Scottish Court of Session Decisions

This was an action of declarator and damages at the instance of George Waldie, stabler in Montrose, against the trustees of the late Mr Gordon of Charleton and Kinnaber, and another, founded on alleged failure to implement a contract of lease.

In March 1866 the farm of Kinnaber was advertised to be let. The pursuer, on 27th June, sent in an offer for the farm in the following letter:—“I here offer for the farm of Mains of Kinnaber as advertised, say £140 per annum, payable in two instalments, the first half at Candlemas after shearing, and the other half of above sum at Lammas, the term of lease for nineteen years and crops, and £16 per annum for the wood, except the first year, which will be £8, and entry at Whitsunday 1867. The propritor, if wanted, to git possession of the wood for a rabbit warren, and the land on the east side at valuation, by giving one year's notice previous. The propritor gits the wood at £16, and no valuation, except what fencing may be at time of exchange of such, he (the propritor) will have to take at valuation. £170 to be spent in repairs of house and steading, and to leave them in fair and habitable condition. Should any damage buy rabbits to amount of £5 of valuation per annum, the propritor to pay for same, and the propritor to give say £10 per annum for the first five years to me, to be expended on town's manure.

(Signed) “ George Waldie.”

The sum of £140 was explained by the pursuer to be a clerical error for £240. On 8th July Mr G. M. Gordon, one of the defenders, and who acted for the other defenders in the management of the lands, transmitted the following letter to the pursuer:—“Sir,—I accept your offer of 27th ultimo on the following understanding, viz.:—That it is for a lease of the farm of Kinnaber, as at present occupied by Mr Milne, and as to the extent of which you must satisfy yourself, for nineteen years from Martinmas next, at an annual rent for the first five years of £230, and for the remainder of £240; and for a lease of the grazing in the Kinnaber wood, lying between the Kinnaber farm-steading and the dwelling-house of the gardener at Charleton, and on the east side of the high road which passes near that house, for eighteen and one-half years from Whitsunday next, at an annual rent of £16.” The letter contained several reservations and stipulations, inter alia,—“Proprietor not to put up fences or renew existing ones. Tenant to fence where necessary to prevent sheep or cattle from entering on lands not let to him. Proprietor to pay damage which may be caused by rabbits to the arable ground, if such damage in any year exceeds £5, according to valuation. But, to avoid vexatious questions, proprietor to have power to intimate to tenant that the latter may keep down rabbits on arable land, in which event latter to have no claim for damages. Lease to be under conditions similar to those in current lease to Mr Milne, of which a copy is herewith sent, except that wood rent should be payable at expiry of each six months for the preceding six. … That if tenant die, proprietor may declare lease at an end as at date of death or first term of Whitsunday and Martinmas thereafter, and that tenant insure stock. Lease to be under the conditions in favour of Mr Milne specified in his lease, and in favour of Mr Burgess as to access to a field through corner of Kinnaber wood, in terms of his lease.—I am,”&c.

Various correspondence passed between the parties. The pursuer alleged that he agreed to the conditions

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expressed in said letter of acceptance, in so far as they differed from or were additional to the terms of his offer. He farther alleged that, in dependence upon this letter, and on the transaction for the lease of said farm so concluded, he proceeded to make arrangements for entering upon the tenancy of the farm, and made various purchases of crop, and stocking, and manure. In the end the farm was let to another offerer. The pursuer pleaded (1) that “the defenders, or otherwise the defender George More Gordon, acting as aforesaid, having agreed to give the pursuer a lease of the farm in question, were bound, in fulfilment of the contract completed between them as aforesaid, to give the pursuer entry to the said farm in the manner and at the terms agreed on, and the defenders were not entitled to resile from said contract; and (2) that the defenders, having failed to give the pursuer possession of said farm in the manner and at the terms agreed on, and, in violation of their said contract with the pursuer, having given possession of said farm to another tenant, are liable to the pursuer in damages therefor.”

The defenders denied that there was any completed contract of lease, and pleaded, in particular, that the pursuer never having agreed to the conditions and stipulations insisted in on behalf of the defenders, but, on the contrary, having expressly refused so to agree, no contract of lease was ever completed; and they founded on the correspondence between the parties.

The pursuer proposed this issue:—

“It being admitted that the defender George More Gordon wrote the letter of date 8th July 1866, printed in the schedule hereto annexed, under the authority of the other defenders, and for their and his behoof:

Whether, under the letters printed in the schedule hereunto annexed, the defenders agreed to let to the pursuer the farm of Kinnaber, or Mains of Kinnaber, for the period of nineteen years from the term of Martinmas 1866; and whether the defenders have wrongfully failed to implement the said agreement, to the loss, injury, and damage of the pursuer?

Damages laid at £1000.”

The schedule contained the letters of 27th June and 8th July, given above.