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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnstone v. Hughans [1894] ScotLR 31_655 (22 May 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0655.html
Cite as: [1894] SLR 31_655, [1894] ScotLR 31_655
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SCOTTISH_SLR_Court_of_Session
Page: 655↓
Court of Session Inner House First Division.
[Sheriff of Kirkcudbright.
v.
Landlord and Tenant
Process — Appeal — Mode of Trial — Judicature Act1825 (6 Geo. IV. c.120), sec.40.
Facts:
In the lease of a farm for nineteen years the landlord undertook to execute certain repairs and improvements upon the farm buildings, and the tenant undertook to maintain the buildings in good and sufficient repair. Held that the obligation in the lease only imposed upon the tenant the duty of making ordinary repairs, and that the landlord was bound to restore buildings which required to be renewed during the currency of the lease.
In 1894 a tenant who had entered upon a farm in 1881 under a lease for nineteen years, brought an action against his landlord for damage which he alleged he had sustained since 1888, owing to the landlord's failure to renew certain of the farm buildings which had become dilapidated. The pursuer averred that at the half-yearly rent collection in the summer of 1887, and again at every succeeding rent collection, as well as on other occasions, he had intimated the state of the buildings to the landlord's factor, and called upon him to have them put in tenantable order, that the factor had frequently promised to have that done but had delayed or neglected to do it, and that accordingly the pursuer had written to the factor and the landlord making the same demand. The tenant did not dispute that he had paid his rent in full every half-year.
Held, on the above averments, that the tenant had not lost his right to insist in his claim of damages.
Broadwood v. Hunter, February 2, 1853, 17 D. 340, and Elmslie v. Young's Trustees, March 16, 1894, 31 S.L.R. 559, distinguished.
The tenant of a farm sued his landlord in the Sheriff Court for payment of £100, as the amount of damage sustained by him owing to the landlord's failure to restore certain buildings on the farm, which had fallen into an untenantable condition. The defender appealed and moved that the case should be sent to trial by jury. The pursuer moved that the case should be remitted to the Sheriff for proof.
The Court sent the case to trial by jury, in respect that it was of the kind appropriated to jury trial, that the smallness of the claim was not of itself a sufficient reason for refusing that mode of trial, and that there were no special circumstances rendering the case unsuited for trial in that way.
In 1881 George Johnstone became tenant of the farm of Ringour on the estate of Airds, the property of Mrs Hughan, under a nineteen years lease.
The proprietrix and her husband bound themselves in the lease, inter alia, “to put a new floor in the present barn, with two rows of tiles round the sides of the walls, to raise the walls of the present stable to the height of the dwelling-house, and stall the same for four horses—the tenant carting the materials … also the first parties shall put the present cart-shed into repair, … the fences and gates on the farm to be put into tenantable condition, and to be kept up and maintained by the tenant in like condition during the currency of this lease.”
The following obligation was laid on the tenant with regard to the maintenance of the houses and fences on the farm—“And with regard to the houses and fences on the premises hereby let, the said George Johnstone binds and obliges himself and his foresaids to maintain them in good and sufficient repair during the currency of this lease; and the said George Johnstone binds and obliges himself and his foresaids to leave the houses and fences in good and sufficient repair at the expiration of this lease, or at their removal therefrom.”
In 1892 Johnstone raised an action in the Sheriff Court, Kirkcudbright, against Mr and Mrs Hughan, to have them ordained to execute such repairs on the granary and piggeries on his farm, as might be found to be necessary to put them in a tenantable condition. After certain procedure, the Sheriff-Substitute ( Lyell) remitted to a man of skill to report on the state of the buildings in question, and the report having been given in, Mr and Mrs Hughan agreed to execute the work specified therein, and this they afterwards did.
Johnstone thereafter raised a second action against Mr and Mrs Hughan in the
Page: 656↓
Sheriff Court, in which he concluded for payment of £100 as the amount of damage which he had suffered since the year 1888, owing to the defenders having failed to put the granary and piggeries in repair when called upon to do so. The pursuer averred—“(Cond. 3) That by about the end of the year 1887, on account of decay occasioned by the lapse of time, and not through any undue negligence on the part of the pursuer, the said granary and pig-houses had become unfit to be repaired, and required to be renewed. (Cond. 4) In consequence of said decay, the granary and pig-houses had by the end of the year 1887 become utterly unfit for the purposes of the farm … (Cond. 5) The pursuer frequently called upon the defenders to put said office-houses into tenantable condition. At the half-yearly rent collection in the summer of 1887, and again at every succeeding rent collection, as well as on other occasions, he intimated to the defenders' factor, Mr William Milroy, solicitor, Kirkcudbright, the state of the said houses, and called upon him to have them put into tenantable order. The said factor frequently promised to have this done, but delayed or neglected to do so, and the pursuer accordingly wrote to the said factor on 9th January 1890, and to the defender, the said Major Henry Houghton Hughan, on 11th January 1890, calling upon them to have the necessary work done.”
The defenders pleaded, inter alia—“(4) The pursuer being by the obligations in his lease bound to keep and maintain the granary and pig-houses in question, the grounds of action are untenable.”
On 27th February 1894 the Sheriff-Substitute allowed parties, before answer, a proof of their averments.
“ Note.—This action of damages is a corrollary to a previous litigation between the same parties about the repairs of the same subjects on the same farm, and I have once more listened to the same arguments and have come to the same conclusion, viz., that it having been judicially ascertained that the untenantable condition of the granary and pig-houses on the farm of Ringour was due at the date of the previous action to lapse of time, tear and wear, and not to neglect of the part of the tenant, it was by the common law of Scotland the duty of the landlord to restore these buildings—Bell on Leases, i. 321; Napier v. Ferrie, 9 D. 1354; Rankine on Leases (1st ed.), p. 223, and the cases there quoted. The Sheriff was of the same opinion when the case was appealed, and accordingly the landlord did restore the subjects in question. Now the tenant brings this action, claiming damages on the ground that the landlord neglected this, his legal obligation, for the space of five years, in spite of repeated remonstrances, and that during all that time he (the tenant) was thus deprived of the beneficial use of these subjects. I am bound to say that I consider that a perfectly relevant averment, which if proved will entitle the tenant to damages, though I could have wished that he had specified on record with more clearness and perspicuity the actual damage which he alleges he has suffered.”
The defenders reclaimed, and argued—(1) The pursuer was barred by the terms of the lease from insisting in his claim of damages. The landlord had undertaken to make certain specific repairs, and the tenant on his part had on these conditions accepted the building as in a satisfactory state, and had undertaken to do what was necessary to keep them in tenantable repair during the currency of the lease. The principle laid down in Mosman and Napier did not apply in such a case. (2) Assuming that the pursuer had a good claim of damage if he had made it time-cusly, he had lost his right to make such a claim, for on his own showing he had paid his rent yearly without reduction or express reservation— Broadwood v. Hunter, February 2, 1853, 17 D. 340; Elmslie v. Young's Trustees, March 16, 1894, 31 S.L.R. 559. The pursuer's averments were therefore irrelevant, and the action should be dismissed.
Argued for the pursuer—(1) The meaning of the clause in the lease was that the tenant was to keep the existing buildings in repair. It did not impose on the tenant the obligation of restoring buildings which had become dilapidated from the decay of time, and which required extraordinary repairs— Mosman v. Brackett, May 19, 1810, Hume's Dec. 850; Napier v. Ferrier, June 24, 1847, 9 D. 1354. (2) Broadwood and Elmslie were distinguishable. In both of these cases the tenant had confined himself to grumbling. Here the pursuer averred that he had made specific demand upon the landlord, and that the landlord's factor had promised that it would be complied with. The ground of complaint was also different in the present case. In Broadwood the tenant complained of damage by rabbits, and in Elmslie of damage owing to the want of heather burning and the insufficiency of the fences. In both these cases the landlord's defence might have been prejudiced by the lapse of time, but that objection did not apply with equal force to the present case.
At advising—
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As regards the argument that the tenant has discharged his claim for damages, the case does not, I think, fall within the principle of the cases of Broadwood v. Hunter and Elmslie v. Young's Trustees. The tenant here says that he did make specific claims for certain operations to be carried out, and that his claims were met by specific promises by the factor that what he required would be done. That averment supplies what was absent in the cases I have referred to, and I cannot think that the tenant has so conducted himself as to make the landlord believe that he had departed from his claim. No doubt the averments as to the damage are rather general and colourless, but I am not prepared to say that they are so insufficient as to disentitle the pursuer from going to trial.
It is, however, further said that the tenant is not entitled to insist in the claim, in respect that when he paid his rent in 1887 and subsequent years, he did not intimate and insist in a claim of damages. That plea is rested on the cases of Broadwood v. Hunter and Elmslie v. Young's Trustees. The plea amounts to a plea of mora, and always refers us to the particular circumstances in which it is pleaded. Broadwood was the case of a periodical claim for damage done to a farm by rabbits, and it must be observed that from the nature of the claim, if it is not made at once, the defender is not in a position to prove his defence. The case of Elmslie was a claim of damages for insufficient heather burning, and there it was proposed to go back for a number of years before the claim was made. Then, again, if the case had been held to be relevant, there would have been a clear injustice against the landlord, as he could not have proved all the facts as to the burning, the state of the weather in each year, and so on, necessary for his defence. That, as I understand it, is the principle of these cases, but the case here is not of that kind. In 1887 notice was given to the factor of the state in which the buildings were, and he was then and subsequently called upon to put them in repair. The factor promised to do so, but did not fulfil his promise. That being so, I do not think that the case is within the rule of the cases I have referred to.
Parties were then heard as to the mode in which the case should be tried.
Argued for the defenders—The case was of the kind appropriated to jury trial, and was fitted for trial in that way. It should therefore be so tried. In Bain's case there was a very special reason for sending the case back to the Sheriff, and the action was not one appropriated for jury trial.
Argued for the pursuer—The action being for breach of contract, the Court had a freeer hand than if it had been an action on delict or quasi-delict— Willison v. Petherbridge, July 15, 1893, 20 R. 976. That being so, looking to the nature and small amount of the claim, the most expedient course was to remit the case to the Sheriff for trial— Bethune v. Denham, March 20, 1886, 13 R. 882; Bain v. Heritors of Duthil, February 13, 1894, 31 S.L.R. 427; Nicol v. Picken, January 24, 1893, 20 R. 288.
At advising—
Page: 658↓
The Court approved of an issue and sent the case to jury trial.
Counsel for the Pursuer— Wilson. Agent— David Crawford, S.S.C.
Counsel for the Defenders— H. Johnston— Macfarlane. Agents— Mackenzie & Kermack, W.S.