BLOOM_Appellant_v_THE_AMERICAN_SWISS_WATCH_COMPANY_Respondents_1915_AD_100.pdf

BLOOM_Appellant_v_THE_AMERICAN_SWISS_WATCH_COMPANY_Respondents_1915_AD_100.pdf

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Unformatted text preview: Source: South African Appellate Division Reports (1910 to date)/SA APPELLATE REPORTS – CHRONOLOGICAL LISTING 1910 to /1915/January ­ March, 1915/BLOOM Appellant v THE AMERICAN SWISS WATCH COMPANY Respondents 1915 AD 100 URL: BLOOM Appellant v THE AMERICAN SWISS WATCH COMPANY Respondents 1915 AD 100 1915 AD p100 Citation 1915 AD 100 Court Appellate Division Judge Innes CJ, Solomon JA and De Villiers AJA Heard February 2, 1915 Judgment February 3, 1915 Flynote : Sleutelwoorde Contract. ­ Reward. ­ Animus contrahendi. ­ Contractual privity. Headnote : Kopnota After certain property had been stolen a reward was offered to any person giving information which would lead to the of the thieves and the recovery of the property. The appellant and others claimed this reward for information given by them. Held, on appeal, that the information given by appellant led to the arrest of the thieves and the recovery of the bulk of the stolen property. Held further, that the information had been given by appellant before he had any knowledge of respondents' offer of a reward, and that, in consequence, he was not entitled to recover, as the right to recover was dependent on contractual privity. The decision of the Cape Provincial Division in Sephton and Others v The American Swiss Watch Company (1913 CPD p. 1004) affirmed. Case Information Appeal from the decision of the Cape Provincial Division (HOPLEY, J.). On the 13th of March, 1913, a robbery took place at the premises of the defendant company, and jewellery to the value of £5,000 was forcibly taken. In the Press of the following day a reward was offered by defendants of £500 for information to be given to the C.I.D by any person which would lead to the arrest of the thieves and the recovery of the stolen property. If the information led only to the recovery of a portion of the property stolen, the reward would be paid proportionately. Information reached the police from various sources; the thieves were arrested, and the bulk of the stolen property recovered. Thereupon legal proceedings were initiated by various persons claiming the reward, including the plaintiff (now appellant). The action's were heard together before HOPLEY, J who found as a fact that it was the information given by the plaintiff which led to the arrest of the thieves and the recovery of the stolen property. But he also found as a fact that the plaintiff, when he gave the information to the police, was unaware of the fact that a reward had been offered, and on that ground gave judgment for defendants. From this judgment the plaintiff now appealed. The Appellant in person: Knowledge of the offer is immaterial. See Gibbons v Proctor (1892, 64 L.T. 594). See Story on 1915 AD p101 Contracts (sec. 380 (a) ). In the case of Williams v Cawardine (4 B. and A. 621) there was nothing to show that there was knowledge of the offer of the reward. The American law lays down that knowledge is unnecessary before the rendering of the service. See Russell v Stewart (American Reports, vol. 44, p. 170); Eagle v Smith (Houst Reports Adamire, p. 293); Dawkins v Sappington (26 Indiana, p. 199); Wentworth v Day (3 Met. Massachusetts Reports, p. 352). It was laid down that if before the reward is withdrawn the services are performed the person performing them is entitled to the reward. See The Auditor v Bullard (9 Bush. 572 S.C., and 16 Americ. Reports, p. 728). In this case the offer had not even appeared in the papers. Fitch v Snedaker (1868, 38 N., p. 248) is not in point. In that case the reward was offered for the apprehension and conviction of the criminal, but the apprehension had not been effected by Fitch. H. F. Blaine, K.C. (with him P. V Fischer), for respondents;: The appellant failed to prove the contract set up by reason of the fact that he did not know of the reward offered at the time he gave the information. Gibbons v Proctor (supra) has been subjected to criticism. See Pollock on Contracts (7th ed., pp. 21 and 22); Anson on Contracts (11th ed., p. 23 in notes); Halsbury's Laws of England (Vol. VII., p. 349). The soundness of the decision is open to question. In America there are conflicting decisions. In William v Cawardine (supra) it was held that the motive of the plaintiff in claiming the reward was immaterial. See Hawkins' note to his judgment in Carlill v Carbolic Smoke Ball Co. (1892, 2 Q.B.D., p. 489, N. 2); Story on Contracts (Vol. I., sec. 493). The Roman­Dutch law is the same as the English law. There must be a consensus and reciprocal intention on the part of the offeror and offeree. Without knowledge of the offer there cannot be an intention on the part of the offeree to accept it. See Pothier on Obligations (Evans' Translation of Vol. II., p. 37). There must be a concurrence of intention between the parties. The reward only remained open until the information had been given. See Goudsmit's Pandecten Systeem (Vol. II., p. 82). [DE VILLIERS, J.P.: If this is an agreement the authorities are elementary. But has the doctrine of pollicitation been extended so as to cover this case?] The declaration is based on contract. The terms of the offer of the reward necessitates the view that the theory of an out must be applied. 1915 AD p102 As to the question of facts depending on the credibility of witnesses on appeal, see Pieters & Co. v Salmon (1911 AD 121). Appellant, in reply: The agreement was not complete until the thieves had been convicted. Cur. adv. vult. Postea (on February 3). © 2018 Juta and Company (Pty) Ltd. Judgment Downloaded : Wed Jan 16 2019 14:56:27 GMT+0200 (South Africa Standard Time) Appellant, in reply: The agreement was not complete until the thieves had been convicted. Cur. adv. vult. Postea (on February 3). Judgment INNES, C.J.: On 19th March, 1913, a robbery was perpetrated at the Cape Town premises of the defendant company and jewellery to the value of £5,000 was forcibly removed. In the press of the following day appeared a notice in these terms: "Mr. J. Hirschsohn of the American Swim Watch Company called at the Argus office this afternoon and stated that be was prepared to pay to any person a reward of £500 for information to be given to the C.I.D. which would lead to the arrest of the thieves and the recovery of the diamonds, jewellery, etc., stolen from his premises on the 19th instant. If the information leads to the recovery of a portion only of the property, the reward will be paid proportionately." Information reached the police authorities from various sources; the culprits were arrested, and the bulk of the property was recovered. Thereupon proceedings were commenced by different persons claiming the reward. The actions were heard together, and the trial Judge came to the conclusion that it was the information furnished by the plaintiff which led in due course to the arrest of the thieves and the recovery of the goods. But he also found as a fact that the plaintiff when he communicated his information to the police was unaware that a reward had been offered; and upon that ground he entered judgment for the defendant. The matter is now before us on appeal from that decision. Now the plaintiff's case, as presented in the Court below and to us, depends upon the establishment of a contractual relationship between himself and the defendant. And it is necessary, therefore, to enquire what was the legal effect of the published offer, and under what circumstances its acceptance would constitute a contract between the parties. The offer was to all the world to pay £500 to any person giving to the C.I.D information which should lead to the arrest of the criminals and the recovery of the property. In order that it might ripen into a contract it was necessary that the offer should be accepted. Under ordinary circumstances the direct communication of the acceptance to the 1915 AD p103 INNES, C.J. person making the offer is essential to the constitution of a contractual vinculum. But it is always open to the offeror to indicate any special channel of communication, or any special mods in which acceptance may be manifested. And that is what the defendant company in effect did. It promised to pay any who gave information of a certain kind to the C.I.D. In other words, it announced that the offer might be by communicating the information to the proper quarter. But this indication of a special mode of acceptance did not do away with the necessity for acceptance itself. In order to establish a legal tie between the parties, the information would have to be given, in consequence of the advertisement, by a person acting on the faith of the offer. Otherwise there could be no contractual privity; the animus contrahendi on the part of the person giving the information would be wanting; and he could not be the acceptor of the offer because he did not under the circumstances intend to accept anything. This position results from an application of the fundamental principles of our law; and the same conclusion is reached by English Courts (see Carlill v Carbolic Company (1 Q.B.D., 1893, p. 256). Reliance was placed by the plaintiff on Gibbons v Proctor (64 L.T., p. 594). There information was despatched to the person authorised to receive it on the morning of the day on which handbills offering a reward were published, but before publication had been effected. The information was transmitted through a certain channel and reached its destination after the publication of the handbills. It was held that the reward could be claimed. The reasons given are short and do not deal with the legal difficulty now under consideration. The decision has been subject to care criticism; and with great respect for the Divisional Court I do not think that we should be justified in accepting it as an authority for the proposition that a man may in law be considered to accept an offer of the existence of which he is ignorant, and the be regarded as establishing 9, binding contract between himself and the person making the offer. It follows from what has been said that if the trial Judge was right in holding that the plaintiff when he communicated with the C.I.D had no knowledge of the offer of a reward, then no legal obligation was created between himself and the defendant. The plaintiff deposed that he had heard of the reward, and called several witnesses to corroborate him. But the learned Judge was 1915 AD p104 INNES, C.J. not satisfied as to their credibility, and in view of the fact that the plaintiff in a letter addressed to the Attorney­General distinctly stated that he knew of no reward when he went to the C.I.D., he found against him on that issue. Arguments were addressed to us by the plaintiff at some length on this part of the case; ingenious explanations were suggested as to the meaning of the statements in the letter; and it was contended that the evidence adduced by the plaintiff should not have been rejected. But the words of the letter are clear and unambiguous and admits of only one construction; and there is no Justification here for an interference with the conclusion of fact reached by the lower Court depending upon the credibility of witnesses whom we have not seen. It was argued that even if there had been no acceptance when the information was communicated to the police, the subsequent claiming of the reward might be regarded as the acceptance of an offer then known and still open. But by that time the plaintiff had already parted with his information without meaning to claim payment for it; the police were in possession of the facts and the offer could not be regarded as still open for acceptance. The result is that the judgment below must stand. In some respects the case is a hard one for the plaintiff, who parted with information from a sense of public duty for which, if he had waited a little longer, he might have been handsomely rewarded. On the other hand it is only right to say that the defendant company's position is not so fortunate as might appear at first sight. It could not decide which of the various complainants was entitled to be paid; and it offered to deposit the reward for distribution by the Court. This arrangement was not agreed to and the company was, therefore, compelled to incur heavy legal expenditure in connection with the various actions brought against it. The result may well turn out to be not very different, from the company's point of view, than if it had paid the reward in full in the first instance. But however that may be, the law is clear; and the appeal must be dismissed with costs. Judgment SOLOMON, J.A.: I agree that this appeal should be dismissed. It is true that the plaintiff did all that was necessary to be done in order to entitle him to the reward which was offered by the defendants. The advertisement which was published in the local papers by the defendant Hirachsohn stated that "he was prepared 1915 AD p105 SOLOMON, J.A. to pay to any person a reward of £500 for information to be given to the C.I.D which would lead to the arrest of the thieves and the recovery of the diamond jewellery, etc.," and the learned Judge has found as a fact that the plaintiff gave certain information to the C.I.D., that this information led to the arrest of the thieves and to the recovery, at any rate, of the greater part of the jewellery. Why then should the plaintiff not be able to claim the reward? The simple answer is because there was no vinculum juris between him and the defendants, and, therefore, no legal obligation on the latter to pay the sum promised in the advertisement. The case for the plaintiff is really based upon contract, and in my opinion there is no other legal ground upon which it could possibly be put. But how was this alleged contract constituted? The defendant Hirschohn by his advertisement made an offer to the public at large offering a reward for certain information to be given to the C.I.D., and if any member of the public had accepted the offer by giving the necessary information, a binding contract would have been made between him and the defendants. As a rule indeed when an offer is made the acceptance of such offer must be communicated to the person making it by the person accepting it in order to give rise to a contract. But where as in this case the offeror has himself indicated the manner in which the acceptance is to be made, it becomes unnecessary to do anything more in the way of communication with the offeror. In the advertisement the public are asked to give the information to the C.I.D., and if the plaintiff had seen or heard of the advertisement and had in consequence communicated to the C.I.D such information as led to the arrest of the thieves and the recovery of the jewellery, there would have been a © 2018 Juta and Company (Pty) Ltd. Downloaded : Wed Jan 16 2019 14:56:27 GMT+0200 (South Africa Standard Time) contract between him and the defendants under which the latter would have been bound to pay him the promised reward. But until the plaintiff the defendants. As a rule indeed when an offer is made the acceptance of such offer must be communicated to the person making it by the person accepting it in order to give rise to a contract. But where as in this case the offeror has himself indicated the manner in which the acceptance is to be made, it becomes unnecessary to do anything more in the way of communication with the offeror. In the advertisement the public are asked to give the information to the C.I.D., and if the plaintiff had seen or heard of the advertisement and had in consequence communicated to the C.I.D such information as led to the arrest of the thieves and the recovery of the jewellery, there would have been a contract between him and the defendants under which the latter would have been bound to pay him the promised reward. But until the plaintiff knew of the offer it seems clear that he could not accept it, and until he accepted it there could be no contract, for a contract requires that there should be a consensus of two minds, and if the one did not know what the other was proposing, the two minds never came together. Now the learned Judge in the Court below found as a fact that when the plaintiff gave his information to the C.I.D he had no knowledge of the, offer of a reward which had been made by the defendants, and that is a finding which in my opinion it is 1915 AD p106 SOLOMON, J.A. impossible for us to question. And if that be so it follows that the giving of the information was not and was never intended to be an acceptance of the offer made by the defendants. What really happened was that the plaintiff gave away his information to the C.I.D gratuitously. Whether that was done solely in the interests of justice, or because he expected that he would receive some reward, is immaterial, for in either case he has no legal claim upon the defendants. Had he known of the advertisement he would doubtless have given the information with the object of earning the reward, and in that event he could legally have claimed it, but unfortunately for him that is not the present case. It is true that there is an English case of Gibbons v Proctor (64 L.T. 594), in which it was hold that the informer was entitled to the reward even though he was ignorant at the time when he gave his information of the offer of a reward. But the judgment in that case gives no reasons for the conclusions arrived at, and both Pollock and Anson in their treatises on contracts state that it is impossible to accept that decision as an authority. In America also there appear to have been conflicting decisions on this point. In the case of The Auditor v Ballard (16 Am. R. 728) it was held in the Kentucky Court of Appeal that the ignorance of the informer that a reward had been offered was immaterial, but the reasons for the decision are by no means convincing. In the New York Courts, however, the contrary has been decided in more than one case, and in Howland v Louends (51 New York 604) it was said by one judge "where a contract is proposed to all the world in the form of a proposition, any party may assent to it, and it is binding, but he cannot assent without knowledge of the proposition." That seems to me to put the whole case in a nutshell, and it is in my opinion the correct legal view upon this subject. I come to the conclusion, therefore, that there was no contract between plaintiff and defendants, under which the latter were legally bound to pay to the former the promised reward. And if there was no contract I fail to see upon what other legal ground the reward can be claimed. I therefore agree that the appeal fails. Judgment DE VILLIERS, A.J.A: According to the notice in the "Argus," the respondents promised to pay F, reward of £500 to any person who gave information to the Criminal Investigation Department 1915 AD p107 DE VILLIERS, A.J.A. leading to the arrest of the thieves and the recovery of the diamonds and jewellery. It might be thought that any person who satisfied this condition would, as a matter of course, be entitled to the reward. And as according to the finding of HOPLEY, J., the appellant was such person, that he would have received the reward. Under the German Civil Code this would certainly be the case. Section 667 provides that a person who by public notice announces a reward for the performance of an act, e.g. for the production of a result, is bound to pay the reward to any person who has performed the act, even if he did not act with a view to the reward. It appears just that the person who gave the information contemplated should obtain the reward. But in the absence of legislation I am afraid this is not our law. The great weight of authority is in favour of the view that the transaction is; to be brought under the category of contract. Now it is true such a notice constitutes an offer to pay the amount of the award to the person who has performed the act, but on elementary pri...
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