Scottish Court of Session Decisions

By lease dated in September 1867 Lieutenant-General James Clerk Rattray of Craighall, let the farm of Thorn, in the county of Perth, to James Leslie for 19 years from Martinmas 1871, at the yearly rent of £650.

In 1886 General Rattray's agents wrote to Leslie informing him that General Rattray had decided to allow him a reduction of £100 on his rent for crop and year 1885, and a similar intimation was again made to Leslie in 1887 with regard to the rent for the crop of 1886.

In 1890 Leslie's estates were sequestrated, and John Graham was appointed trustee in the sequestration. General Rattray lodged two claims in the sequestration. He claimed (1) to rank for the balance still due for crop 1888 of the full rent of £650 stipulated in the lease, and (2) to rank preferably for the full amount of the rent as stipulated in the lease for crop 1889, for payment and in security of which rent the Sheriff-Substitute of Perth had sequestrated the tenant's stock and crop on 6th December 1889.

It appeared from a letter from the Assessor of Perth, written in reply to a letter from the trustee, “that the rent of Thorn farm was returned reduced in May 1887 for year 1887–88, and the reduced rent was continued for 1888–89 and 1889–90.”

On 15th April 1892 the trustee issued the following deliverance—“1. Preferable claim for rent—In respect that an abatement of £100 per annum was from 1886 allowed on the rent mentioned in the lease, and that the reduced rent of £550 was returned to the valuation roll on behalf of the landlord and by his authority as the rent of the farm, the trustee rejects this claim to the extent of £100 and admits the balance. 2. Claim for rent—For the reason above stated the trustee rejects the claim to the extent of £100.”

Against this deliverance General Rattray appealed to the Sheriff of Perthshire, and on 6th May 1892 the Sheriff-Substitute ( Grahame) dismissed the appeal and adhered to the deliverance of the trustee.

General Rattray appealed to the Court of Session, and argued—To justify his decision, the trustee was bound to show that the appellant had come under an obligation to his tenant to grant the abatement of rent, and such an alteration on the written contract of lease could only be proved by the writ or oath of the appellant. The valuation roll was made up entirely for purposes of assessment, and the fact that the reduced rent had been returned for the purposes of the valuation roll was not sufficient proof that the landlord had come under any obligation to grant the abatement of £100. He might have been ready to accept the reduced rent, though not under any obligation to do so— Menzies v. Assessor for County of Perth, June 19, 1889, 16 R. 805; Emslie v. Duff, July 2, 1865, 3 Macph. 854.

Argued for the respondent—It was possible to prove that parties had agreed to modify a written contract by proving that they had transacted with one another on the footing that the contract had been so modified— Baillie v. Fraser, June 14, 1853, 15 D. 747. There was here sufficient proof that the landlord had agreed to grant the reduction of rent. If, however, the Court thought the proof insufficient, the case should be remitted to the trustee for further inquiry.

At advising—