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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grieve v. Rutherford's Trustees [1871] ScotLR 9_60 (10 November 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0060.html
Cite as: [1871] ScotLR 9_60, [1871] SLR 9_60
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SCOTTISH_SLR_Court_of_Session
Page: 60↓
Court of Session Inner House Second Division.
v.
Facts:
Held that a tenant who had possessed a farm for ten years on a lease was barred by mora from reducing the lease on the ground that he was induced to enter upon it by false representations.
The pursuer Walter Grieve was tenant of the farms of Easter Glensherrup and Whitehill, under a formal agreement executed by him and the late Miss Rutherford of Glendevon on 19th November 1859. The duration of this lease was for fifteen years. The farms were not described in the lease as consisting of any specific number of acres, and were let to the pursuer for a slump rent of £743. The pursuer entered on possession of the farms at Whitsunday 1860, and took over the sheep which were on the farms at a valuation. After having been in possession of the farms for ten years, he raised the present action to reduce the lease, on the ground of essential error, induced by an alleged false representation made by Miss Rutherford in the advertisement of the farms—“that the farms are capable of keeping about 2000 sheep, besides cattle.” He averred that he relied on the accuracy of the advertisement, and that the rent he had agreed to pay exceeded the true value by £200 a-year. The summons concluded for reduction of the agreement, and for repayment by the defenders, who are the testamentary trustees of the late Miss Rutherford, of the sum of £7801, 10s., being the whole rents paid by him down to Martinmas 1870, with interest, but under deduction of such sum as might be ascertained to be a reasonable equivalent for the possession of the farms, or otherwise for £4000 in name of damages.
The Lord Ordinary dismissed the action, and added the following note to his interlocutor, which explains the facts of the case and the contentions of the parties:—
“ Note.—The pursuer is tenant of the farms of Easter Glensherrup and Whitehill, under a formal agreement of let executed by him and the late Miss Rutherford, the proprietrix, on 19th November 1859. The duration of the lease is for fifteen years from and after Whitsunday 1860. The farms are not set forth in the agreement of let as consisting of any specific number of acres, but they are let as a whole to the pursuer for the slump rent of £743, payable by equal portions at Whitsunday and Martinmas. It was stipulated by the agreement of let that the pursuer should take over the stock of sheep on the farms, which were then in the possession of the proprietrix, at a valuation to be fixed by arbiters. The pursuer avers that he entered into possession of the farms at Whitsunday 1860; that the sheep stock, which consisted of 1469 sheep, was then delivered over to him; that it was valued, and that the price was paid in terms of the agreement of let.
The pursuer, after having been in possession of the farms for more than ten and a-half years, has raised the present action on' the ground of essential error induced by a false representation made by Miss Rutherford in the advertisement—“that the farms are capable of keeping about 2000 sheep, besides cattle.” He avers that in taking the farms, and in agreeing to pay £743 of rent for them, he relied entirely upon the accuracy of this representation in the advertisement—that the farms were not capable of keeping more than 1400 sheep, without any cattle—and that the rent which he has agreed to pay exceeds the true value of the farms by at least £200 a-year. In the summons the pursuer concludes for reduction of the agreement of let, and for repayment to him by the defenders, who are the testamentary trustees of Miss Rutherford, of the sum of £ 7801, 10s., being the whole rents paid by him down to and including the half-year's rent due at Martinmas 1870, with interest thereon, but under deduction of such sum as may be ascertained to be a reasonable equivalent for the possession of the farms, or otherwise for £4000 in name of damages.
The Lord Ordinary is of opinion that the pursuer's statements are not relevant or sufficient in law to support the conclusions of his summons, and that on his own statements he is barred by mora and acquiescence from insisting in the action. The pursuer avers that the number of sheep delivered to him at Whitsunday 1860, when he entered upon the farms, was only 1469. He further avers (cond. 7) that on finding that there was not at least 2000 sheep upon the farms he became suspicious of the accuracy of the statement in the advertisement regarding the capabilities of the farms, but nevertheless he was desirous, by a short trial of the farms, fairly to test their capabilities; that after so testing them he ascertained that the said statement was incorrect; that the farms were not capable of keeping more than 1400 sheep, without any cattle at all; and that he communicated this to Miss Rutherford. But he does not aver that he took any steps to obtain relief. Neither does he aver that Miss Rutherford recognised in any way his claim for relief, and, as he admits, he continued to pay the rent to her down to the date of her death in 1869. No doubt the pursuer avers that, subsequently to his communication to Miss Rutherford, he made the like communication to her niece Mrs Aytoun, who, he alleges, resided with her and managed her affairs, in consequence of her age and infirmities, she being upwards of ninety years of age, and that Mrs Aytoun did not deny that the farms were not capable of keeping 2000 sheep, and admitted that the rent was too high, but urged the pursuer to continue to pay the rent during Miss Rutherford's life, ‘and led the pursuer to understand that upon Miss Rutherford's death the matter of rent would be adjusted with the pursuer.’ He also states that, misled by these representations, he continued to pay the rent during Miss Rutherford's life. But he does not aver that Mrs Aytoun had any authority to act for Miss Rutherford in regard to the farms or the rents, and his statements in regard to what Mrs Aytoun led the pursuer to understand are much too loose and vague to account for his taking no steps to obtain relief, for his continuing in the occupation of the farms, and for his payment of rent to Miss Rutherford for nine years after his entry. This occupation of the farms continued, and these payments of rent were made, according to the pursuer's own statement, for years after he had tested the farms, and come to the conclusion that they were not capable of keeping more that 1400 sheep, without any cattle. This constituted acquiescence on the part of the pursuer in the lease, and such acquiescence, extending as it does over such a long period of the lease, is sufficient, the Lord Ordinary considers, to exclude the present action.
But further, the representation in the advertisement,
Page: 61↓
The pursuer reclaimed.
Fraser and Asher for him.
Shand and Keir for respondents.
The Court adhered on the grounds stated by the Lord Ordinary in his note.
Solicitors: Agents for Pursuer— Scott, Moncrieff, & Dalgetty, W.S.
Agents for Defenders— Dundas & Wilson, C.S.