960; December 1, 1960 February 13, 1961 Annotations Flynote : Sleutelwoorde Partnership - Essentials of - Nature of - Partner cannot invoke forfeiture clause unless contract honoured by him - Practice - Pleadings - Particulars - When to be requested Series of interrogatories - When not permissible. Headnote : Kopnota Where Pothier's four requirements for a partnership are shown to be present the Court will find a partnership established unless such a conclusion is negatived by a contrary intention disclosed on a correct construction of the agreement between the parties. Partnership is a contract uberrima fides and that connotes that a partner wishing to invoke against his co-partner the stringent provisions of a summary cancellation and forfeiture clause contained in the partnership agreement must at least himself be honouring the terms of that agreement. The equitable principles of our law do not permit a partner, who is himself repudiating his partnership obligations towards his partner, to enforce against that co-partner a forfeiture clause such as one which provides that failure or 1961 (2) SA p212 neglect to perform a duty will render him liable to summary cancellation and resultant forfeiture. While it is fundamental that a party should be adequately apprised of the cas ...
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