Scottish Court of Session Decisions

Peter Westren, goldsmith, was tenant of

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27 Frederick Street, Edinburgh, at a rent of £120 sterling per annum, payable half-yearly at the usual terms, on a lease granted by the proprietor Charles Ramsay Gilchrist of Falla, Lanarkshire. The lease was for seven and a-half years from and after the term of Martinmas 1881, and contained this clause—“Lastly, the said tenant binds and obliges himself and his foresaids to flit and remove from the whole premises hereby let at the termination of this lease without any warning or process of removing.” Upon 28th May 1889 Westren removed his stock, furniture, fittings, &c., to new premises at 70 George Street.

The proprietor and his factor and commissioner, C. B. Logan, W.S., presented a petition in the Sheriff Court at Edinburgh for warrant to carry back the stock, &c., to 27 Frederick Street, and to sequestrate the same in security, and for payment of a year's rent from Whitsunday 1889.

The pursuer averred that the defender was tenant of the premises for a year from Whitsunday 1889 by tacit relocation following upon the lease.

The defender averred that on 21st January 1889 he had given notice of his intention to remove at Whitsunday to the house-agent with whom he transacted all business relating to the premises.

The defender pleaded—“(2) The defender not being tenant of the premises in question for the year from Whitsunday 1889 to Whitsunday 1890, is not liable in the rent thereof, and the pursuers are not entitled to warrants of sequestration as craved. (3) The defender having removed from the said premises in terms of the obligation upon him to do so contained in said lease, and not having occupied the premises after the term of Whitsunday 1889, the pursuer is not entitled to plead tacit relocation.”

The Sheriff-Substitute ( Rutherfurd) allowed a proof. From this it appeared that in 1888 the defender had fallen into arrears with his rent, and the pursuer sequestrated his effects in security and for payment of the rents falling due at Martinmas 1888 and Whitsunday 1889.

The defender deponed—“On 21st January 1889 I called at Queensferry Street, and saw Mr Robert Stewart Patterson, and told him my errand. I cannot swear that I told him then that the rent was too high, and that I did not think of remaining, but I had been talking about the rent before and grumbling at it. I intimated that my lease was out in 1889, and that I would be done with it in May. I said at the same time that I wished to know if I could have a new lease, and upon what terms. He said he would write to Mackenzie, Innes, & Logan, and lay the matter before them, and as soon as he got an answer he would send it to me. I expected to hear within the next few days, but did not. On 31st January I called again. I again saw Mr R. S. Patterson. I said I was disappointed at not having received an answer, and he said with a feeling of disappointment also, ‘We have never received an answer to the letter we sent to Mackenzie, Innes, & Logan, but we shall write again to-day, and so soon as we get an answer we shall let you know in due course.’ I never heard from him, and I eventually took premises in George Street. I made application for them on 23rd February, and they were finally taken about the 1st or 3rd April. The arrears of rent for the Frederick Street premises were fully paid up before I removed, but I cannot tell the date. It appears from the papers that it was on 28th May. I removed from the premises on the term day, the 28th May.”

Patterson deponed—“He never gave us any written notice that he was going to leave at the end of the lease. I wrote two letters regarding the property to Mackenzie, Innes, & Logan, dated 21st and 31st January respectively. The defender called and saw me on the 21st, and wanted me to make interest with Mackenzie, Innes, & Logan to let him remain in the premises, and I said I would endeavour to do so. On the 31st he called again to ascertain if I had managed to do anything. I had seen Mr Macandrew, of Mackenzie, Innes,&Logan—the gentleman whom I was always in the habit of seeing—and he had told me there was no hope of the defender being allowed to remain while the arrears of rent were not cleared off. I told that to defender, and he said he was quite prepared to clear off the arrears, that he was just waiting for a statement from Mr Douglas, who had charge of the sequestration for rent, to clear them off. I accordingly wrote the letter of 31st January to Messrs Mackenzie, Innes, & Logan. I don't remember of anything more passing with defender at that time.”

Upon 11th December 1889 the Sheriff—Substitute pronounced this judgment:— “… Finds (3) that the defender did not give the pursuers, or anyone acting on their behalf, explicit notice forty days prior to Whitsunday 1889 that he (the defender) would not continue in the occupation of the premises subsequent to that date; (4) that the defender having become tenant of other premises, quitted the said shop in Frederick Street on or about the 28th of May 1889: Finds in point of law that in the absence of due notice upon either side tacit relocation of the said shop No. 27 Frederick Street must be held to have taken place from Whitsunday 1889–90: Therefore repels the defences, and decerns and ordains the defender to make payment to the pursuers of the sum of £60 sterling, being the half-year's rent of said shop which fell due at the term of Martinmas 1889, with interest thereon at the rate of £5 per centum per annum from that date until payment: Quoad ultra continues the cause as regards the half-year's rent to become due at Whitsunday 1890, &c.

“ Note.—… The only question in the case (if it be a question) is, whether the defender prevented tacit relocation by giving the pursuer due notice prior to the term of Whitsunday last? Now, Professor Bell says (Prin. sec. 1271) that no particular form of renunciation on the part of a tenant is required further than that it must contain a clear and explicit notice to the right party forty days before Whitsunday. Mr R. S. Patterson, the house-agent, says that he got

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no such notice at either of his interviews with the defender on the 21st and 31st of January, and it is not alleged that any written notice was given. Assuming that verbal intimation might be sufficient, the defender himself admits that his purpose on calling on Mr Patterson was not to announce his intention of leaving the premises, but to try and effect an arrangement by which he might continue tenant after Whitsunday; but he says—‘I cannot swear that I told him then that the rent was too high, and that I did not think of remaining, but I had been talking about the rent before and grumbling at it.’ It is true he adds—‘I intimated that my lease was out in 1889, and that I would be done with it in May;’ but he does not explain in what terms he conveyed this information to Mr Patterson, and it is quite plain that no distinct and unequivocal notice was given even verbally of his intention to leave the premises.”

The defender appealed, and argued—1. Sufficient notice was given to Patterson in January, and the knowledge was brought home to the landlord by the letters of 21st and 31st January— Sutherland's Trustees v. Miller's Trustees, October 19, 1888, 16 R. 10; M'Intyres v. M'Donald, &c., December 11, 1829, 8 S. 237. 2. He was bound under his lease to leave the premises without any warning from the landlord. As he had heard nothing from the landlord with regard to his leaving, the lease made it imperative on him to leave the premises at the expiration of the lease— Paxton v. Slack, May 26, 1803, Hume, 568. If he had not removed when he did he would have been at the mercy of his landlord, who might have turned him out at any time, and have claimed violent profits. This was a particularly hard case if the contention of the pursuer was to prevail, because the landlord could turn his tenant out of the premises without giving him any warning, while the tenant had no corresponding advantage, but must give warning if he wished to leave — Houldsworth v. Brand's Trustees, May 18, 1875, 2 R. 683, and January 8, 1876, 3 R. 305.

The respondent argued — No sufficient intimation had been given. The clause of removal in the lease was in the landlord's favour, but there was no hardship, for under the Act 16 and 17 Vict. cap. 80, secs. 30 and 31, he was bound to give forty days' notice to his tenant before he could proceed upon the clause.

At advising—