In
opposing the application, the second respondent, who deposed to the
affidavit on behalf of both respondents, denied that the first
respondent had purchased the stationery from the plaintiff.
He
averred that the first respondent received an order from its client
for the stationery, and, it in turn, sourced the stationery from the
plaintiff. When its client ...
In
opposing the application, the second respondent, who deposed to the
affidavit on behalf of both respondents, denied that the first
respondent had purchased the stationery from the plaintiff.
He
averred that the first respondent received an order from its client
for the stationery, and, it in turn, sourced the stationery from the
plaintiff. When its client failed to pay for the stationery, mainly
chalk it would appear, the first respondent advised the plaintiff of
the fact. The plaintiff however refused to accept the chalk back. It
is further averred that an agreement was reached between the parties
in terms of which the first respondent would sell the chalk,
presumably to other of
its customers and remit periodic payments to the applicant. This, the
first respondent had been doing prior to the issuing of summons….,.
The
defendants had this to say in paragraph 4 of their joint affidavit:
“This
is disputed. The applicant did not supply any stationery to the first
respondent. The brief facts are that:-
4.1
The first respondent obtained an order for chalks from its customer
Kingstones which it, in turn, sourced from the applicant.
4.2
After receiving the chalks, Kingstones failed to pay for them and
returned the chalks; the applicant was advised and the Applicant
refused to accept the chalks back.
4.3
An agreement was reached with the applicant in terms of which the
respondent would sell the chalk and remit payments to the applicant
as and when any quantity was sold.
4.4
The 1st
respondent has been selling the chalks and remitting the proceeds of
the sold quantities to the applicant.
4.5
Indeed, the Applicant's Annexure “A” confirms this
arrangement.”…,.
It
is equally not clear whether the facts alleged by the defendants, as
detailed above, raise a contract of consignment.
I
do not think so.
I
do not read any allegation of a contract whereby the plaintiff, as
one trader, entrusted the chalk to the first defendant for the chalk
to be sold by the first defendant on behalf of the plaintiff.
The
opposing affidavit spells out, clearly in my view, that the
defendants obtained an order from their own customer for the chalk.
They then approached the plaintiff for the chalk. The plaintiff did
not seek the defendants out for them to sell its chalk on consignment
in which event the plaintiff would be obliged to accept back whatever
portion of the consignment remains unsold. Rather, the defendants
appear to me quite clear that it was only after their customer had
failed to pay for the chalk that they approached the plaintiff with
the news and sought to return the chalk to the plaintiff.
In
my view, the facts alleged by the defendant do not in themselves
constitute a defence. If it was the intention of the defendant to
deny liability for the purchase price of the chalk, and, instead to
allege that the customer who failed to pay for the chalk was actually
liable for the payment of the chalk directly to the plaintiff, on the
basis of either agency or consignment, such must have been alleged
clearly.
