Scottish Court of Session Decisions

Archibald William Dickson, proprietor of Hassendeanburn, Roxburghshire, brought an action against Robert Bell, tenant of the farm of Horsleyhill on that estate, for

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declarator (1) that the defender was tenant of the farm under a lease for 15 years dated in 1891 at a rent of £400; (2) that the said lease was still valid and subsisting and binding upon the pursuer and the defender; and (3) that the defender was bound to pay the rent of £400 specified in the lease, or alternatively that the defender had held and possessed as a yearly tenant the said lands since Whitsunday 1896 at an annual rent of £400, and in any event to ordain the defender to pay the pursuer £641, 10s. 11d.

The defender pleaded, inter alia—“The pursuer having himself agreed to the defender continuing as tenant at the rent of £290, and said agreement having been acted on, this action cannot be maintained.”

A proof was led before the Lord Ordinary ( Kincairney). The circumstances proved are fully set forth in the opinion of the Lord Ordinary and the notes thereto.

On 14th June the Lord Ordinary pronounced the following interlocutor:—“Finds (1) that it has been proved by the writ of Messrs Scott-Moncrieff & Trail, the pursuer's agents, written with the pursuer's knowledge and authority, that the pursuer agreed to a reduction of the rent under the defender's lease to £290 per annum; (2) that on that footing the sum due to the pursuer was £17, 19s. 11d., and that it is admitted at the bar that subsequent to the date thereof a payment was made which more than exhausts said balance: Therefore assoilzies the defender from the conclusions of the summons, and decerns.”

Note.—“This is an action by the proprietor of the estate of Hassendeanburn, in the county of Roxburgh, against the tenant of the farm of Horsleyhill on that estate, for declarator that the defender is tenant of the farm under a lease for fifteen years, dated in 1891, at a rent of £400; and it concludes for payment of £641, 10s. 1d., which is made up of two and a-half years' rent since Martinmas 1895, with interest, deducting £200 paid to account on 27th January 1897. £390 has since been paid to account under interlocutor of the Court. There is an alternative conclusion for declarator that the defender has possessed the farm as a yearly tenant at a rent of £400; but nothing was said in the debate about this conclusion.

The defence is that the rent was reduced from £400 to £290, and the question is, whether this reduction of the rent has been proved by competent evidence. The defender does not maintain that this agreement to reduce the rent can be proved by parole. He admits that it cannot be so proved, and he does not say that there is any actual writing by the pursuer on which he can found. His case is that he can prove an agreement to reduce the rent by the writ of the pursuer's agents, and that he can prove by parole that his agents' writ was authorised by the pursuer. I think that it is competent for the defender to prove his case in that way, and that if he makes out these two points he succeeds. Whether he has succeeded is to my mind a very narrow question indeed, and I have not reached the conclusion that my judgment should be for the defender without considerable hesitation.

The circumstances are very peculiar and unusual. The pursuer's predecessor in the lands of Hassendeanburn and other lands was Colonel Archibald Dickson, and in his time the defender gave notice that he meant to renounce his lease at Whitsunday 1896, in virtue of a clause in the lease which provided for a break at that term. The tenant's right to avail himself of this provision was, however, coupled with the proviso that he should pay or find security tor all rents due or to become due.

At Whitsunday 1895 he was largely in arrear and had found no security. After the defender had given his notice, negotiations took place with a view to a reduction of the rent, pending which Colonel Archibald Dickson died on 9th April 1895, that is, before the date when the tenant's notice as to the break could have received effect.

Colonel Archibald Dickson left a settlement disposing of his estate so far as unentailed. But the estate of Hassendeanburn was entailed, and it appeared on inquiry that the present pursuer, if alive, was the next heir of entail; and if he were dead, that his daughter Catherine Isobel Dickson was the next heir; and she and her mother instructed Messrs Scott-Moncrieff & Trail to advise and act for her in the matter, and this was the manner in which the connection of these gentlemen with this property originated. The pursuer had, it appeared, gone abroad a considerable time before, and had not communicated with his wife and daughter or been heard of; and in these circumstances a petition was presented under the Presumption of Life Limitation Act, in which a judgment was obtained on 7th December 1895, finding that the pursuer must be presumed to be dead.

Not long afterwards, however, communication sreached Scott-Moncrieff & Trail tending to show that the pursuer was alive, and it seems that Mr D. Scott-Moncrieff, having had occasion to be in Montreal in the autumn of 1896, met the pursuer there by appointment. The pursuer afterwards returned to this country, where his identity with the heir of entail of Hassendeanburn was established, and his title was made up by Scott-Moncrieff & Trail as his agents, and he took possession of the estate. He came to this country in or about November 1896. Now, during this period between the death of Colonel Archibald Dickson in April 1895, and the pursuer's return to Scotland in November 1896, communications had been passing in regard to the reduction of the defender's rent, between the defender and his agents on the one hand, and Scott-Moncrieff & Trail as acting for the heir of entail, whoever he might be, and for Miss Dickson after the judgment in the petition under the Presumption of Life Limitation Act had been pronounced. The defender meanwhile continued in possession

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of the farm, and did not avail himself of the break in the lease, supposing he had been in a position to do so, which it rather appears he never was, owing to the heavy arrears of rent which he always owed. Matters had gone so far that at the time when Miss Dickson was supposed to be heiress of entail a draft minute as between her and the defender was prepared providing for a reduction to £290. But that draft minute also provided that a relative of the defender, Mr John Turnbull, a neighbouring farmer, should be cautioner for the rent. On this point there had been a misunderstanding, because Mr Turnbull declined to undertake that responsibility, and the draft minute was never extended. Had Mr Turnbull then agreed to become cautioner for the rent. I do not doubt that a formal minute of agreement reducing the rent to £290 would have been completed by Miss Dickson on the one part, and the defender on the other; and if that had been so, the question would have arisen, whether she, never having been infeft, was in a position to effect an alteration of the lease, or whether the pursuer would be bound by her acts. But these questions do not arise, because that was never done, and the condition that the defender should find security was not then waived, and I do not think it can be affirmed that the reduction was agreed to by Miss Dickson or Scott-Moncrieff & Trail as her agents. I find that in subsequent letters this caution was insisted on by Scott-Moncrieff & Trail, and when the pursuer came to Scotland and took up the estate, there was, in my opinion, no agreement to reduce the rent below the rent specified in the lease, by which he could have been bound. When he succeeded, it appears to me, that the original lease was still subsisting and unaffected, and he might, had he chosen, have refused to consent to any reduction.

A letter dated 24th November 1896 by Scott-Moncrieff & Trail to Purdom & Sons, the defender's agents, is of some importance. ^* In that letter Scott-Moncrieff & Trail ask payment from the defender ‘of at least a year's rental £290 without prejudice.’ The letter then goes on to deal with the question of security, and submits a modified proposal. Now, it seems to me that this letter clearly shows that there was an intention to reduce the rent to £290, but I consider that it does not show that an agreement to that effect had been completed, but rather shows that such an agreement had not been completed, although it may be that it was on the eve of completion. Now, at the date of this letter the pursuer was in Scotland and in Edinburgh, and the letter was written by Scott-Moncrieff & Trail as his agents. The pursuer appears then to have been an almost daily visitor at the office of Scott Moncrieff & Trail.

So far as I can gather, the pursuer remained in Edinburgh until the middle of January, when he went to Hassendeanburn and took up his residence in the mansion-house there. Messrs Scott-Moncrieff & Trail continued to be his agents until 16th March 1897, when the agency was withdrawn and transferred to Messrs Haddon & Turnbull, writers, Hawick. It seems certain that no agreement to reduce the rent was made or contemplated after this date. Hence, if there was an agreement at all to that effect, it must have been made between 24th November and 16th March; and seeing that no letter of the pursuer is founded on, it must have been effected by Scott-Moncrieff & Trail within that period.

There are then two questions—(1) Is it proved by the writ of Scott-Moncrieff & Trail that they granted this reduction? and (2) If that be proved, is it proved that they did so with the pursuer's knowledge and authority?

The first question depends almost entirely on three letters?—first a letter of 22nd December by Scott-Moncrieff Trail to the defender, in which they complain that he had paid no rent since Whitsunday 1895, and proceed, ‘This is not what was expected when it was agreed to allow you to remain on the farm at a reduced rent.’ This letter speaks of an agreement to reduce the rent as a concluded matter, and when it is considered that the only reduced rent which had been brought into question, as appears from other letters, was £290, it may, I think, be read as a statement by Scott-Moncrieff & Trail that that reduction had been agreed to. No mention is made here about security, and I rather think that it appears that the idea of securing Mr Turnbull as a cautioner had been given up.

On 10th January Scott-Moncrieff & Trail wrote the defender pressing for a

_________________ Footnote _________________

* This letter was in the following terms—“Mr Bell has made no payments to Messrs Tait, so far as appears from their accounts rendered to us, except the half-year's rent due Marts. 1895, paid in April last, and the cheque for which was stopped and £100 paid on 9th September last, to account of the rent due prior to the late Colonel Dickson's death. We must ask that payment be made to us at once of at least a year's rent at £290 without prejudice. With regard to the lease, it has not yet been signed. We regret that there should have been any misunderstanding as to the proposed modification of the rent. Messrs Tait assured us that Mr Turnbull promised to back' Mr Bell, and we are quite clear that at our meeting with Mr Bell here, about a year ago, he stated to us that Mr Turnbull was to be cautioner for him for payment of the rent throughout the lease. If Mr Turnbull declines to be cautioner for the whole period of the lease yet to run, we shall be glad to know if he will be cautioner for the last year's rent that may be payable under the lease.” It was followed by another letter dated 15th December 1896, in which Messrs Scott-Moncrieff & Trail wrote—“With reference to our letter of 24th ulto. we shall now be glad to have a remittance on account of the rent due by Mr Bell.”

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payment, and on 22nd January he remitted a sum of £200 to account. That I think was a payment made on the footing that the rent had been reduced. But no doubt it was due in any event.

A second important letter from Scott-Moncrieff & Trail is dated 23rd January, ^† They acknowledge receipt of the £200, and enclose receipt (which has not been produced), and they add, ‘We shall be glad to receive a remittance of £90 of the rent to Whitsunday last’ (1896). Now, that £90 was a balance of the £290 of rent. and this letter seems a written admission by the landlord's agents that that was the whole rent due from Whitsunday 1895 to Whitsunday 1896. The only other letter which it seems necessary to notice is one dated 6th March 1897, in which Scott-Moncrieff & Trail, writing to the defender, give the note of rents due as being—

‘Balance of half-year's rent to Whitsunday 1890,	£90
Half-year's rent to Martinmas,	145
	£235

Now, it appears to me that these letters prove scripto of Scott-Moncrieff & Trail, and very explicitly, that they had agreed to a reduction of the rent, and it appears to me that they import a reduction of the rent during what remained of the original lease, and I consider that they import a waiver of the previous demand for security. Had they been in the hand writing of the pursuer I incline to think that he could not have been heard to dispute this conclusion. It is true that what prevented the completion of the transaction sooner was the want of security, and it is also true that there seems to be no written waiver of that condition. But still I think that if the pursuer had written these letters he could not have drawn back on the ground that the condition of finding security had not been expressly waived. No doubt it is not altogether satisfactory to have to decide this question on these letters. It would have been much more satisfactory had there been a formal minute. But it is to be considered that the agency of Scott-Moncreiff & Trail was cut short without warning, which may account for the want of a minute. But on the whole it appears to me that the letters which I have referred to solve the first of the two foregoing questions in favour of the defender.

The next point is, Were these letters authorised by the pursuer? Now, this is a point for parole evidence. It appears to be clearly proved by Mr D. Scott-Moncrieff and by the witnesses Paterson and Cosens that the pursuer when in Edinburgh manifested, as was to be expected, the greatest possible interest in his new estate; that he was in the office almost every day making inquiries about it. It is very difficult to suppose that the letters to which I have referred were written without his knowledge. Mr D. Scott-Moncrieff speaks most definitely about the letter of 22nd December as having been written with the pursuer's knowledge and by his instructions, and Paterson, who had perhaps most to do with the pursuer's business, extends that evidence to all these letters. Of course Mr Scott-Moncrieff believed that he had the pursuer's authority, and it appears to be sufficiently proved that belief was warranted. On the question of evidence of authority there is a document of a different kind which is of some importance. It is a memorial sent to Professor Rankine for his opinion on the question whether the annuity payable to the widow of the last heir of entail, Colonel Archibald Dickson, was to be calculated on the footing that the rent of Horsleyhill was £400 or £290, and in that memorial there occurs the following statement:—‘It may be mentioned, however, that in view of the valuation of the farm by Mr Clay, and that Mr Bell was to be assisted by his brother-in-law, the memorialist's agents agreed to allow him to continue tenant of the farm at the reduced rent of £290 per annum.’ It is, I think, proved that the pursuer was aware of the terms of this memorial. I do not suggest that the memorial is competent proof of the alleged alteration of the lease, but it is proof, I think, of the pursuer's knowledge that his agents had reduced the rent, and of his sanction of their act. It is true that the proposed assistance of Mr Turnbull is mentioned, but it is not said that that assistance was to be an essential condition of the reduction. The contrary seems implied by the mere submission to counsel of the question, which could not have arisen at all unless the reduction of the rent had been agreed on; and besides, the subsequent letters, as I have suggested, may and should be held to show that this condition had been waived.

I have not found the pursuer's evidence on this point at all satisfactory. He is now doubtful and then he is certain. I cannot say how far he understood the explanations which doubtless were offered. The most absurd and baseless suspicions about Scott-Moncrieff & Trail seem to have got into his head. He seems to have suspected them of acting against his interests and in the interests of some-one else, and of concealing their letters and withholding his papers, for all of which notions I do not see the least particle of reason. It is no compliment to Scott-Moncrieff & Trail to assume that they acted perfectly uprightly in the management of the pursuer's business, for in truth they had no conceivable motive for doing anything else, and the pursuer's suggest ions as to their motives, as, for example, when he suggests that they wished to favour Mr Clay, seem the merest moonshine; but they seem to have affected the pursuer, and

_________________ Footnote _________________

† This letter was in the following terms—“We have received your note of yesterday's date with cheque for £200, on account of rent due for your farm, for which we enclose receipt with thanks. We shall be glad to receive a remittance of the balance of £90 of the rent to Whitsunday last along with the half-year's rent due at Martinmas, as the rent cannot be allowed to fall in arrear, seeing that it has so recently been so very much reduced.”

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may have biassed his judgment and memory. On the whole I cannot regard the pursuer's evidence as materially affecting the evidence for the defender. Necessarily he is the only witness for himself on the point, as Mr Haddon did not know what had taken place before he became the pursuer's agent.

The defender founded on a circumstance which I do not regard as of any consequence, viz., that Mr Haddon returned the rent to the Assessor as £290. The defender's counsel argued this point, and quoted Emslie v. Duff, June 2, 1865, 3 Macph. 854; and Rattray v. Leslie's Trustees, June 11, 1892, 19 R. 853. But Mr Haddon explains why he did this, and I think his reason is sufficient, and am very clearly of opinion that this circumstance, although perhaps it might be competently referred to, is of little or no weight. But, as I have said, I think the defender's case sufficient without it.

Now, if it be adequately proved that the letters which have been referred to were written with the authority of the pursuer, the result in law is that these letters are the pursuer's writ. That was not disputed, and if they can be regarded as the pursuer's writ, then I am of opinion that they prove the defender's case. If they had been actually written by the pursuer, could be have demanded the old rent? I am of opinion, not wholly without hesitation, that he could not.

The view which I have taken is that the case does not depend on anything done or written before the pursuer succeeded, but solely on letters written for himself by his authority, and that the defender's averment of an alteration of the lease has been proved wholly by what is in law the pursuer's writ, and in no part by parole. Perhaps the notes of evidence may include statements which may not be competent evidence on this point, but they are not thereby made evidence, and the narrative of the case could not, I think, have been otherwise told. Taking this view of the case, I am not aware that any disputable question of law arises, and it is not necessary to consider the authorities referred to, and with which it might have been necessary to deal if I had held that the defender's case depended on any agreement prior to the pursuer's succession.

A statement has been lodged for the defender purporting to show the sum due by him on the footing that the rent bad been £290 since Whitsunday 1895, and it has not been criticised. It takes credit for the two payments of £200 and £390, and brings out a balance due to the pursuer of £17, 19s. 11d. I have been informed that an additional sum has since been paid.”

The pursuer reclaimed, and argued—(1) The letters did not alter the contract of lease. A lease was a formal document, and one of its chief conditions was a fixed rent. Such a condition could not be altered by vague informal writings. A lease was a bargain as regards heritage, and any alteration of its terms must be express and by probative document. In the present case it was quite clear that Messrs Scott-Moncrieff & Trail and Mr Bell intended at one time to carry out an alteration in the lease by reducing the rent by means of a formal minute of agreement. But this had never been done. An improbative document might be set up by rei interventus. Here no rei interventus followed on the letters. Besides, the letters did not instruct any agreement at all. They did not constitute any arrangement between the parties. One could not gather from them that any arrangement had been decided on, or any date from which the agreement was to be operative, or any period during which it was to last. On these grounds the letters must be held not to have altered the lease—Hunter's Landlord and Tenant, ii. 469; Riddick v Wightman, May 27, 1790, Hume 776; Gibb v. Winning, May 28, 1829, 7 S. 677; Caithness Flagstone Quarrying Company v. Sinclair, July 9, 1880, 7 R. 1117, aff. April 7, 1881, 8 R. (H.L.) 78; Carron Company v. Henderson's Trustees, July 15, 1896, 23 R. 1042, opinion of Lord M'Laren, 1054. (2) Even if the letters were held sufficient to alter the lease, they did not do so in a question with the pursuer. In order to write such a letter, Messrs Scott-Moncrieff & Trail would have required the written authority of the pursuer, and they had no written authority or authority of any kind. The pursuer had never homologated such a contract. He had never known what the contract was, if one existed, and a man could not be held to have homologated a contract unless it could be shown that he understood its terms— Shaw v. Shaw, March 6, 1851, 13 D. 877; Wemyss' Trustees v. Lord Advocate, December 11, 1896, 24 R. 216.

Argued for defender—The judgment of the Lord Ordinary was sound. (1) It was not necessary that a reduction of the rent in a lease should be made by a formal and holograph writing. Rent in a lease could be reduced by a writing which was not holograph— Law v. Gibsone, February 3, 1835, 13 S. 396—or by an informal document like a letter— Lindsay v. Webster, December 9, 1841, 4 D. 231. (2) The authority of Messrs Scott-Moncrieff & Trail to reduce the rent did not require to be proved by writing. It did not need to be given to them by the pursuer in writing; the reduction could be made by the agents on the verbal instructions of the landlord— Steuart v. Johnstone, July 17, 1857, 19 D. 1071; Mackenzie v. Brodie, June 24, 1859, 21 D. 1048; Emslie v. Duff, June 2, 1865, 3 Macph. 854; Horne v. Morrison, July 3, 1877, 4 R. 977; Pant Mawr Quarry Co. v. Fleming, January 16, 1883, 10 R. 457. The authority in the present case had been amply proved, and the reduction of the rent had been effectually carried out.

At advising—