Scottish Court of Session Decisions

This was an action of removing at the instance of William Lowson of Balthayock, in the county of Perth, against Mrs Ross, tenant of certain subjects belonging to the pursuer. The subjects were (1) Westwood Cottage, with the small flower-garden thereto belonging, which the defender held on a twenty-one years' lease expiring at Whitsunday 1881. (2) An orchard held originally on a seven years' lease which expired at Whitsunday 1865, but had since been renewed by tacit relocation. This orchard adjoined Westwood, and was used as a kitchen-garden, and contained a house in which the gardener resided. (3) A cottage of the annual value of £4, 10s., known as Hay's Cottage, and situated near, but not actually adjoining, Westwood. Along with this cottage Mrs Ross held, in virtue of an agreement with Mr Lowson, a right of pasture in a plantation near to Hay's Cottage. Hay's Cottage was held under a written lease expiring at Martinmas 1880. It had been used by Mrs Ross as her coachman's house, there being no accommodation at the stables at Westwood for a coachman, and a part of it had also been used as a laundry and washing-house. The whole subjects had been occupied together as a country residence by Mrs Ross. On 2d January 1880 Mrs Ross wrote to Mr Lowson on the subject of her tenancy as follows—… “I learn from Westwood that a great many trees have been blown down, and also the fence which we put up round the stable-yard, and that round the garden. This makes me somewhat hasten writing to you on the subject of Westwood, tho’ in any case I should have done so soon, as the present lease expires at Whitsunday 1881, and it may be convenient for both parties to know whether it is to be renewed or not. I should certainly wish and hope to do so, if we can arrange terms, but in any new lease it would be indispensable to have other stables, and to have the cottage thatch renewed. Any smaller matters I need not enter on until I hear what are your views about the place. I do not conceal from you how attached we all are to the little spot, and what special associations it has for us, but I believe your knowledge of this will make you none the less inclined to deal favourably by us.” It was not disputed by either party to this case that the “cottage thatch” referred to in this letter meant the thatch of Westwood. On 6th January Mr Lowson made this answer—. . “I was aware the lease of the cottage expired in May 1881. I would gladly have negotiated at once for a renewal of your lease, for with no family could we have had more pleasant intercourse than with your good selves. But I may mention in confidence, a near relative meanwhile proposes, if all's well, to take the cottage, and I could not let it past him. Certain circumstances may by next year interfere with his present views. Should anything do so, and you have not in the interim fixed with any other country place, we would, I have little doubt, be able to arrange a short lease to our mutual satisfaction.” … Mrs Ross replied to this letter on 13th January, saying—“When I last wrote to you I never for a moment imagined there was anything but a question of terms between us, so much was I under the impression there was to be no disturbance in our tenancy of Westwood.” She then went on to refer to her great aversion to leave the place. Mr Lowson on 17th January made this reply—“When I last wrote you, altho' I felt if you had to leave Westwood it might be a disappointment, I confess I was unprepared for the strong expression of feeling manifested in your last kind note. In your previous communication there were certain things which you stipulated for as ‘indispensable’ before any new lease could be entered into. These were perfectly reasonable as betwixt landlord and tenant. At the same time, it did not enter into my mind then that you were dealing with the renewal other than very much as a matter of business. It is right to explain all this, for I would be very sorry if you imagined other than very strong reasons, altogether apart from an ordinary tenancy, induced me to write confidentially to you in the way I did. I fear I can say nothing more definite than in my last as to the future of Westwood, and I would only mislead if I induced you to believe that anything conclusive for months could be communicated.” On 10th June he wrote this letter—“Referring to our correspondence in the end of last year regarding the renewal of a lease of Westwood Cottage and grounds, I am now in a position to offer to extend the existing lease for one year—say to Whitsunday 1882—the tenure to be in every respect the same as previously. I regret I cannot propose at the present time any further extension of the existing arrangement, for reasons I need not trouble you with, but you may rest assured, as explained in former letters, I shall not lightly sever our present relations, which have been to me always of such a pleasant character.” On 12th June Mrs Ross wrote saying—“I gladly accept your offer that my present lease should be prolonged for a year from Whitsunday next.” In this letter she expressed a desire to purchase Westwood if at any time Mr Lowson should be disposed to sell it. Mr Lowson replied saying” I am glad you are fixed at Westwood to 1882.” On 23d August he wrote again announcing the approaching marriage of his son, and stating his intention to hand over Westwood for his son's residence. In this letter he said—“Knowing well that you would be anxious to hear in early summer whether the present tenancy could be prolonged… . I wrote perhaps a little early agreeing to another year's occupation on the same terms as before.” He then asked to be allowed to cancel the letter of 10th June above quoted, and offered to abate the rent for the term then current in consideration of his son's getting possession in November 1880 for the purpose of making certain repairs. On the same day Mrs Ross replied stating her willingness to oblige Mr Lowson in the matter, but that she saw little prospect of being able to release him from the engagement of 10th June. On 3d September Mr Lowson wrote—“I intend resuming possession of the orchard and Orchard Cottage at Martinmas first, and beg to give you notice to that effect. I have also to remind you that the lease of Hay's Cottage and garden in favour of your late husband expires at

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Martinmas 1880, and as my present intention is to unroof and improve this cottage in early spring, I do not propose to extend your tenancy beyond Martinmas. Please consider the above as formal notice, and in acknowledging this letter, be good enough, as a matter of business, to state that you undertake that your servants will peaceably remove from the cottages referred to on the 11th November. This to prevent any chance of unpleasant difference with them.” Mrs Ross, and subsequently her solicitors on her behalf, replied stating that her construction of the letter of the 10th June was that the tenancy of the whole subjects, including both the orchard and Hay's Cottage as well as Westwood, had been extended to Whitsunday 1882. She offered, however, to give up Hay's Cottage, though at great inconvenience, on condition that Mr Lowson should purchase certain fixtures contained in it at a valuation.

Mr Lowson then brought this action in the Sheriff Court of Perthshire to have Mrs Ross removed from Hay's Cottage and from the privilege of pasture in the plantation.

The Sheriff-Substitute ( Barclay) found that (1) the defender's lease of Hay's Cottage expired at Martinmas 1880; (2) “That nothing has followed between the parties whereby a prolongation of the said lease has been definitely and legally fixed and determined to entitle the defender to possess for a year or any longer period than that stipulated in the lease.” He therefore granted decree of removing. In his note he said, with regard to the correspondence above quoted,—“There appears some difficulty in reading the correspondence between the parties. It would rather appear that the pursuer had only in view the lease of the house or cottage of Westwood, whilst the defender understood that the correspondence applied to the whole three separate possessions. It was unfortunate, however, that the pursuer had not more distinctly excepted Hay's Cottage. But be that as it may, it is impossible to hold that there existed a legal prolongation of the combined leases for another year after the longest term of endurance.”

The Sheriff ( Macdonald) on appeal recalled this interlocutor, and found that “by the letters of 10th and 12th June an agreement was entered into between the parties whereby the defender should become the tenant of the pursuer in the subjects foresaid” (Westwood, the orchard, and Hay's Cottage) “till Whitsunday 1882.” In his note, after narrating the facts, he said—“In these circumstances a correspondence was opened in the commencement of 1880, by the defender, with a view to ascertain whether she could hope to be allowed to continue at Westwood. The correspondence indicates the most perfect feeling of mutual confidence between the parties, and that they were negotiating on the most friendly footing. The pursuer at first indicated that he might not be able to oblige the defender, as a near relative proposed to take ‘the cottage.’ But after some further correspondence the pursuer wrote on 10th June offering to ‘extend the existing lease for one year, say to Whitsunday 1882, the tenure to be in every respect the same as formerly;’ and on 12th June the defender wrote accepting.

“It was admitted at the debate that the pursuer, in speaking of his possibly requiring the defender to give up ‘the cottage,’ meant her to understand her whole holding, including the orchard and the subject now in dispute; but it was contended that although he did so understand, and was intended so to understand, still the exact words of the letter of 10th June implied an offer only as regarded the cottage, and not as regarded the orchard or Hay's Cottage, and that therefore, although an agreement for a lease of the cottage was constituted, the pursuer is entitled to remove the defender from the orchard and Hay's Cottage before the time specified in the letters constituting the agreement. The pursuer's procurator at the debate declined to say for his client that such was the construction he intended the defender to put upon his offer, or that he could expect her to put that construction upon it in the light of their previous correspondence and his own knowledge of the use to which the orchard and Hay's Cottage was put. He based his case entirely upon a strict and literal reading of the letter of 10th June, and maintained that no other documents could be looked at in ascertaining what the parties intended to include in their agreement. The Sheriff is unable to give effect to this contention. The pursuer's own letter refers to the previous correspondence, and the words ‘the tenure in every respect to be the same as formerly’ makes reference to other sources of information indispensable.

Taking the letters of 10th and 12th June along with the other documents in the process, the Sheriff has no doubt whatever that the pursuer understood perfectly that the defender wished her whole occupancy to be prolonged, that the correspondence proceeded on that footing on both sides, and that the proposal to turn the defender out of a part now is the result of an afterthought.

The pursuer seems to have been desirous that the defender should give up her rights under the agreement contained in the letters of 10th and 12th June; but upon the defender explaining that although she would use every effort to get another residence, she could not absolutely undertake to oblige him, he at once changed his tone, and wrote her a letter in which all the old cordiality was awanting, and gave her notice to quit both the orchard and Hay's Cottage. Thereupon the defender consulted her agents, who wrote a most temperate and conciliatory letter, pointing out that the bargain, in the view of both parties at the time, applied to the whole subjects, but offering notwithstanding to give up Hay's Cottage if the pursuer would take over the articles in it at a valuation, as she could not have a sale of these few articles. The pursuer seems, however, to have resolved to exact whatever the letter of his agreement would allow of, and raised this action. The Sheriff is of opinion that had the question between the parties been, what conditions were to be inserted in a formal lease to carry out the agreement of 10th and 12th June, that the defender would have been in a position to insist that the agreement applied to her entire holding, and that therefore the pursuer is not entitled to remove her from part of it.”

The pursuer appealed to the Second Division of the Court of Session, and argued—The letter of 10th June could as matter of law refer only to Westwood, the prorogation of the lease of which

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for one year would extend it to “Whitsunday 1882,” and not to Hay's Cottage, which had a different ish. The effect of the defender's construction was to extend the lease of Hay's Cottage, which expired at Martinmas 1880, not for one year, but for eighteen months. Further, it was the pursuer's intention only to extend the lease of Westwood, and a fair reading of the correspondence showed that.

The respondent answered—The meaning of the letters plainly was that the parties agreed that the whole subjects, as they bad been long occupied, were to be let to the defender till Whitsunday 1882. Westwood, as the pursuer well knew, was not capable of comfortable occupation without the use of Hay's Cottage, and the intention was to continue the previous possession.