Scottish Court of Session Decisions

This was an action for rent, raised in the Debts Recovery Court at Dundee, by David Stewart, solicitor, Dundee, proprietor of a warehouse at Arcade Buildings there, against Corrie, Mackie, & Company, jute and flax merchants. The warehouse was let to the defenders by the pursuer for nine months from 28th February to Martinmas 1884, at a rent of £60, payable half at Whitsunday and half at Martinmas 1884. The rent claimed in this action was £30, being that alleged to be due at Martinmas. The defenders refused to pay, and maintained that the rent was not due in respect that the subjects were let as a flax and jute warehouse, that the flooring gave way when only loaded to the extent of half its cubical capacity, and was even to a greater extent structurally defective and unfit for the purpose for which the warehouse was let.

It appeared that about the beginning of April some of the beams and joists of the floor of the upper flat of the warehouse gave way, and this part of the store became useless for the purpose of storing jute. The defenders shortly after removed the whole of their jute from the warehouse and abandoned their lease.

After a proof the Sheriff-Substitute, on 27th November 1884, found, inter alia—“(4) That at the time when the floor gave way … the defenders had in the upper flat of the warehouse about 1797 bales of jute, representing a

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weight of about 321 tons, and that these were arranged on the floor in tiers of eight and nine bales in height, representing a pressure on some parts of the floor equivalent to about 4 cwt. per square foot; and (5) That this was in the circumstances an unreasonable use of the upper flat on the part of the defenders, and the giving way of the floor was due not to any defect in its construction or in the materials, but to its being improperly overloaded by the defenders: Finds in law on these facts that the defenders are liable in the rent sued for, and that their claim of damage is not maintainable to any. extent; Therefore decerns against the defenders for payment to the pursuer of the sum sued for, being £30 sterling, and also for the further sum of £27, 6s. 4d. sterling of expenses, &c.

Note.—The result of the evidence in regard to the strength of the floor seems to me to be that it was a good ordinary warehouse floor, capable of bearing safely a weight of about 200 tons evenly distributed over it, and it is plain that its giving way was occasioned simply by the defenders putting a greater weight of jute upon it than it was intended to bear, or was capable of bearing. But the place was let to the defenders as a warehouse for storing jute, and therefore, unless it can be shown that the use which they took of the upper flat was excessive and unreasonable, having regard to its apparent strength or to its strength as known, or as it should have been known to them, I am undoubtedly bound to decide in their favour, at least to the extent of allowing them some abatement of rent, together with the costs incurred by them in shifting the jute that was in the upper flat. They were not, in my opinion, under any obligation before putting goods into that flat to have the floor examined to ascertain what weight it would safely bear, but were entitled to assume that the subject was reasonably fit for the purpose for which they took it, viz., as a jute warehouse. On the other, however, they were, I think, bound to use the subject reasonably, and if they have caused damage to it by what the Court or a jury consider a reckless and undue use of it, they must stand the consequences. Take, by way of illustration, the extreme case—the upper flat of this warehouse is, it appears, 22 feet 6 inches in height, and of such dimensions as to admit of about 600 tons of jute—which owing to its being very tightly packed is for its bulk an extremely heavy commodity—being placed in it, but would any business man say that it would be reasonable to put that quantity of jute upon an ordinary wooden floor of the area of the one in question. Mr Mackie himself admits in his evidence that it would be unreasonable to do so, and I cannot doubt the propriety of the admission. But if the defenders were not entitled to fill the flat with jute up to its cubical capacity, the question arises how much jute were they entitled to put into it? where, in other words, is the line to be drawn? To this question it is not possible to give any definite answer. All that can be said is that the Court will support any use which is not shown to be on the part of the tenants clearly unreasonable in extent, regard being had in considering the matter to what the tenants knew or ought to have known about the strength of the floor.

Now, what as matter of fact was the extent of the use which the defenders made of this upper flat? Upon this branch of the case I entertain no doubt, but am satisfied that the result of the proof in regard to it is correctly given in my fourth finding. ….

Assuming these to be the facts, it may be doubted whether even if the defenders had bad no previous acquaintance with the warehouse they could have escaped a verdict against them on the question of unreasonable overloading. It is unnecessary, however, for me to say what conclusion I might have come to had I been dealing with strangers to the warehouse. The defenders were not in that position. The block of warehouses to which No. 4 warehouse belongs, if not built expressly for them, was certainly built in the expectation that they were to become tenants of the whole block. They were consulted about the plans. Black, their warehouse inspector, is proved to have stated to the pursuer's architect that the upper flats would not be required for jute; and at the suggestion of the same gentleman—a suggestion made with a view to obtaining greater use of the ground flat—the plan of No. 4 warehouse was altered to this extent, that one of the two rows of pillars by which according to the original design the floor of the upper flat was to have been supported was dispensed with, which had, as Mr M'Laren tells us, and as can be easily understood, the effect of somewhat diminishing the bearing strength of the floor. Add to all this that the defenders were in reality paying next to nothing for the upper flat (for calculated at 30s. per 1000 cubic feet, which is the rent they had Nos. 1, 2, 3, and 5 warehouses at, the rent of the accommodation afforded by the ground floor of No. 4 would from the period from 26th February to Martinmas be about £57, while the total rent agreed to be paid by them for No. 4 for that period was only £60), and I think I am justified in saying that at the time they were making their bargain they did not anticipate getting much use of the upper flat, and in holding that in loading it as they did they acted unreasonably and recklessly. That at least is the opinion which after full consideration I have formed, and which is the basis of the above judgment, but I am free to admit that it is by no means a clear or decided one, and that the case has puzzled me not a little.”

Upon appeal the Sheriff ( Trayner) adhered.

“ Note.—[ After stating concurrence with the Sheriff-Substitute, except in the finding that the warehouse was let as intended for storing jute] —1 am of opinion (1) that the warehouse was not let specially as a warehouse for storing jute; (2) that the warehouse floor was, as regards its strength and construction, equal if not superior to most warehouses in Dundee; (3) that the defenders loaded the warehouse floor unreasonably; and (4) that the floor gave way in consequence of the unreasonable load placed upon it, as well as (to some extent) through the bad usage it received at the hands of the defenders' servants. On these grounds I am of opinion that the pursuer is entitled to decree.”

The missives of let were produced. They are referred to in the opinion of the Lord President.

The defender appealed to the Court of Session, and argued that the premises were quite insufficient for the purposes for which they were let, and on the evidence they were defective in construction;

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there was no undue loading of the floor. In the circumstances no rent was due.

Authorities— Sauer v. Bilton, 1878, L.R. 7 Ch. Div. 815; Manchester Bonded Warehouse Company v. Can, 1880, L.R. 5 Com. Pl. Div. 507.

Argued for pursuer—The warehouse was of ordinary construction. No warranty of sufficiency was given. The warehouse was grossly overloaded and unequally packed. There was undue and unreasonable use of the warehouse.

At advising—