Scottish Court of Session Decisions

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Cite as: [1888] ScotLR 25_354, [1888] SLR 25_354

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SCOTTISH_SLR_Court_of_Session

Page: 354↓

Court of Session Inner House First Division.

[Sheriff-Substitute, Edinburgh.

Wednesday, February 29. 1888.

25 SLR 354

Menzies

v.

Whyte.

Subject_1Reparation
Subject_2Damage Caused to Tenant by Operations on Adjoining Premises
Subject_3Duty of Tenant to Call on Landlord to Protect-Relevancy.
Facts:

In an action of damages at the instance of the tenant of a shop against his landlord, in respect of operations by a third party upon the adjoining premises, which the tenant averred had compelled him to leave the shop, held that it was the duty of the tenant, before leaving, to have called on the landlord to protect him in the beneficial occupation of the subjects let, and, as there was no averment that he had done so, action dismissed as irrelevant.

Headnote:

This was an action of damages at the instance of Robert Menzies, fishmonger, against William Thomas Whyte, chartered accountant, Edinburgh. The defender had let to the pursuer the shop and premises No. 173 Morrison Street, Edinburgh, to be occupied by him as a fishmonger, at an annual rent of £15, for three years, with entry at Whitsunday 1887.

The pursuer's averments were these:—“The pursuer entered into possession on 1st July 1887. On the 4th of that month, being three days after pursuer's entry, operations were commenced to take down the old buildings immediately to the west of pursuer's said premises, and a new tenement is in course of erection on the site. In these operations there has been erected on the west side of pursuer's front shop a hoarding of about six feet high, which extends from the front wall of said shop and into
Page: 355↓
Morrison Street 36 feet or thereby. Said hoarding encroaches on the front wall of pursuer's said shop, cutting off or covering part of his signboard; besides, the hoarding is so defective that it does not afford protection against lime and other dust arising from said operations reaching pursuer's said premises, and destroying his goods. The drainage-pipe within the front railing of pursuer's said premises, and connected therewith, has been cut, and the pursuer deprived of the use thereof. Part of the oven in the pursuer's back shop, and which oven is required by him in his business, has been taken down, and an opening made through which any person may enter the premises. As said new building is proceeded with, the pursuer will be deprived of the window light in the centre room or division of said premises. By these proceedings the pursuer has been deprived of the use of said shop and premises and he has been compelled to leave the same and relinquish his business.”

Immediately before the pursuer left the premises in question his agent had written a letter to the defender on 12th August 1887 in these terms—“By the operations on the tenement, or in the building of a new tenement, adjoining Mr Menzies' shop at 173 Morrison Street, his business has been stopped, and the shop shut. A hoarding has been put up in front of, and close to, and on the front wall of the shop, the window in the centre division of the shop has been broken, and in time will be built over. Part of the back wall has been taken down, and through the opening the shop can be entered. Mr Menzies will claim damages for the stoppage thus put to his business, and being compelled to leave the shop.”

The pursuer pleaded—“(1) The defender having let to the pursuer the premises as condescended on, and the pursuer having been compelled to leave the same through his being deprived of the use thereof, the pursuer is entitled to damages as concluded for. (2) The defender being proprietor of the premises let by him to the pursuer is bound to protect him in the useful possession thereof, and the defender having failed to do so, and the pursuer having been compelled to remove from the same under the circumstances condescended on, the pursuer is entitled to decree as craved, with expenses.”

The defender pleaded that the action was irrelevant.

On 21st October the Sheriff-Substitute ( Rutherfurd) found that the pursuer's averments were not relevant or sufficient to infer liability for damages on the part of the defender, and dismissed the action.

The pursuer appealed to the Court of Session, and argued—This was not a case for a mere abatement of rent; the landlord should be found liable also in damages for the loss of business suffered by the tenant—Ersk. ii. 6, 43; Deans, 1681, M. 10, 192. What was made out against the landlord here was personal fault, because when asked to vindicate his tenant's rights he refused. The duty of the landlord was to maintain his tenant in the beneficial possession of the subject, and this he had failed to do— Kippen v. Oppenheim, Dec. 13, 1847, 10 D. 242; Goskirk v. Edinburgh Station Access Company, Dec. 19, 1863, 2 Macph. 383; Laurent v. Lord Advocate, March 6, 1869, 7 Macph. 610; Miller v. Renton & Beattie & Son, Dec. 8. 1885, 13 R. 300.

Argued for the respondent—The action was irrelevant. The tenant was not entitled to leave before writing the letter of 12th August. He ought to have waited to see whether the defender would do anything for him. The damage complained of was repaired as soon as notice was sent regarding it. The actings of the pursuer were unreasonable— Gardner v. Donald & Walker, July 19, 1862, 24 D. 1430.

At advising—

Judgment:

Lord President—The premises in question were let by the defender to the pursuer to be used by him in his business as a fishmonger. The allegation of the pursuer is that he entered into possession of the premises upon the 1st of July last, and that three days thereafter operations were commenced for the purpose of taking down certain old buildings immediately to the west of his premises; that a hoarding was erected in front of his shop which caused him great inconvenience, and that in consequence of these operations on the adjoining buildings his goods were destroyed. I think it was admitted by the appellant's counsel that these statements were not relevant; but then the pursuer goes on to aver that “the drainage-pipe within the front railing of pursuer's said premises, and connected therewith, has been cut, and the pursuer deprived of the use thereof. Part of the oven in the pursuer's back shop, and which oven is required by him in his business, has been taken down, and an opening made through which any person may enter the premises.” Now these are undoubtedly encroachments upon the rights of the pursuer in his enjoyment of the subject of the lease, whether they are made by the landlord or by some third party. What the pursuer ought to have done was undoubtedly to have gone to his landlord and called upon him to defend him in the beneficial occupancy of the subjects. If the defender here had thereupon refused to take any steps to protect his tenant, or had delayed to do anything for him, that would have been a very different state of matters from what we have to deal with. But it is essential that the pursuer should aver that he took some step of this kind, and I can see no relevant averment that any such course was followed. What the pursuer has to show is that on his applying to the landlord to defend him the latter absolutely refused or wilfully delayed to do so.

In place of making any such averment the pursuer's counsel read a letter which I have no doubt he would desire if it could do him any good to embody in his condescendence. That letter is as follows—[ reads letter quoted above.]

Thereafter, without waiting to see if the landlord would do anything in the matter, he shuts the shop and leaves the premises. In all this I can see nothing to suggest a failure of duty on the part of the landlord, but a good deal to indicate a failure of duty on the part of the tenant, and I think his action of damages against his landlord accordingly breaks down.

I am for adhering to the Sheriff-Substitute's interlocutor.

Lord Adam and Lord Kinnear concurred.

Lord Mure and Lord Shand were absent from illness.

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The Court adhered.

Counsel:

Counsel for the Appellant— M'Lennan. Agent— E. Broateh, L.A.

Counsel for the Respondent— Gunn. Agents— Cownie & Galbraith, S.S.O.
1888