Scottish Court of Session Decisions

This was an appeal from a judgment of a Sheriff-Substitute at Glasgow ( Guthrie) in a special case stated for the opinion of the Sheriff Court at Glasgow by the arbiters in a reference under the Agricultural Holdings (Scotland) Acts 1883 to 1900 upon the question whether, in the circumstances set forth in the case, there had been a “determination of tenancy” within the meaning of the Agricultural Holdings Acts.

William Bowie became tenant of the farm of Glenduffhill, Shettleston, of which James Todd was proprietor, under a lease for 19 years from Martinmas 1897. The lease contained a clause whereby the landlord agreed to put the houses and fences in good tenantable repair.

In November 1898 a correspondence began between the parties to the lease with reference to damage sustained by the tenant through losing his hay foggage by reason, as he alleged, of the fences not being put in repair in terms of the lease. The landlord maintained that the fences were sufficient for the purpose for which the farm was let, namely, as an agricultural subject and not as a sheep farm.

On 23rd June 1900 the tenant intimated that, as the loss he was sustaining on account of the fences not being put in a tenantable state of repair was a serious one and was increasing every day, he had resolved to leave the farm after taking off his crop, and to raise an action of damages against the landlord. In reply, on 28th June, the landlord denied that the tenant had any ground of complaint, and alleged that he had been miscropping the farm.

On 16th July 1900 the agent of the tenant sent a letter to the agents of the landlord in the following terms:—“I duly received your letter of 28th ult., and have since seen my client anent same. He explains that he has not miscropped the farm in any way and has given me definite instructions to proceed with an action against your client for the damage already sustained. I have also been instructed by him to intimate that as the fences have not yet been put in order he finds it impossible for him to stay on in the farm. I therefore give you notice that my client intends leaving the farm at Martinmas first and claiming damages for your client's failure to implement the terms of his lease, on account of which failure my client has been obliged to resile from the lease.”

The tenant left the farm as to the arable lands at Martinmas 1900 and as to the houses and grass lands at the following Whitsunday, and raised an action of damages against the landlord in the Sheriff Court at Glasgow. The landlord defended the action and maintained that he had let a subject which did not require fences. On 21st December 1900 the Sheriff-Substitute ( Guthrie) found the tenant entitled to damages to the extent of £35.

On 28th December 1900 the landlord's agents wrote to the tenant's agent in the following terms:—“As your client, the tenant, has intimated both by letter and in the pleadings in Court that he is to leave the arable lands as at Martinmas and the house and grass parks as at Whitsunday next, it is necessary that our client should arrange to find a new tenant. We assume your client has now ceded possession of the arable lands, and we propose to advertise for a new tenant. Of course we shall do so on the distinct footing that our client does not recognise that your client had any right to terminate the lease as he has done, and that he insists upon his claim of damages for breach of contract and also for bad husbandry. We shall be glad to hear from you that you approve of a new tenant being got on the best terms possible, without prejudice to our client's whole claims.”

On 29th December 1900 the tenant's agent replied as follows:—“I have your letter of yesterday's date. As my client has now ceded possession of the arable lands, it lies with your client to do the best he can in procuring a new tenant for the farm, a matter with which my client has nothing to do. Meanwhile, I am getting my client's additional claim made out for damage sustained through want of fencing and through his being obliged to leave the farm on that account; also his claim for seeds and unexhausted manure, &c.”

In June 1901, after the tenant had quitted the farm, the parties entered into a reference under the Agricultural Holdings (Scotland) Acts upon a claim by the tenant made as on the determination of the tenancy. The claim was for £399, 8s., on account of unexhausted manure, grass seeds, and damages for loss sustained, and for breach of contract by reason of the landlord's failure to put the fences into proper tenantable order.

The landlord, who had entered into the reference subject to reservation of his rights, pleaded that the tenant's claim with the exception of one item was incompetent, and maintained before “the arbiters that there had been no “determination of the tenancy” in the sense of the Agricultural Holdings Acts.

The Agricultural Holdings (Scotland) Act 1883 (46 and 47 Vict. cap. 62), section 42, defines “determination of tenancy” as follows:—“Determination of tenancy means the termination of a lease by reason of effluxion of time or from any other cause.”

In respect of the question raised as to whether there had been a determination of the tenancy in the sense of the Acts, the arbiters stated this special case in the Sheriff Court at Glasgow.

The question of law for the opinion and judgment of the Court was as follows:—

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“Has there been a ‘determination of tenancy’ in the sense of the Agricultural Holdings Acts 1883–1900?”

On 11th October 1901 the Sheriff-Substitute ( Guthrie) pronounced the following interlocutor:—“Having considered the special case and the documents produced, I am of opinion that there has been a determination of the tenancy in the sense of the Acts.

“ Note.— Strang v. Stuart, 1887, 14 R. 637.” The landlord appealed to the Court of Session.

Argued for the appellant—The tenant of an agricultural subject under a 19 years' lease had no right to throw up his lease on account of such a failure on the part of the landlord as was alleged in this case. The tenant's remedy for breach of contract by his landlord under a lease of agricultural subjects was not the same as in the case of urban subjects, and consequently the case of Davie v. Stark, July 18, 1876, 3 R. 1114, 13 S.L.R. 666, did not apply. Even assuming that a tenant was entitled to abandon his lease on account of breach of contract by the landlord, the respondent had abandoned his lease before it was decided in the Sheriff Court action that there was a breach of contract. In the case of Strang v. Stuart, March 16, 1887, 14 R. 637, 24 S.L.R. 447, which was referred to by the Sheriff-Substitute, both parties to the lease agreed to bring it to an end. Here there was no agreement, which distinguished that case from the present. The lease was still enforceable. The question put by the arbiters should be answered in the negative.

Argued for the respondent—The abandonment of the lease by the tenant was a “termination of the tenancy” within the words of section 42 of the Act of 1883. The words “or from any other cause” were absolutely general. It was not until the appellant had been repeatedly requested and ample time had been given to repair the fences that the respondent had abandoned his lease, and after the abandonment the appellant had intimated his intention to advertise the farm to let; therefore it could not be said that parties were not agreed to terminate the tenancy. The appellant's breach of contract entitled the respondent to abandon his lease. The case was within the rule of Davie v. Stark, cit. sup., Lord Justice-Clerk, 3 R., p. 1119; Webster v. Brown, May 12, 1892, 19 R. 765, Lord Trayner, p. 768, 29 S.L.R. 631. Where one party to a mutual contract has failed to perform his part of the contract in any material respect the other was entitled to rescind it— Turnbull v. M'Lean & Company, March 5, 1874, 1 R. 730, 11 S.L.R. 319.