Scottish Court of Session Decisions

John Miller, a fishcurer and farmer, occupied certain lands on the estate of Forse, in the county of Caithness, on a lease which expired at Whitsunday 1885. The term of Whitsunday 1885 was the termination of a two years' lease of the subjects between the defender and Mr Sutherland, and accordingly it was necessary, under section 28 of the Agricultural Holdings (Scotland) Act 1883, that the defender, in order to prevent tacit relocation and to secure his right to remove, should have given notice of removal to Mr Sutherland at Martinmas 1884. Upon 8th November 1884, however, Miller had an interview with the proprietor Mr Sutherland of Forse, and the agreement entered into between them was expressed in the following letter, written by the proprietor to his factor and law-agent Mr Nimmo, writer, Wick:—“ 1st December 1884.—Dear Sir,—On the 8th of last month I arranged with John Miller, Boulglass, for a new lease to him from Whitsunday next of the farms and lots he now holds, at a yearly rent of fifty-three pounds (£53) and road-money. Duration of lease fifteen years, with breaks in his favour at the end of five and ten years. All improvements to be made solely at his own expenses, without any compensation to be paid therefor at the termination of the lease—wire fences excepted. As to the valuation he is now entitled to for the wood, flags, & c., on his houses, I have agreed that a sum of three hundred pounds (£300)—minus £2 per annum during the currency of the lease—is to be paid to him at his outgoing in lieu of all expenses and other

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claims. A stamped lease to be entered into; also a stamped lease for fourteen years to be given to Widow Miller and the representatives of the late Benjamin Miller, Burrogill, on the same conditions they now hold the farm.” The letter was given to Miller's wife on his behalf for delivery to the law-agent. It was handed to Mr Nimmo, but nothing was done in the way of preparing a stamped lease. Miller continued to occupy and work the farms.

Upon 24th February 1885 Mr Sutherland executed a trust-deed for behoof of his creditors, and Mr Henry Tod, W.S., Edinburgh, finally came to be the sole acting trustee under that deed.

Upon 25th April 1885 Mr Nimmo sent a letter to Miller, stating, inter alia—“With reference to Mr Sutherland's letter to me of 1st December last, I delayed preparing the leases in the knowledge that they would not be binding unless possession was had under them; and after the execution by him in February last of the trust-deed I brought it under the notice of the agents under the trust-deed, who informed me they had written to Mr Sutherland that it would be better to make no changes upon the rental by granting new leases.” Miller paid no rent after Whitsunday 1885.

In 1887 Mr Tod, as trustee, raised an action in the Sheriff Court of Caithness for payment of £97, 13s. 11 1 2d., being the rent payable under the old lease. He averred that the defender had been tenant by tacit relocation since the term of Whitsunday 1885, and that he declined to pay the rent.

The defender pleaded—“(2) Mr Sutherland's holograph document of 1st December 1884 constituted a valid and probative contract of lease in favour of the defender, binding upon the present pursuer. (3) The verbal agreement between the defender and Mr Sutherland of 8th November 1884 being proved scripto, and followed by rei interventus and homologation, constitutes a valid contract of lease in favour of the defender, binding upon the present pursuer. (4) The pursuer, as trustee for Mr Sutherland's creditors, is subject to all lawful duties and obligations entered into by Mr Sutherland affecting his heritable estate.”

On a proof by writ or oath of the alleged lessor of the lease, the Sheriff-Substitute found that the “verbal agreement for a new lease averred by the defender, and the reduction to writing of the terms thereof, also averred by the defender, have been proved by Mr Sutherland's oath,” and allowed the defender a proof of his averments of rei interventus.

It appeared from the proof that the defender had resorted to Mr Sutherland in November 1884 for the purpose of giving the statutory notice of his intention to quit his farm, but he abstained from doing so in consequence of the arrangement for a new lease at a reduced rate of rent. Mr Nimmo deponed that he did not execute a formal lease as directed by Mr Sutherland's letter of 1st December 1884 owing to the pressure of other engagements, and that after Mr Sutherland granted the trust-deed he ceased to think of making a formal lease. He further deponed that on 4th April 1885 he stated to the defender in conversation that he could not get a lease in terms of the said letter. This statement was, however, unsupported by other evidence.

The Sheriff-Substitute assoilzied the defender from the conclusions of the action.

In the course of the action Miller became bankrupt, and Alexander Geddes was confirmed trustee in his sequestration.

The pursuer appealed, and argued—There was here no settled bargain, and therefore there was no resiling from it by the pursuer, and no completion of it by the rei interventus of the tenant. Mr Sutherland certainly agreed to give a new lease, and wrote a letter to his agent to get that done, but before the end of the old lease he had granted a trust-deed to the pursuer, and he, as trustee, had repudiated the bargain for the lease as shown by Nimmo's letter of 25th April. The tenant knew that the bargain had been so cancelled, but he still continued to occupy the farm and to work it as he had been accustomed to do; he must therefore be held to have kept in the farm by tacit relocation, and so was liable for the rent due under the old lease. Even supposing a bargain had been completed between Mr Sutherland and the defender, Mr Sutherland was entitled to resile, and had resiled by his factor's letter of 25th April. The cases referred to in Morrison on Sale of Lands showed that always the document founded on was delivered by one of the parties to the other party, and although no definite answer was returned, that was sufficient to make a bargain. Here the letter founded on was not delivered by one party to the other, but was written by one party to his agent ordering him to do something, but before that something could be done the party had resiled from the agreement. Nor was rei interventus constituted even although the tenant on the faith of the new agreement had abstained from giving notice of removal to his landlord at Martinmas 1884. Three necessary elements of rei interventus were a wanting. There was no definite and explicit act which could be stopped if necessary; the alleged act of rei interventus was not known to the party against whom it was pleaded; and it was not unequivocally referable to the agreement—Bell's Prin. 26; Erskine v. Glendinning, March 7, 1871, 9 Macph. 656; Arbuthnot v. Reid, July 6, 1804, Hume, 815.

The respondent argued—There were two aspects of the case. Either the holograph letter of 1st December constituted a proper lease, or it did not. If it did, then the defender of course was working under the new lease, and no rei interventus was needed. It had been held in various cases that sales of property could be constituted by a probative document offering to buy or sell, given by one party to the other, without any formal acceptance of the offer— Fergusson v. Paterson, November 23, 1748, M. 8440; Muirhead v. Chalmers, August 10, 1759, M. 8444; Fulton v. Johnston, February 26, 1761, M. 8446; Arbuthnot v. Campbell, February 27, 1793, Hume, 785; Erskine v. Glendinning, March 7, 1871, 9 Macph. 656; Murdoch v. Moir, June 18, 1812, F. C.; Sutherland v. Hay, December 12, 1845, 8 D. 283 If the letter of 1st December did not constitute a new lease when delivered by one party to the other, as it was addressed to the landlord's agent, then it could be shown there was rei interventus, and so the lease was set up. The tenant had had a communing with his landlord, and had received a promise of a new lease, and so he did not give warning to quit his farm

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at Whitsunday 1885, which he would have needed to do if he did not wish to stay on at the old terms. Then he received the letter of 1st December, and trusting that the agent would make out a lease in proper form at his leisure he continued to occupy the farm. The letter from Mr Nimmo did not amount to a repudiation by Mr Sutherland of his engagement to give the defender a new lease— Ballantine v. Stevenson, July 15, 1881, 8 R. 959; Stuart v. Macra, Stuart, & Campbell, November 12, 1834, 13 S. 4, 7. There was either a completed bargain by handing Mr Sutherland's letter to his agent, or an incomplete lease was set up by rei interventus.

At advising—