Scottish Court of Session Decisions

This action was raised by William Henry R.B. Sivright, proprietor of the estate of Ardincaple, in the county of Argyll, against George Lightbourne, tenant of the farm of Barnafeochaig on said estate, for payment of £45 as the balance of rent due by the latter for the year ending Whitsunday 1888.

It was averred in statement of facts for the defender—“(Stat. 2) The defender has been in possession of said farm and offices for a number of years, under a lease granted by the pursuer's predecessors (the former proprietors of the estate of Ardincaple). The said lease expired at Whitsunday 1887. At the commencement of said lease the dwelling-house and offices attached to the farm were not, as they should have been, put into a habitable and proper tenantable state of repair, but remained throughout the whole currency thereof in a grossly dilapidated and untenantable condition—this condition arising from natural decay and old age. (Stat. 3) During the currency of said lease the defender repeatedly complained to the factors or managers of the pursuer and his predecessors as to the state of the house and farm buildings, but in particular, at each rent collection, he made these complaints to Brown, the factor on the estate, and requested that the house and offices should be put into a proper tenantable condition, and at the said rent collections the defender also reserved all his claims for damages. (Stat. 5) During the currency of the said lease the defender and his family have suffered severely in their health, so much so, that the insanitary condition of the dwelling-house caused an illness to one of his family from which he died. In addition, the defender has suffered large losses on account of his farm stock having greatly deteriorated in value, so much so, that not only they could not be disposed of except at a great loss, but the defender, owing to their poor condition, could not work and cultivate his said farm to a profit from the dilapidated condition of the farm buildings. (Stat. 7) During the year from Whitsunday 1886 to Whitsunday 1887 negotiations were entered into for a new lease, and in the course of these negotiations the defender wrote to Messrs Tods, Murray, & Jamieson, W.S. Edinburgh, the pursuer's agents, offering a rent of £45 per annum if the house, byre, and

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stirkhouse were roofed and slated of new, and the dwelling-house otherwise made tenantable. The agents did not reply directly, but did so to Hamilton, the gamekeeper on the estate, who called on defender and read a letter to him to the effect that as the expense of putting the houses in repair would be so very great the rent would require to be £55 instead of £45. In reply to this the defender, by holograph letter dated 18th April 1887, made an offer for the said farm and offices of Barnafeochaig. The said offer was for a rent of £50 per annum, and was made under the express condition that the dwelling-house, byre, and stirkhouse should be slated and otherwise put into a thorough and tenantable state of repair. A few days after this offer had been made, the gamekeeper, the said Hamilton, again called on the defender and read a letter he had received from the said Messrs Tods, Murray, & Jamieson saying that the defender's offer had been accepted, and he arranged with him (the defender) that the lease should be for seven years with a break at the end of three. Owing to these negotiations and the said arrangement having been come to, the defender departed from his intention of giving the requisite statutory notice of his intention to leave the said farm. (Stat. 9) During the year for which the said rent now sued for is said to be due, the dwelling-house and farm offices on said farm have not only remained in the grossly dilapidated, insanitary, and untenantable state of repair in which they were during the currency of the former lease, but have become more dangerous and unfit for the purposes of the farm. (Stat. 12) The whole amount of the rent sued for will not compensate the defender for the loss, injury, and damage he has sustained.”

The pursuer denied that he had come under the obligation alleged by the defender to put the buildings in repair, and averred that the defender had been distinctly told that the pursuer would not expend any money on the buildings unless the defender paid up his arrears of rent and found caution for future payment, which he had not done. The pursuer also denied that any final arrangement by way of lease had been come to with the defender who had merely been allowed to keep on the farm at the reduced rent of £50 per annum.

The defender pleaded—“(1) The defender not having obtained possession of the premises in a good and tenantable state of repair is not due the sum sued for, and is entitled to decree of absolvitor with expenses. (2) The pursuer having failed to implement the obligation undertaken by him in said lease is liable in damages, and the defender is entitled to set off the amount thereof against the claim for the said rent.”

On 25th March 1889 the Sheriff-Substitute ( Maclachlan) pronounced this interlocutor:—“Finds that the defender was tenant of the farm of Barnafeochaig, on the pursuer's property of Ardincaple, for some years under a lease which terminated at Whitsunday 1887, and after some correspondence and verbal negotiation between the parties the rent was reduced to £50 a-year, but no new lease was executed, and the defender remained on in the said farm at the reduced rent: Finds that the rent due at Whitsunday and Martinmas 1888 has not been paid with the exception of £5 paid to account on 6th June 1888, leaving a balance of £45 sterling still due to the pursuer: Finds that the defender's averments are not relevant to infer a valid claim for abatement or set-off to the pursuer's claim for rent: Therefore repels the defences; grants decree as concluded for; finds the defender liable in expenses, &c.

“ Note.—The question to be now decided is, whether the defender should be allowed a proof of his averments as to the state of the buildings on the farm occupied by him so as to constitute a relevant ground for withholding the rent due to the landlord. His lease terminated at Whitsunday 1887, but he avers that by rei interventus following upon written communications and verbal arrangements a new lease of seven years' duration was constituted between him and the pursuer. There was, however, no written lease or missives of lease, and it is settled that a verbal lease for a term of years is not binding even for one year unless possession has followed, in which case it is obligatory for one year—Rankine on Leases, p. 105. The possession must be unequivocally referable to the prior agreement—Rankine, p. 114; but here the defender was already in possession, and from his own statements it rather appears that he remained on in the farm because he had not given sufficient notice of removal under the Agricultural Holdings Act 1883, to prevent tacit relocation from taking place, and the only result of the negotiations is, as admitted by the pursuer, that the rent was reduced to £50 a-year. The defender's claim therefore for an abatement, if referable to any obligation by the landlord in the new lease which is averred to be constituted by the circumstances narrated in Answer 2 of the defences, is repelled on the ground that there is no such lease, and if referable to the original lease there is sufficient authority in the recent case of Stewart v. Campbell and Others, 18th January 1889, 26 S.L.R. 226, for holding that it is too late now to complain of not having obtained possession of the premises in a good and tenantable state of repair.”

The defender appealed to the Sheriff ( Forbes Irvine), who on 19th July 1889 pronounced the following interlocutor:—“Recals the said interlocutor: Finds that the defender's averments of rei interventus, even if proved, are not sufficient to warrant the conclusion that he possesses under a lease of more than a year's duration, and therefore in the absence of any written lease he must be regarded as holding simply from year to year; and to this extent repels the pleas for the defender; but before further answer allows to him a proof of his claim for damages as against the landlord, and to the pursuer a conjunct probation; remits to the Sheriff-Substitute to take

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said proof, and thereafter to proceed with the cause as accords; meantime reserves the question of expenses, and decerns.

“ Note.—The defender concedes that without the aid of rei interventus he cannot hope to make out that he holds under a lease for a term of years. It is well settled, however, as stated by Professor Rankine—‘Leases,’ p. 113—that ‘where great cost is incurred by operations carried on under the eye of one having a right to stop them, or where, under the eye and with the knowledge of him who has the adverse right, something is allowed to be done which manifestly cannot be undone, the law will presume an agreement or conventional permission as a fair ground of right.’ Also per Lord Chancellor Chelmsford in Wark v. Bargaddie Coal Company, 1859, 3 Macq. 467.

Here, for instance, if the defender had been able to aver that he had put up the farm-buildings, or had made large additions to them, or had executed extensive improvements which could hardly have been expected of a person holding by the year, the Sheriff would have had no hesitation in allowing him a proof of such rei interventus. In so far, however, as the Sheriff can see, the only rei interventus alleged is to the effect that the defender has had possession since the date of the informal missives on which he founds. It need scarcely be said that such possession is quite as consistent with a holding from year to year as with a holding for a term of years. The Sheriff is therefore unable to allow to the defender the proof which he asks of a seven years' lease.

With regard to the claim for damages there is no doubt considerable difficulty; but, on the whole, keeping in view (1) that there does seem to be a tendency in the courts of law to relax the old rule, and (2) that the rents sued for have been consigned, so that the pursuer runs no risk of losing them, and (3) that it is always desirable to avoid a ‘cumulation of actions,’ the Sheriff has felt that he might allow a proof, and has accordingly done so.”

The pursuer appealed to the Court of Session, and argued—The only kind of case in which a claim of abatement was allowed to be pleaded in answer to a demand for rent was when it was alleged that the tenant had not received full possession of the subjects let under a lease. This was not a case of a new tenant entering on a farm. The old tenant was merely allowed to sit on at a reduced rent while negotiations for a final settlement were going on. No agreement was come to, and the constitution of the obligation founded on by the defender was thus in dispute. The defence in the present case accordingly fell under the usual rule that an illiquid claim of damages could not be pleaded as a defence to a liquid claim for rent— Munro v. M'Geochs, November 15, 1888, 16 R. 93; Stewart v. Campbell, January 19, 1889, 16 R. 346; Drybrough v. Drybrough, May 21, 1874, 1 R. 909; Humphrey v. Mackay, February 23, 1883, 10 R. 647.

Argued for the defender—A claim for abatement of rent might be pleaded in defence to an action for rent where there was a violation by the lessor of an express and material condition of the lease, even though the tenant might have got full possession of the subjects let— Davie v. Stark, July 18, 1876, 3 R. 1114; Gordons v. Suttie, July 13, 1826, 4 Murray 86; Munro v. M'Geochs, and Stewart v. Campbells supra.

At advising—