Scottish Court of Session Decisions

On 6th June 1905 James Hamilton, dairyman, Glasgow, brought an action against the Duke of Montrose in which he sought reduction of a “pretended” missive of lease of a farm called Braval, Mounevreckie, &c., in the parishes of Aberfoyle and Port of Monteith, belonging to the defender, and a “pretended” lease entered into between the pursuer and the defender dated 15th February and 30th March, both in the year 1899, with repetition of the rents paid, under deduction of the sum of £950 or of such other sum as might be ascertained “to be a reasonable equivalent for the possession by the pursuer under the said pretended missive and lease from and since the term of Martinmas 1898, being the date of his entry to the arable ground, and the term of Whitsunday 1899, being the date of his entry to the pasture and houses; ” or alternatively, payment of £2400 as damages for alleged fraudulent misrepresentation as to the carrying capacity of the farm. Secondly, the pursuer sought £200 damages in respect of the alleged failure of the landlord to repair the fences on the farm.

The pursuer averred in support of his conclusion for reduction that in the Glasgow Herald of 26th October 1898 and of other dates an advertisement (quoted in the Lord Ordinary's opinion) appeared of the farm whose lease was in question, describing it as “a hill grazing capable of keeping about 2000 blackfaced sheep and summering 100 cattle.” “Cond (3) Upon the faith of the statements in said advertisement the pursuer offered to … the defender's chamberlain to lease the said farm of Braval, Mounevreckie, &c. (with part of Auchyle), all as advertised, at a rent of £350 per annum on a lease for fifteen years. After certain verbal communings his offer was accepted by the said … on behalf of the defender, by letter dated 10th December 1898. This letter constitutes the missive libelled. Thereafter a formal lease was drawn up and signed by the pursuer and defender on 15th February and 30th March 1899.… Cond (4) By the said advertisement the defender represented, and intended to represent, that the said farm of Braval, Mounevreckie, &c., was capable of maintaining about 2000 blackfaced sheep and of summering 100 cattle. The said statement was material, and the pursuer would not have entered into said contract but for it. The pursuer has since discovered and avers that the said farm was not and is not capable of maintaining 2000 blackfaced sheep and summering 100 cattle, or of maintaining and summering anything like these numbers. At most it could and can only properly carry 1400 sheep, and there is no summering for cattle.… (Cond. 5), The defender, or his said chamberlain, was well aware of the facts set forth in the preceding article, and the representations as to the carrying capacity of said farm made in said advertisement were so made in the knowledge that the same were false, or at least with gross recklessness and without regard to their truth or falsehood.… (Cond. 6).… The rents payable as at

Martinmas 1901 and Whitsunday 1902 were paid by the pursuer under protest, and under reservation of all pleas and objections, and the payments since then were made on or about 21st November 1904, under pressure of a charge served upon him by the defender on 9th November 1904, and also under reservation of all his claims and contentions …”

The pursuer's averments dealing with the alleged failure to implement the obligation as to fencing [the portions printed in italics being added by a minute when the case was before the Inner House], were:—“(Cond. 10). By the foresaid lease the defender undertook, inter alia, ‘and that as soon as possible and within a reasonable time after the commencement of this lease, to execute all necessary repairs to the existing houses (including shepherds‘ houses, but excluding cottars ’houses, for the repair of which there will be no liability on the proprietor, and the same are specially exempted from the provisions of this clause) and fences on and around the farm, and also to erect a fence to enclose the unfenced part of the portion of Auchyle included in this lease.The pursuer repeatedly called upon the defender to execute the said repairs, but the defender refused or delayed to do so, and it was not until October 1904 that the whole work undertaken by the defender was completed. The pursuer has thereby suffered great loss and inconvenience. Inter alia, the insufficiency of the fences has prevented him from keeping the sheep on the higher ground of the farm during the summer months, and away from the lower ground, which it is usual to keep for winter grazing. In particular, the following fences dividing the higher and lower ground were not put in order till the autumn of 1904, viz., a fence running southwards from a point on the south side of Loch Drunkie, and about 600 yards from the west end thereof to Trombuie, and a fence running southeastwards from a point about 150 to 200 yards to the north of the shepherd's house at Upper Dounance to a point where it joins the parish boundary. The loss, injury, and damage sustained by the pursuer in consequence of the defender's failure and delay to fulfil his said obligations, and particularly on account of the pursuer having to purchase other food stuffs for winter feeding in place of the said winter grazing which he was thus unable to reserve, is not less than £200, being the sum last concluded for.…”

The pursuer pleaded—“(1) The pursuer having entered into said missive and lease under essential error induced by the defender, and, separatim, the pursuer having been induced to enter into the said missive and lease by the defender's false and fraudulent representations, he is entitled to decree of reduction as concluded for. (2) The said missive and lease being reduced, the pursuer is entitled to repetition of the rents and interest paid by him as condescended on, with relative interest, under deduction of a reasonable equivalent for his possession; … (3) In the event of the pursuer's failure to obtain decree of reduction

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and restitution as concluded for, he is entitled to damages for the loss, injury, and damage caused to him by the said fraudulent misrepresentations. (4) In the like event, the pursuer is entitled to damages for the loss and damage sustained by him until the defender's obligations in regard to said … fences were implemented.”

On 5th September 1905 the Lord Ordinary ( Ardwall) pronounced the following interlocutor:—“Assoilzies the defender from the whole conclusions of the summons except the conclusion for payment of £200: Dismisses said conclusion for £200.…”

Opinion.—“ The ground on which the pursuer seeks reduction of the lease libelled is that he was induced to enter into it by the false representations as to the carrying capacity of the farm contained in an advertisement thereof in the Glasgow Herald, of 26th October 1898. Among the farms there advertised to be let is the farm now tenanted by the pursuer, which is thus described in the advertisement:—‘ Perthshire, Montrose Estates. Farms to be let, for such number of years as may be agreed on, with entry to the ploughable lands immediately after set, and to the houses and pasture at Whitsunday 1899. (1.) Braval, Mounevreckie, &c., in the parishes of Aberfoyle and Port of Monteith, comprising a hill grazing capable of keeping about 2000 black-faced sheep and summering 100 cattle, and 230 or thereby acres of arable and meadow land.’

“It is alleged by the pursuer that the said farm cannot carry 2000 black-faced sheep and summer 100 cattle, and that, in respect of the false statements in the advertisement he is entitled to have the lease reduced.

I am of opinion that the pursuer's statements are irrelevant. There is no warranty given that the farm would carry 2000 black-faced sheep and 100 cattle, and statements in an advertisement are not intended to be accepted by offerers as correct without inquiry, nor in point of fact do offerers for a farm accept such statements without looking into the matter for themselves; no ordinary person would. But, besides that, it appears to me that the statement complained of is merely an expression of opinion as to what the farm would carry, and, as was said in another case I shall presently refer to, was not intended to exclude, but to invite inquiries. If the pursuer desired to have the representation regarding the carrying capacity of the farm warranted he should have got it warranted or otherwise made part of the contract. Further, it cannot be said that the representations so made were in essentialibus of the contract. There is no dispute as to what the subject let was, and it was the pursuer's business as a prudent man to find out what were its capabilities. I may refer to the case of Wood v. Tulloch, 20 R. 477, which, although a question of the sale of a property, contains some law bearing upon the present case. I may also refer to the case of Grieve v. Rutherford's Trustees, 1871, 9 8.L.R. 60, which, although principally decided on the question of mora, yet contains several observations applicable to the present case. There the misrepresentation founded on as a ground of reduction was very similar to the present, namely, that ‘ the farms are capable of carrying about 2000 sheep besides cattle,’ and the Lord Ordinary, whose judgment was affirmed by the Inner House, said that this representation was no warranty, but merely an expression of opinion on which the intending tenant should exercise his own judgment. The pursuer's counsel relied on the case of Macpherson v. Campbell's Trustees, 41 Scottish Jurist, p. 634, where issues of reduction of a lease were allowed. But when examined it appears to me that that case is an authority against the pursuer rather than for him. The misrepresentations alleged in that case were contained, first, in an advertisement, and second, in a note of particulars furnished on inquiry by the factor for the landlord, and Lord Barcaple, who was Lord Ordinary in the case, held that the statements in the advertisement could not form a ground of reduction, but that those in the note of particulars could, and apparently his view was concurred in by the Inner House, although the report does not distinctly say so. In that case the advertisement contained a clause in these terms :—‘ The lands are at present stocked with superior blackfaced sheep and estimated to carry about 5500.’ Lord Barcaple deals with this statement thus—The Lord Ordinary thinks that ‘from the subject matter of the statement, and the form in which it is made, it invited, and was not intended or calculated to exclude inquiry. No person of ordinary prudence would without inquiry rely upon such a statement as satisfactory evidence of the capabilities of the farm. The Lord Ordinary is therefore of opinion that in so far as the pursuer's averments are rested upon statements in the advertisement they may be dismissed from consideration in this question of the relevancy of the action.’ He then goes on to point out how the note of particulars by the landlord's factor stood in a totally different position. Taking the view I do regarding the effect of the advertisement, I do not need to enter into consideration of the question of bar raised by the fifth plea-in-law for the defender, but it appears to me that, considering that the pursuer entered on the farm in question at Martinmas 1898, that plea forms a very formidable obstacle in the way of the pursuer insisting in an action of reduction of the lease after being in possession of the farm under that lease for more than six years, and having insisted on the landlord fulfilling the obligations undertaken in the lease of which he now seeks reduction.

With regard to the conclusions of the summons other than the reductive conclusion and the conclusions which depend on it, there is a conclusion for £2400 of damage said to have been caused by the fraudulent misrepresentations in the advertisement. I am of opinion that the defender is entitled to be assoilzied from that conclusion on the same grounds that I

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have held that he is entitled to be assoilzied from the reductive conclusions. With regard to the conclusion for payment of the sum of £200 sterling, the statements in support of which are set forth in Condescendence 10, there is no relevant averment of the specific damage suffered by the pursuer in each year of the lease, or of any definite claim for damage being made on paying the rent from half year to half year. I therefore hold, on the authority of the cases Broadivood v. Hunter, 17 D. 340, and Emslie v. Young's Trustees, 21 R. 710, that there are not relevant averments to support this conclusion. It looks as if, indeed, the pursuer were barred from making any claims for damage prior to Whitsunday 1004, he having apparently paid his rent without reservation down to and including that date, and it appears from the statement in Condescendence 10 that all the repairs the want of which caused the alleged damage were completed by October 1904. However, as this is a question of relevancy, I shall merely dismiss this conclusion.”

The pursuer reclaimed and argued—The lease was entered into under essential error, as defined by Lord Watson in Menzies v. Menzies, March 17, 1893, 20 R. (H.L.) 108, at p. 142, 30 8.L.R. 530. Even if the landlord were ignorant that the representations were untrue that made no difference— Reese River Silver Mining Company v. Smith, 1869, L.R., 4 E. and I. Ap. 64, Lord Cairns, at p. 79. The misrepresentations in the advertisement were material, and were imported into the contract because the missives of lease, both offer and acceptance, referred to the farm “as advertised.” The pursuer's averments were relevant and proof should be allowed. Woods v. Tulloch, March 7, 1893, 20 R. 477, 30 S.L.R. 497, was to be distinguished because the misrepresentation there was not essential— Grieve v. Rutherford's Trustees, 10th November 1871, 9 S.L.R. 60, because it turned on the prolonged delay—ten years—in advancing the claim for reduction. The carrying capacity of a farm remains much the same, so in that respect the landlord could not be prejudiced by delay. That distinguished the present case from Broadwood and Emslie (cit. infra). [Lord Kyllachy—These two cases were referred to by the Lord Ordinary on the other branch of the case. Have you any case where it was held there was essential error or fraudulent misrepresentation on a matter of opinion? Yes, Ferguson v. Wilson, June 4,1904, 6 F. 779, 41 S.L.R. 601.]

On the conclusion of the first speech for the reclaimer the Court intimated that they did not require to hear further argument upon the question of reduction with the alternative claim for damages, and adjourned the hearing to enable the pursuer and reclaimer to make more specific, if he thought fit, his averments in Cond. 10 as to the landlord's failure to implement the obligation on him as to fencing. The amendments given supra in italics were then made.

At the continued hearing it was argued for the defender—Though the fences alleged to be in disrepair had now been specified there was no averment that the landlord's attention had been called to these specific fences. There was still want of specification as to the periods when damage was sustained, and as to the amounts of money paid out for extra food. There was no averment that at the end of each year, or as each half-year's rent fell due, specific damage had been tabled before the landlord. In a proof the landlord would be prejudiced (1) by the claim not having been made year by year so as to enable him to check the damage and keep evidence regarding it, and (2) by want of specification as to what he had to meet. A claim for damage by a tenant on the ground that his landlord had not done what in his lease he contracted to do ought to be tabled each half-year when paying rent. The averments were still irrelevant— Broadwood v. Hunter, February 2, 1855, 17 D. 340; Hardie v. Duke of Hamilton, February 2, 1878, 15 S.L.R. 329; Emslie v. Young's Trustees, March 16, 1894, 21 R. 710, 31 S.L.R. 559; Eliott's Trustees v. Eliott, June 7, 1894, 21 R. 858, 31 S.L.R. 753. Here there was an obligation in the lease to put the fences in repair and this the landlord thought he had done. There was no specific promise that would cause pursuer to put off his claim as in Johnstone (cit. infra).Lord Kyllacy asked for a reference to Callander v. Smith, June 29, 1900, 8 S.L.T. 109, and Baird v. Mount, November 19, 1874, 2 R. 101, 12 S.L.R. 88.

Argued for the pursuer—He averred that the two fences now specified had not been put in order although complaints had been made. The landlord would not suffer prejudice if the averments in Cond. 10 went to proof. There was a positive obligation in the lease to put the fences in repair. That was equivalent to the specific promise of the factor in Johnstone v. Hughan, May 22, 1894, 21 R. 777, 31 S.L.R. 655, to do the operations the tenant required. The paying of rent under protest and under compulsion (Cond. 6) distinguished this case from Broadwood and Emslie, as did also the fact that loss of particular winter grazing was, unlike damage done by game or failure to burn heather, capable of ascertainment at a subsquent date.