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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Richardson v Scott [1835] CA 13_972 (24 June 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0972.html
Cite as: [1835] CA 13_972
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SCOTTISH_Shaw_Court_of_Session
Page: 972↓
v.
Subject_Lease — Bankruptcy — Trustee — Reparation. —
1. Circumstances in which a trustee on a bankrupt's estate held not liable for the rent of a distillery of which the bankrupt had a lease.—2. It having been a condition of the lease of a distillery that, in the event of the tenant's bankruptcy, the lease should be voided and possession ceded to the landlord; and the tenant having become bankrupt, and the trustee on his estate having opposed the landlord's resumption of possession; held, in an action at the landlord's instance, that averments in regard to loss sustained in consequence of this opposition were relevant to support a conclusion for damages against the trustee.
Archibald Richardson, the pursuer, let a distillery to Thomas Speirs, for seven years from Whitsunday, 1832, at the yearly rent of £450. It was a condition of the lease, that the tenant's bankruptcy should have the effect of rendering it ipso facto void, and, upon the occurrence of such an event, the tenant was to remove without warning. Speirs entered into possession, and in August, 1833, became bankrupt: his estate was sequestrated, and the defender, Scott, appointed trustee. In September, Richardson wrote a letter to Scott, demanding possession of the distillery, and intimating that in case it should be refused, he would hold Scott and the creditors liable for the current year's rent, and for all loss and damage which might be incurred in consequence thereof. A correspondence ensued, in which Scott denied Richardson's right to take possession, Speirs continuing to occupy the premises. Richardson, having attempted to enter via facti, was interrupted by Speirs; and, on the 28th October, the agent in the sequestration, in answer to a letter addressed by Richardson to the trustee, intimated that if Richardson attempted to resume possession, Speirs and his trustee would hold him liable in damages, and that steps would be taken for having him interdicted. On the 29th, Richardson presented a summary application to the Sheriff-substitute of Leith, to compel the tenant to remove in terms of the obligation in the lease. Answers were lodged for Speirs, with concurrence of his trustee, in which the bankrupt defended his continuing in the premises; and separate answers were lodged for the trustee, in which, though he did not expressly deny, he did not admit, the landlord's right to enter into possession. The Sheriff ordained Speirs and Scott to give the landlord immediate possession, which was accordingly done.
Shortly thereafter, Richardson raised an action against Scott, the trustee, concluding for payment of arrears of rent, and for damages incurred in consequence of his having been prevented from taking advantage of favourable opportunities of letting the premises.
Richardson maintained—
That the trustee having concurred with, and aided the bankrupt in retaining possession of the premises, thereby incurred a liability for the rent concluded for, and was bound also to make reparation for the loss and damage resulting from the tenant's contravention of his obligation to remove in the event of bankruptcy. 1
The trustee, on the other hand, contended—
That he had never possessed the premises, and that his concurrence as trustee to the bankrupt's defence against the landlord's action of removing, was not sufficient to subject him to the obligations of the tenant; and that he had done no act in consequence of which he could be liable in damages.
The Lord Ordinary pronounced the following interlocutor:—“Sustains the defences pleaded by the defender to the claim for rents or for arrears of rent, on the ground of his having adopted the lease subsequent to the bankruptcy of the tenant; but quoad ultra, finds the averments in the summons relevant to support the conclusion for damages, in respect of the extra-judicial and judicial opposition made by the defender to the pursuer's assumption of possession, under the clause in the contract libelled, and before further answer remits the cause to the jury roll.”
The trustee reclaimed.
The Court adhered.
Solicitors: Peter Couper, W.S.— John Murdoch, S.S.C.—Agents.
_________________ Footnote _________________
1 Ross v. Monteith, 5th February, 1786 (15290); Nisbett's Trustee, 10th December, 1802 (15268); Cuthill v. Jeffrey, 21st November, 1818 (F. C.)