Scottish Court of Session Decisions

This action was raised by Hugh Munro, heir of entail in possession of the estate of Barnaline, Argyllshire, against two of his tenants, William and James M'Geogh, to recover £64, 11s. 8d. alleged to be due to him as arrears of rent of the farm they occupied.

The pursuer averred that the farm was let at a rent of £125, of which £64, 11s. 8d., the sum sued for, remained unpaid, and denied that the defenders' counter claim for abatement was well founded.

The defenders in answer admitted that the sum sued for had been retained by them from the rent of the farm, but averred that they were entitled to abatement of rent in respect of the pursuer's failure to implement his part of the agreement with the defenders to an extent exceeding the sums retained by them. In particular, they averred that under the lease the pursuer was, inter alia, bound to put the buildings on the farm in good tenantable order before handing them over to the defenders, and to furnish the defenders with wood for fences, but that he had failed to do either of these things, and had thereby caused them loss to an extent exceeding the amount of the rent retained by them.

The pursuer pleaded, inter alia—“(2) The defenders' claim being merely one of damage and illiquid, cannot be set off against the pursuer's claim for rent. (3) The defences being irrelevant and insufficient, and unfounded in fact, the pursuer is entitled to decree as craved.”

The defenders pleaded, inter alia—“(3) The pursuer having failed to implement his agreement with the defenders to put the buildings of the farm in repair and supply wood for fencing, whereby the defenders were deprived of the beneficial use and enjoyment of the subjects let to an extent exceeding the sums retained by them from their rent and now sued for, the defenders are entitled to retain said sums, and are now entitled to be assoilzied from the conclusions of the summons.”

The Lord Ordinary ( Kinnear) on 26th July 1888, before answer, allowed a proof of averments, to proceed on a day to be afterwards fixed.

“ Note.—The pursuer maintains that he is entitled to decree without inquiry into the disputed matters of fact, on the ground that a tenant is not entitled to retain rent on account of an illiquid claim of damages. But the defender is in possession under missives of lease by which it is stipulated that the barn, byre, and stable shall be handed over to him in tenantable repair. These buildings are portions of the subject let, and are indispensable for the beneficial occupation of the farm. If the defenders' averments are true in fact, he has not received full possession, and it follows that the landlord's claim is not liquid because he has not delivered the subjects in the state agreed upon. The case appears to me to be distinguishable from those in which it has been held that a liquid claim for rent cannot be met by an illiquid claim of damages for breach of a collateral obligation, and to fall within the rule laid down in Graham v. Gordon, 5 D. 1211, which has been followed in subsequent cases. The facts might probably be ascertained more economically than by a proof, but the pursuer declines in the meantime to consent to a reference or remit.”

The pursuer reclaimed, and argued—If the tenant had any counter claim to the claim for rent it was one of damages merely. Such an illiquid claim could not be set off against a claim for rent. The averments of the tenant were not such as to constitute defective possession.

Authorities— Macrae v. Macpherson, December 19, 1843, 6 D. 302; Dods v. Fortune, February 4, 1854, 16 D. 478; Graham v. Gordon, June 16, 1843, 5 D. 1207; Muir v. M'Intyres, February 4, 1887, 14 R. 470.

The defenders were not called on.

At advising—