Scottish Court of Session Decisions

By missive dated in 1858 David Skinner offered for a nineteen years' lease of a croft of ten acres on Mormond, part of Lord Saltoun's estate, in, inter alia, the following terms:—First, Skinner was to enclose and improve the said croft according to certain specified conditions; Second, he was to possess it rent free for the first three years, he was to pay 2s. per acre for the fourth year, and

Page: 596↓

2s. per acre additional for each succeeding year until it reached 10s. per acre, at which rent it was to remain for the rest of the lease; and Fourth, he bound himself “to build a house on said croft within the first three years of the lease, and that agreeably to a plan and in such a situation as shall be approved of by you, for which I am to receive payment at the end of my lease according to the regulations, if built of stone and lime, and slated.” This offer was accepted by Lord Saltoun's factor on his behalf, and Skinner entered into possession.

On the termination of the lease in 1877 Skinner made no claim on Lord Saltoun for the value of the house which he had erected in fulfilment of article 4 of the missive offer, but continued in possession of the croft under a new lease, whereby Lord Saltoun let the croft to Skinner and one of his sons for the space of one year from and after Whitsunday 1877, and thereafter yearly until any term of Whitsunday previous to which they should have given to or have received from Lord Saltoun, or those acting for him, twelve months' notice in writing. That lease contained this provision—“Further, the tenants hereby renounce and give up all claims in respect of houses and dykes on the said croft; and bind themselves and their foresaids, at their own expenses, to maintain and uphold the same in good repair during the currency of this lease, and at its expiry to leave the same to the proprietor or incoming tenant without any claim for payment.” Skinner and his son continued in occupation of the croft under this lease until Martinmas 1884, when they were removed under decree of removing.

In January 1885 Skinner brought an action in the Sheriff Court at Aberdeen against Lord Saltoun for £100 as the value of the buildings he had erected on the croft under the missive of 1858. He founded on the missive and stated that the house which he had erected was of the value of £100. He further denied the defender's averment in answer, and explained that the defender's factor approved of the said house.

The defender called on the pursuer to produce “written evidence that the defender's factor approved of the house built by pursuer, which house is not of a description for which defender is bound to pay under the said missives of lease, in respect that it is not built of stone and lime and slated.”

The defender further in his statement of facts founded on the clause of discharge in the lease of 1877, and in answer the pursuer averred that that lease had been signed by him and his son in essential error and ignorance of its provisions, induced by the representations of the defender's agent.

The pursuer pleaded—“The pursuer having built a house, and the defender having agreed to pay for same, the pursuer is entitled to decree as prayed for. (2) The pursuer has never renounced his claim for said house, and is entitled to decree as prayed for. (3) Separatim—The 1877 lease having been signed by pursuer in essential error, induced by the active misrepresentation of the defender's agent, the pursuer is entitled to have the same set aside by way of exception.”

The defender pleaded—“(1) Pursuer having failed to build a house of a description for which defender is bound to pay under the missives of lease founded on by pursuer, the defender should be assoilzied, with expenses. (2) The pursuer having renounced and given up in 1877 the claim made in this action, defender should be assoilzied, with expenses.”

A proof was allowed. The evidence was to the following effect. The buildings erected by the pursuer were not of stone and lime, but of stone and clay, and in place of being slated they were tiled with some thatch added. They consisted of a dwelling-house and outhouses. The former the defender's witnesses valued at £22, 14s. 9d., the latter at £17, 3s. 6d. The pursuer put in a detailed state which brought out a total value of £70, 3s. for the dwelling-house and £38, 8s. 3d. for the outhouses. No written approval by the defender or his factor of buildings of this character was produced, but the pursuer and his son spoke to that approval having been given by the factor verbally. The factor was dead at the date of the action. The evidence bearing on the signing of the lease of 1877 by the pursuer and his son is sufficiently detailed in the Sheriffs’ notes.

On 6th August 1885 the Sheriff-Substitute (Dove Wilson) pronounced this interlocutor—“Finds that by the pursuer's lease of 1858 he was entitled to receive at its expiry payment for the house to be built by him, if built of stone and lime and slated: Finds that the house was not built of these materials, but was built of stone and clay, and tiled: Finds that the pursuer has failed to prove that the defender had agreed to waive the stipulation in the lease on this point: Finds further, that under the lease of 1877, which was granted at the expiry of the former lease, the pursuer specially agreed to renounce all claim in respect of the said house, and that the pursuer has failed to prove that he entered into this renewed lease under essential error as to its terms: Finds that the pursuer has no claim, either at common law or under the terms of the leases libelled, for payment of the value of the said house: And therefore assoilzies the defender from the conclusions of the action: Finds the defender entitled to expenses, &c.

“ Note.—The pursuer claims £100 as the value of a house built by him on the croft which he leased from the defender. It turns out that this claim is made up partly in respect of a dwelling-house and partly in respect of certain outhouses. The former the pursuer values at £70, 3s., and the latter he values at £38, 8s. 3d.; while for the defender the two are valued respectively at £22, 14s. 9d. and £17, 3s. 6d. The outhouses, however, are not covered by the terms of the lease, and they therefore by the action of the law fall to the landlord without payment, it being presumed that when the pursuer took his croft he had in view, in fixing the rent he could give, that whatever accommodation of this kind he put up he would have to leave it behind him. With regard to the house, the defender pleads that any claim which the pursuer might otherwise have had, under his lease of 1858, is excluded, firstly, by the pursuer not having built the house of the stipulated materials; and secondly, by the fact that when the renewal lease of 1877 was granted, the pursuer recognised this and renounced his claim. In the event of these two pleas failing, the defender pleads, thirdly, that the pursuer is due him as arrears of rent a sum, namely, £22, 16s. 10d., which is in

Page: 597↓

excess of the true value of the house, and that the one claim falls to be set off against the other. The terms of the original lease are quite distinct. The pursuer is promised repayment of the house if it is built of stone and lime and slated. There is no other promise of repayment; and as it appears the house was not built in the manner stipulated, but in a manner which was, in one respect at all events, very decidedly inferior, this promise is inapplicable. There is no evidence that the defender, or anyone on his behalf, consented to the substitution of any other promise. The pursuer and his son say that the factor for the time agreed to the change of materials, and it seems certain that the factor, at all events, did not make any objection. But the factor appears to have had no power to object to such a change. If the pursuer chose to build his house in an inferior manner he could do so, the only result being that he lost his claim for its value. What is wanted is evidence to shew that any promise was made to give value for the inferior house. Such a promise ought to have been made in writing, but there is not even satisfactory evidence that a verbal promise was made. Under the original lease, therefore, it appears to me that the pursuer has failed to make out his claim. Under the renewed lease of 1877 there is no question but that the claim for the value of the house was, as matter of fact, renounced. The question is, whether the renunciation was not given in essential error as to its terms? If it had appeared that the pursuer had had a claim to a considerable amount, I think that there would have been some force in his plea on this point. It would be a thing most unlikely in itself that the pursuer would surrender any large claim for the sake of getting merely a lease from year to year, which was all he got on renewing; and as it rather appears that he never saw a draft of the new lease, or heard it fully read over, or got a copy of it, the room left for his being under essential error as to its terms are pretty wide. But as it appears that the pursuer then had no claim under the original lease, the probability of his consenting to a formal discharge is great; and as he has not shown that he was wilfully misled in any way, and as he might, had he felt inclined, have taken his own time to read and examine the renewal lease, the discharge in it must stand. At common law it is needless to say that the pursuer had no claim to the value of anything which he might erect on the property of another.”

The pursuer appealed, but on 13th November 1885 the Sheriff (Guthrie Smith) adhered to his Substitute's interlocutor.

“ Note.—At Martinmas 1858 the pursuer became tenant of a croft belonging to the defender for the space of nineteen years, under an agreement which bound him to build a house, for which he would be paid at the end of the lease, ‘according to the regulations, if built of stone and lime and slated.’ The house was built.. . .

The defender is now sued for the value of the house, and objects, in the first place, that it was not ‘slated,’ but ‘tiled.’ I think this is a plea not entitled to much weight. The clause in the contract between the parties specifying the kind of building which was to be erected by the tenant was capable of being varied by mutual consent, and any reasonable evidence that assent was given by the defender's factor when the building was in progress, to the substitution of tiles for slates, ought, I think, to be accepted. The evidence to that effect which has been adduced is not very distinct, but it is considerable; and in the absence of evidence to the contrary I should have been disposed, if the case had turned on this point, to accept it as sufficient.

The defender's second plea is, however, more serious. When the lease came to an end in 1877, a fresh lease was entered into, to run for no definite time, but to be terminable on a year's notice. That lease is signed by the pursuer and his son; it is a probative document, and in it the tenants ‘renounce and give up all claims in respect of houses and dykes on the said croft, and bind themselves, at their own expense, to maintain and uphold the same in good repair during the currency of the lease, and at its expiry to leave the same to the proprietors or incoming tenant, without any claims for payment.’ This clause clearly excludes the present claim; and the defender argues with some force that it was one of the considerations which induced him to execute the new lease in 1877, and under which the pursuer had seven years' possession of the croft down to November 1884. It is no answer for the pursuer to say that he signed the lease without reading it, and that it was always his belief that its legal effect was not to extinguish the claim for the houses, but to postpone it till his tenancy came to an end. I have read the evidence to see if there was anything of the nature of fraud or misrepresentation on the part of the factor to justify this plea. The pursuer explains that no draft of the lease was sent to him; and although he had it in his hands to read over in the estate office when he called to sign it, he did not take time to do that. Nothing was said about the houses, and he was not told that he was giving up his claim to meliorations; had he known that he would rather have left altogether. But apparently there was no misrepresentation by Mr Gray of the nature of the document. On the contrary, he began reading it, and he did not refuse to read the whole. But Mr Skinner says ‘he had not very much time, and I had not very much either, so I just took it for granted what was in the rest. It was perhaps on both our suggestions that the lease was not fully read.’

Such being the circumstances, according to the pursuer himself, attending the execution of the document, I fail to see any ground for saying he is not bound by it. Relief is often given against a deed which by mistake does not correctly represent the intention of both parties. But when the mistake is personal to one of them, and he cannot show that he was in any way misled, he cannot defeat the performance of the agreement because he mistook its legal meaning and effect. The mistake which entitles to relief must be not only material but free from culpable negligence; and a person who executes an instrument carelessly without even reading it must bear the consequences—( 2 Pomeroy's Eq. Jur. 322). On these grounds the judgment of the Sheriff-Substitute appears to me to be right.”

The pursuer appealed.

Page: 598↓

Authority— Kirkpatrick v. Allanshaw Coal Co., Dec. 17, 1880, 8 R. 327.