Scottish Court of Session Decisions

The Scottish Supply Association, Limited, Glasgow, pursuers, brought an action of summary ejection against John Mackie, 16 Gloucester Street, Glasgow, defender, in which they craved the Court to grant warrant for the summary ejection of the defender from the house occupied by him at 16 Gloucester Street, Glasgow.

The pursuers made the following averments—“(Cond. 1) By agreement between the pursuers and the defender, dated 1st December 1919, the pursuers engaged the defender in the capacity of foreman carter for their business, and the defender accepted said position. (cond. 2) By said agreement the pursuers purchased the business of cartage contractor then carried on by the defender at 14 Gloucester Street, Glasgow, including the firm name of John Mackie, but they allowed defender so long as he should remain in their employment, and so long as the pursuers should remain the tenants of the premises, the use of the house No. 16 Gloucester Street, Glasgow, with coal supply, free of rent and taxes. (Cond. 3) By said agreement it is further provided that it shall be in the option of either party to terminate the agreement of service on giving to the other party two months' notice in writing of his or their intention so to do. (Cond. 4) On or about 28th October 1920 the pursuers through their law agents intimated by letter to the defender that they would dispense with his services on 31st December 1920, and also that he was to remove from said house on the same date. (Cond. 5) Notwithstanding the expiry of said notice of removal the defender continues to occupy said house, although he is no longer in pursuers' employment, and he maintains that he is tenant thereof. ( Ans. 5) … Admitted that the defender continues to occupy the house at 16 Gloucester Street, Glasgow, and that he is not now in pursuers' employment. Explained that defender is tenant of said house. The missive of let between the defender and Messrs John Laing & Son, house factors, Glasgow, dated 2nd February 1910, which has been renewed on similar terms except as regards the amount of rent to be paid by defender from year to year since said date, is produced. (Cond. 6) The pursuers have ascertained that the defender (who was the tenant of the whole premises at 14 and 16 Gloucester Street, consisting of stables, &c., and said house prior to the date of said agreement) had on 21st January 1920 re-taken same for the year from Whitsunday 1920 in breach of his duty as a servant of the pursuers and without informing them. The defender's said action was unknown to the pursuers until after the said intimation of 28th October 1920. Denied that defender is the tenant of said house, and averred that pursuers are the tenants, and have paid the rents thereof falling due since the date of said agreement except the rents for the quarters ending Martinmas 1920 and Candlemas 1921, which were duly tendered. (Ans. 6) Admitted that defender on or about 21st January 1920 re-took the said house and also the stables at 14 Gloucester Street aforesaid for the year from Whitsunday 1920 to Whitsunday 1921 on the terms contained in the said missive of let, except as regards the amount of rent to be paid by defender, and that at the present date he is tenant of said house.… Denied that the pursuers paid the rent of said house at Martinmas term 1920 and at Candlemas term 1921, and averred that said rent was paid by defender.”

The agreement referred to contained, inter alia, the following provisions “It is contracted and agreed to between the parties hereto as follows:—( First) The vendor agrees to sell and the purchaser to purchase, free of all or any liabilities pertaining thereto, at the price of £2000, the business of cartage contractor presently carried on by the vendor under the name of ‘John Mackie’ at 14 Gloucester Street aforesaid, in which purchase price is included the firm name and goodwill of said business, together with the ten horses and ten lorries employed in connection therewith, as also all plant, fittings, harness, and moveable effects of whatever nature or description appertaining thereto. ( Second) The price will be paid and possession given on 1st December 1919.… ( Fourth) The purchaser undertakes to relieve the vendor of the half-year's rent due at Whitsunday 1920. ( Fifth) The purchaser agrees to engage the vendor in the capacity of foreman carter for said business at a wage of £4 per week.… ( Sixth) The purchaser further agrees to allow the vendor, so long as he remains in the purchaser's employment, and so long as the purchaser remains tenant of the premises, the use of the house No. 16 Gloucester Street, with coal supply, free of rent and taxes. ( Seventh) It shall be in the option of either party to terminate the agreement of service on giving to the other party two months' notice in writing of his or their intention so to do.”

The pursuers pleaded, inter alia—“1. The defence is irrelevant. 2. The pursuers having allowed the defender to occupy said house as a consequence of his employment

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with them, which has now ceased, warrant to eject should be granted. 3. The pursuers having by written intimation in terms of the said agreement warned defender to remove from said house, and said warning having expired, he is bound to remove accordingly. 5. The defender having sold his business, including the goodwill and the right to the name of John Mackie, and entered the service of the pursuers, was barred from re-taking the said premises in his own name and must be held to have done so on behalf of the pursuers. 6. The defender is barred personali exceptione from founding on his actings committed in breach of his agreement with pursuers.”

The defender pleaded, inter alia—“1. No title to sue. 2. The action is incompetent and irrelevant. 3. The defender being tenant of the house at 16 Gloucester Street aforesaid, and the pursuers being neither proprietors nor tenants thereof, the action should be dismissed, with expenses.”

On 28th February 1921 the Sheriff-Substitute ( Boyd) granted warrant of ejection.

On appeal the Sheriff ( Mackenzie) on 11th April 1921 sustained the first plea-in-law for the defender and dismissed the action.

“ Note.—In equity there is much to be said for the Sheriff-Substitute's decision, but I have failed to find legal grounds on which it can be supported.

The action is one of ejection, and the ground of action is that the pursuers are tenants of the house referred to in the petition, and that the defender occupied it as their servant. If the defender does not occupy as their servant but has another title to possess, the action in my opinion fails. Now although the pursuers claim to be tenants of the subjects, their own averments in my opinion show that they have no right of tenancy. Their claim to be tenants is founded on the agreement, and it is material to note that that agreement is dated 1st December 1919. Under this agreement the defender agreed to sell, and the pursuers to purchase, at the price of £2000, the business of cartage contractor then being carried on by the defender under the name of ‘John Mackie,’ at 14 Gloucester Street, Glasgow, together with the firm name and goodwill of the business, and the horses, lorries, and plant employed in connection therewith. The pursuers undertook to relieve the defender of the half-year's rent due at Whitsunday1920. They also agreed to engage the defender as their foreman carter at a specified wage and to allow him, so long as he remained in their employment and so long as they remained tenants of the premises, the use of the house which he was then occupying at No. 16 Gloucester Street, free of rent and taxes. This house, it may be explained, was included in the lease of the premises held by the defender at the date of the agreement. The agreement finally provided that either party should have the option of terminating the defender's agreement of service on two months' notice. The contention of the pursuers is that the above agreement imported an assignation to them of the defender's right of tenancy of the subjects at Nos. 14 and 16 Gloucester Street, that in virtue of that assignation they became tenants of the subjects, and that the defender thereafter occupied the dwelling-house at No. 16 Gloucester Street as their servant. I am inclined to agree with the pursuers' argument so far as to think that the agreement imported an assignation of the defender's right of tenancy of the subjects under the lease which he then held from the proprietor, and that as assignees were not expressly excluded by the terms of that lease, delivery of the agreement placed the pursuers quoad the defender in the position of tenants. But the lease which the defender had from the landlord at the date of the agreement was a yearly one—that is to say, it ran from Whitsunday 1919 to Whitsunday 1920—and assuming that the agreement imported an assignation of the defender's rights under that lease, the subject impliedly assigned was, I think, only that lease, for I cannot hold that the agreement imported an assignation of any lease of the subjects which the defender might subsequently acquire from the landlord. The effect of the agreement, therefore, in my opinion, was to enable the pursuers, by intimating their assignation, to substitute themselves in place of the defender as tenants under the existing lease, but I cannot hold that it gave them any rights as regards the future when that lease should be expired. It was for them to take steps to secure from the landlord a lease of the premises after Whitsunday 1920. Now the pursuers do not aver, either in the condescendence as it stands or in the minute of proposed amendment, that they ever intimated the assignation contained in the agreement to the landlord or his factor until November 1920, that is, long after the expiry of the existing lease which was assigned to them, or that the factor was ever made aware prior to November 1920 of the assignation in their favour. They do say that after the date of the agreement (1st December 1919) they paid the rent of the subjects to the factor, but they do not aver that the factor knew that they were paying the rent or in any way acknowledged them as tenants, and as they had bought the firm name of the defender, and presumably carried on business under it, it may well be that the factor never knew of the transfer of the business or that the pursuers were paying the rent. In a question with the landlord, accordingly, they never became tenants under the lease which existed at the date of the agreement. Nor do the pursuers aver that they ever applied for or obtained a lease of the subjects from the landlord after Whitsunday 1920. On the contrary, they make the following averment to article 6 of the condescendence—‘The pursuers have ascertained that the defender (who was the tenant of the whole premises at 14 and 16 Gloucester Street, consisting of stables, &c., and said house, prior to the date of said agreement) had on 21st January 1920 re-taken same for the year from Whitsunday 1920 in breach of his duty as a servant of the pursuers and without informing them.’ The result is, in my opinion,

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that their own averments contradict their statement that they are now tenants of the subjects, and show that the defender is the tenant. It follows, in my opinion, that their contention that the defender's right to occupy the dwelling-house was, at the date when his contract of service was terminated, derived from them under that contract, and ceased when that contract terminated, fails. It may well be, at the same time, that the act of the defender in re-taking the premises from the factor was against the faith of the agreement between him and the pursuers, but that consideration cannot, in my opinion, turn the pursuers into tenants, if they hold no lease of the subjects, or deprive the defender of his rights under the lease granted to him by the landlord's factor. It is pleaded by the pursuers that—‘(5) The defender having sold his business, including the goodwill and the right to the name of “John Mackie,” and entered the service of the pursuers, was barred from re-taking the premises in his own name, and must be held to have done so on behalf of the pursuers.’ I have failed to find in the facts averred any sufficient ground for the support of this plea. I am unable, as I have already said, to hold that the lease granted to the defender in January 1920 was impliedly assigned by him to the pursuers by the agreement of December 1919, nor can I hold that in taking that lease in his own name the defender must be held to have taken it for the pursuers, for they do not aver that the factor intended to let the subjects to anyone else than the defender himself. It may be that in re-taking the premises the defender committed a breach of his contract with the pursuers for which they may have a remedy, but that is a matter in regard to which it is unnecessary for me to pronounce an opinion at present. Again, I cannot find in the pursuers' averments ground for holding that the defender is barred from founding in this action on the lease granted to him in January 1920, and from representing that he is now the tenant of the subjects. He might be so barred if he had by words or conduct represented to the pursuers that he was not tenant, or had not taken a lease of the premises for the year following Whitsunday 1920, and had by such words or conduct induced the pursuers to alter their position to their prejudice, but there is no averment of any such representation by the defender.

“For these reasons I am of opinion that the defender's plea of no title to sue must be sustained.”

The pursuers appealed, and argued—The action of ejection was competent. The pursuers were tenants of the house under the agreement between them and the defender. By it there was a universal transfer of the assets of the business. The tenants' rights passed as one of the assets. The words “so long as the purchaser remains tenant” were significant. Thereafter the defender occupied the house merely as pursuers' servant. The cases cited by the defender, Scottish Property Investment Company Building Society v. Horne, 8 R. 737, 18 S.L.R. 525; Robb v. Brearton, 22 R. 888, 32 S.L.R. 671, and Walker v. Kerr, 1917 S.C. 102, 54 S.L.R. 103, were to be distinguished in respect that in each of these cases there were competing titles which could not be solved in a process of ejection. Here there was only one possible title which had been assigned to the pursuers, and in view of the terms of the missive the landlord could not refuse to recognise the assignation. The following cases were also referred to:— Traill v. Trail, 1 R. 61, 11 S.L.R. 8; Sinclair v. Tod, 1907 S.C. 1038, 44 S.L.R. 771.

Argued for the defender—An action of ejection was not competent unless pursuers' title as owners or tenants was instantly verifiable. That was not so here. On the contrary the defender had an ex facie absolute title as tenant and the pursuers had, at best, only a right to demand an assignation. The question was whether an existing title in the defender could stand against the title which the pursuer was seeking to set up. Such a question could not be decided in this process. The following cases were referred to:— Scottish Property Investment Company Building Society v. Horne; Robb v. Brearton; Walker v. Kerr.

At advising—