Scottish Court of Session Decisions

Lord President—The pursuer in this case is the tenant and the defender is the landlord of the farm of Barstobrick, under a lease, dated in February 1869 for nineteen years from the term of Whitsunday in that year. There is nothing very remarkable in the lease except one clause, which gives rise to the contention of parties in this case. That clause is certainly very remarkable in its expression—[ Reads ut supra]. Now this is all that the lease contains with regard to additions and repairs on the houses on the farm. There is no specification of what these additions and repairs are to be, nor is it said at whose expense they are to be made. On both of these points parties differ. The landlord says there is no obligation laid on him by words of the lease to make any additions or repairs. The tenant says it is plainly intended that the obligation shall be laid on the landlord, and although these additions and repairs are not specified in the lease, that, he says, was all arranged previously, and he is in a position to prove by parole evidence that certain additions and repairs were consented to by the landlord.

To prove the tenor of preliminary negotiations as part of the agreement for lease is quite out of the question; that cannot be listened to for a moment. But I can still less admit the landlord's view of the case, which is this—that the necessary effect of the way in which this clause has been blundered is, that there are to be no additions to nor repairs upon the farm buildings unless the tenant pays for them. I can fancy a clause in a contract providing that something is to be done but failing in its operation because the thing is not specified, and the party by whom it is to be carried out is not specified—by reason of its uncertainty it may, as a legacy if uncertain lapses, be void altogether. But that is not the case here; not only are new buildings mentioned, but repairs upon old buildings are also mentioned. Now, prima facie the liability must be upon the landlord; he is at common law liable to put the farm buildings in tenantable condition; it does not require, therefore, to be said by whom the existing buildings are to be repaired. The term “additions” must, I think, be interpreted on the principle noscitur a sociis—whoever is to bear the burden of the one is to bear the burden of the other. I extract therefore from this clause sufficiently clearly this much, that there are to be additions and repairs made, and further that the expense is not intended to be thrown as a burden, in what I hold to be such an exceptional way, on the tenant.

The next question is, How is this obligation to be worked out? In a different contract from a contract of lease there might be considerable difficulty about that, but there is not much difficulty in finding in a contract of lease a just measure of that liability. It is an obligation incumbent on the landlord at common law, and it is generally expressed in leases that the landlord will give his tenant such buildings as will enable him to cultivate the farm in accordance with the terms and conditions of his lease; that is what he is bound by common law to do.

It is, as I have said, altogether out of the question to allow the tenant to prove that certain arrangements were made before entering on the lease; but he is probably in a condition to show that certain buildings are required to enable him to cultivate his farm in accordance with the terms and conditions of his lease.

I think this is not a case for a proof at large.

I think the amount of additions and repairs necessary for that end may be very satisfactorily ascertained by some man of skill, who will say what buildings are necessary to enable the tenant to cultivate his farm according to the terms and conditions of his lease.

Lords Deas, Mure, and Shand concurred.