Scottish Court of Session Decisions

Opinion, per Lord Kinloch, that the onus of getting the landlord's consent lay on the assignee.

Opposite opinion, per Lord Deas.

The pursuer is trustee on the sequestrated estate of Robert Westland, grocer, 1 South College Street, Aberdeen. Westland held the shop in College Street under a lease excluding subtenants and assignees. Lobley being desirous to occupy the shop, and to place his daughter in it, agreed to purchase the shop and fittings for the sum of £50. Westland granted the following letter and receipt to Lobley's daughter;—

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“Mis Martha Lobley, Aberbeen.

Aberdeen, 18 th August 1869.

Having received from you £50 as the value of shop furniture and fittings, including signboard, and the whole stock-in-trade presently in my shop, No. 1 South College Street, Aberdeen, I hereby undertake to give you instant possession, and to assign in your favour, or in favour of any person named by you, my lease of said shop, and the excise certificates presently in my name.—Yours, &c.

Robert Westland.”

Miss Martha Lobley

To Robert Westland. 1869.

Aug. 18.—To purchase-price of shop furniture and fittings, including signboard, and the whole stock-in-trade in my premises, No. 1 South College Street, Aberdeen, sold by me to you, with immediate entry, £50.

Aberdeen, 18 th August 1869. Received payment, Robert Westland.”

In reality, however, Lobley only p £10 to account of the £50. He also put stock into the shop, and paid part of the rent and taxes. The landlord, however, declined to recognise him as tenant of the shop, and he had to leave.

In these circumstances M'Dougall raised an action for payment of the balance of £40: and Lobley defended on the following grounds:—“(1) That the defender's daughter, with the consent and approbation of her father, who is her administrator-in-law, and who, in his own behalf, adopted and homologated said agreement, entered into the agreement to purchase, and actually did purchase, the stock and shop-fittings, the price of which is sued for, but that the pursuer's author has failed to implement his part of the bargain, in so far as he undertook to assign his lease of the premises in question, which he had no power to do without the landlord's consent, and which consent he has failed to obtain, and in reality has been refused by the landlord, unless on payment by the defender of a large increase of rent; (2) that the landlord not only refused said consent when applied to, but, declining in any way to recognise the defender as his tenant, he sequestrated the whole effects and fittings in the shop; in consequence of which, and of the pursuer's conduct in unwarrantably placing policemen and others at the door of the shop as a watch upon the defender, the defender's business was so interrupted as to compel him to shut up the shop, to his serious loss and injury: (3) that the defender is ready to pay to the pursuer the sum sued for, immediately on his implementing the terms of the bargain above referred to, and paying to the pursuer the damage sustained by him by the interruption to his business, and loss of his whole perishable goods within the shop in question, which can be ascertained by valuation of parties mutually chosen, which the defender is ready to agree to.”

Lobley raised a counter action for breach of con-tract, and damages sustained by Westland's conduct. A proof was led, and the actions conjoined. The Sheriff-Substitute ( Comrie Thomson) held, in point of law, that Westland failed to implement his agreement. He held Lobley entitled to credit for the £10 paid to account, for £24 for goods put into the shop, payment of rent, taxes, wages &c., and to £20 of damages; and Westland entitled to credit for £59, 15s. 6d., as Lobley had drawn £5, 15s. 6d. whilst in the shop, received from the next tenant £35 for fittings, £9, 4s. for transferred licenses, &c., and £10 for balance of stock; and he gave decree against Lobley for the balance, and found no expenses due in consequence of certain circumstances in the proof.

On appeal the Sheriff ( Jameson) altered in the following interlocutor:—“The Sheriff having heard parties' procurators on their respective appeals, and having thereafter considered the proof and whole process, recals the interlocutor appealed from, conjoins this action with the action presently depending at the instance of the defender in this action against Robert Westland and the pursuer, as trustee for behoof of Westland's creditors; And, in the conjoined actions, Finds it instructed that on 18th August 1869 Edwin Lobley bought from Westland, at the price of £50, the shop furniture, and fittings, and stock-in-trade in the premises, No. 1 South College Street, Aberdeen, with the view of carrying on the business there in name of his daughter: That next morning Westland gave Lobley the key of the shop, and also handed to him the certified copy lease thereof, No. 5 of process, which contained an express exclusion of subtenants and assignees; that afterwards Lobley paid to Westland £10 to account of the said price, and in the course of the same day the landlord declined to recognise Lobley as tenant, and soon afterwards instituted proceedings, in consequence of which Lobley found it necessary to leave the shop; Finds it proved that Westland represented to Lobley that there would be no difficulty in getting the landlord's consent to the change of tenant, but that Lobley made no enquiry to ascertain whether the landlord was willing to recognise him as tenant; that he took his risk of getting that consent, and was informed, on the very day he entered on possession, that the consent would not be given: In these circumstances, finds that Lobley's claim of damages cannot be maintained upon the grounds libelled in his summons; assoilzies Westland, and the trustee for his creditors, from the said claim of damages; and, in reference to the trustee's claim against Lobley for the balance of the aforesaid price, finds it instructed that Lobley received from the tenant who succeeded him in the shop £35 for the fittings, and also £3, 17s. and £5, 7s. for value of transferred licenses and for goods; Finds that Lobley is due the balance of the said price, viz., £40, but that, in the circumstances, he is entitled to retain therefrom the sum of £12 paid by him as proportion of rent, taxes, and wages, whereby the trust-estate was pro tanto relieved; Therefore decerns against the said Edwin Lobley for the sum of £28 sterling, to be paid to Duncan M'Dougall, as trustee for Westland's creditors; Finds Edwin Lobley liable in expenses of process, subject to considerable modification: allows an account to be given in, and when lodged, remits the same to the auditor to tax and report.

“ Note—The transaction which-has given rise to these two actions seems to have been entered into very loosely, and is not creditable to either Westland or Lobley. The agreement between them in reference to the shop furniture, fittings, and stock in the shop, is admitted and founded on by both parties in their respective actions, and has been given effect to as far as appears just. Lobley has failed to prove the basis of his action of damages, that Westland or his trustee failed wrongfully to transfer the lease. The reason that Lobley could not keep the shop was the want of the landlord's

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consent, which was refused the very day he entered. Lobley took no pains to ascertain the real state of matters, and, although Westland handed him the lease, he seems never to have looked at it. When the landlord declined to recognise him as tenant, he ought to have left the premises, and gone no further with a transaction which could not be carried out, and which was of an improper nature from the outset; for Westland was insolvent, and Lobley knew that he could not hold two licenses, and his daughter Martha, a girl of seventeen, was not a proper party to manage such a shop.

Lobley having disposed of shop-fittings and part of the goods to the succeeding tenant, is clearly liable in the balance of the price. At the same time, it is only according to equity that he should be allowed to retain the sums disbursed by him in payment of rent, taxes, and wages. This brings out nearly the same result as if there had been an accounting between the parties, which probably ought to have been combined with this action for payment. It appears that Lobley has paid £34 in connection with this transaction, but he has received in all £63, 19s. 6d., so that he is not a loser in being found liable in £28.”

Lobley appealed.

Scott for him.

Keir in answer.

The Court adhered. Westland was to assign the lease, but it was not assignable. This, therefore, only meant it was to be assigned if assignable, or if the consent of the landlord could be procured. The transaction just proceeded on the hope that the parties would get the lease assigned. Lobley had not been two days in the shop, and res could have easily been restored in integrum, Lord Kinloch observed that as the obligation was to assign the lease, not to give one, the onus of getting the necessary consent lay on the assignee. Lord Deas thought the reverse.