Scottish Court of Session Decisions

By lease dated 12th October and 30th November 1863 James Earl of Southesk let to David Kinnear Hall, residing at Fithie, and David Mitchell, then residing at Kirkside House, St Cyrus, and their heirs, the farm of Fithie in the county of Forfar, for nineteen years from and after Martinmas 1861. In January 1865 Hall assigned his interest in the lease to Mitchell, who thereafter continued as sole tenant down to the expiry of the lease at Martinmas 1880. It was, inter alia, stipulated by the lease that the tenants should be bound to cultivate and crop the lands according to the rules of good husbandry, and in particular that oneportion of the farm should be cropped according to the six-shift rotation, and the other according to the seven-shift rotation; and the tenants bound and obliged themselves, in case they should deviate from the method prescribed, to pay to the proprietor the sum of £3 of additional rent for each acre miscropped, such additional rent being considered as pactional and not penal.

This was an action in the Sheriff Court of Forfarshire at Forfar at the instance of David Lamb, the incoming tenant of the farm of Fithie. He sued as assignee of the Earl of Southesk of his right of action for recovery of whatever pactional rent or damage had accrued from the miscropping, to recover from David Mitchell the amount alleged to be due in respect of miscropping during the last two years of the lease, viz., for the year 1879 the sum of £219, 4s. 10d., whereof one-half, or £109, 12s. 5d., was payable at Candlemas 1880, and the other half, or £109, 12s. 5d. at Lammas 1880, and for the year 1880 the sum of £257, 19s. 9d., payable at Martinmas 1880.

It was not denied that a different course of cropping had been adopted from what the lease prescribed; in a number of instances fields had been cropped under the six-shift which the lease said were to be under the seven-shift, and vice versa. The result at the end of the lease was, that the defender had a larger acreage under green crop, one-year-old grass, and permanent grass, and a correspondingly smaller acreage under grain and second year grass, than he would have had if he had strictly adhered to the provisions of the lease.

The defender pleaded, inter alia, that the landlord, the pursuers' author, had acquiesced in the cultivation complained of.

From the evidence of the defender and his grieve it appeared that the change in the mode of cultivating the farm began very soon after the defender entered on the lease, and the landlord's factor, Mr C. Lyall, knew of it, and drew the defender's attention to it from time to time. On 19th March 1874 he wrote to the defender as follows:—“Dear Sir,—I take this opportunity to draw your attention to the cropping clause in the lease. My reason for doing so is that I see some of the fields in two divisions, and I cannot see how this should be if the cropping had been right. I am not in the habit of looking very particularly as to the cropping if I see other things right, but the foul state of the quarry field, which has to be sown down, renders it necessary for me to bring these matters under your notice.” On 9th February 1878 he again wrote:—“Dear Sir,—When passing Fithie to-day I noticed that you had begun to plough up the field of one-year-old grass to the east of the Rossie Muir road. Allow me to call your attention to the terms of the lease, and to point out to you that the field should have remained in grass for another year. I would recommend that you should at once stop breaking up this field, as by doing so you will be contravening the terms of the lease.—Yours,” &c. Mr Lyall was examined as a witness, and in the course of his evidence said—“I always gave receipts in full to the defender, which I presume means acquiescence on my part to the system of cropping he was adopting. There was neither remonstrance, protest, nor reservation on my part, nor on that of

Page: 414↓

the landlord…. I thought that the defender had a very dear bargain, and being otherwise satisfied with him, I took no exception to anything that was going on. I might certainly have seen that there was not the same quantity of two-year-old grass that there used to be had I looked narrowly into it, but I did not look narrowly into it for the reason I have given.” In 1878 Captain Carnegie became factor, and although he spoke and wrote to the defender about the cropping of the farm he gave him a full discharge for crop 1877, for crop 1878, and a receipt which the Sheriff-Substitute and Sheriff held to be a discharge for crop 1879. The claim of the pursuer was restricted to the two last years of the lease, although the miscropping had gone on for many years, because full receipts for rent were admittedly given every year except the last two.

On 9th February 1882 the Sheriff-Substitute ( Robertson) pronounced this interlocutor:—“Finds that by this lease a certain portion of the farm was to be cultivated under what is known as the seven-shift system, while another portion was to be cultivated under the six-shift system: Finds that soon after the defender entered on the farm a different system of cropping was adopted from what the lease prescribed: Finds that certain fields which are correctly set forth in the condescendence, and which ought by the lease to have been cropped under the seven-shift system, were cropped under the six-shift: Finds, on the other hand, that certain other fields which by the lease should have been cropped under the six-shift system, were cropped by the defender under the seven-shift: Finds that this deviation from the cropping laid down in the lease was practised under the eye of the landlord and his factors: Finds that the defender was allowed by them to continue this system of cropping down to the end of the lease: Finds that no claim for miscropping or reservation in the receipts for rent was ever made during the lease, but that full receipts were given for the rent of the farm with the exception of the last year, the rent of which has not yet been settled: Finds that a final statement of what rent was due for the last year of the lease was given by the agents of the landlord to the defender some months after he left the farm, and after the expiry of the lease: Finds that in this final state, which disposed of certain counter-claims against the landlord, a certain balance of rent was brought out, which the defender was asked to pay: Finds that no claim was made in this final state for miscropping: Finds that, owing to the defender's counterclaims being still under consideration, the accounting between Lord Southesk and the defender has never been adjusted, and no receipt has yet been given for the last year's rent: Finds in law, that a proved course of acquiescence for a series of years is a bar to a claim for miscropping: Finds further in law, that such acquiescence can be proved by facts and circumstances: Finds that the facts and circumstances of the present case, as brought out in evidence, show acquiescence, which in law bars the present claim: Therefore assoilzies the defender from the whole conclusions of the petition, but finds no expenses due to or by either party, and decerns.”

“ Note.—… Although no actual consent has been proved in the present case, the long continued acquiescence which has been proved comes so very near to it that the Sheriff-Substitute cannot bring himself to think, either in equity or fair dealing, that the present claim can now be sustained.”

The pursuer on 14th February 1882 appealed to the Sheriff ( Trayner), who on 3d April 1882 pronounced this interlocutor:—“Recals the interlocutor appealed against: Finds that the defender during the year 1880 cropped the farm in question to some extent in contravention of the terms of the lease, and has thereby incurred liability for the additional pactional rent of £3 per acre for each acre so miscropped in that year, and with this finding remits to the Sheriff-Substitute to proceed with the cause.”

Note.—It is not disputed that the defender has for many years, if not during the whole currency of his lease, cropped his farm in a manner different from that prescribed by his lease. His contention, however, is that such deviations from the terms of the lease were known to and acquiesced in by the landlord or his factor. I think the defender has failed to prove this. Mr Lyall, who was factor up to 1878, does not seem to have paid any particular attention to the defender's mode of cropping the farm, and it may be that miscropping went on without his objecting to it. But it is certain that both in 1874 and 1878 he checked the defender's proceedings and called attention to the requirements of the lease. The defender's attention was again called to this by Mr Carnegie in 1880, who by that time had become factor. These letters are quite inconsistent with the idea of the landlord or his factor having authorised or acquiesced in deviations from the lease, and it appears to me that the defender has failed to show that, any time after the lease was granted, any authority was given to him to depart from its provisions, or that any such departure was known and acquiesced in. On the other hand, I am of opinion that the receipts granted to the defender year by year, discharging the rents due to the landlord, bar the latter (and the pursuer, his assignee) from now claiming any pactional rent for miscropping during these years. It may be doubtful whether the receipt for the last half-year's rent for year and crop 1879 is of such a kind as to bar the landlord's claim, but I am disposed to give the defender the benefit of that doubt, and accordingly hold the pursuer's claim limited to the miscropping that took place in 1880.”

On 5th October 1882, the defender having died, his trustees were sisted in his place, and on 31st October 1882 the Sheriff-Substitute decerned against them for the sum of £236, 18s. 11d. as the amount of pactional rent due by them, but in respect of the pluris petitio of pursuer in making a claim for the year 1879 found him entitled only to one-half of his expenses.

The defenders appealed to the Court of Session, and argued—That although no assent had been proved, the long-continued acquiescence was equivalent to it— Taylor v. Duff's Trustees, January 13, 1869, 7 Macph. 351; Forrest & Barr v. Henderson, November 26, 1869, 8 Macph. 187—and that the landlord was barred by the terms of the receipts for rent from making any claim for any year preceding 1880— Hunter v. Broadwood, February 2, 1854, 16 D. 441; Baird v. Mount, November 19, 1874, 2 R. 101.

Page: 415↓

The pursuer relied on the case of Millar v. gwydir, May 26, 1824, 3 S. 42—( aff. March 8, 1826, 2 W. & S. 52.

At advising—