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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barclay v. Neilson [1878] ScotLR 15_622_1 (12 June 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0622_1.html
Cite as: [1878] ScotLR 15_622_1, [1878] SLR 15_622_1

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SCOTTISH_SLR_Court_of_Session

Page: 622

Court of Session Inner House First Division.

[Sheriff of Dumfries and Galloway.

Wednesday, June 12. 1878.

15 SLR 622_1

Barclay

v.

Neilson.

Subject_1Lease
Subject_2Farm Buildings
Subject_3Obligation on Landlord to put Buildings in Tenantable Order.
Facts:

A lease for nineteen years contained a declaration that the additions to the farm buildings and repairs thereon should be executed in a manner to be approved of by the landlord. There was no obligation on either landlord or tenant to execute them, and no specification of what they were to be. Held (1) that in the absence of any special stipulation to the contrary, the liability for repairs must fall on thel and lord, and, on the principle noscitur a sociis, that the liability for additions must also fall on him; and (2) that the measure of his liability was what was required for the cultivation of the farm in terms of his lease, and should be ascertained by a remit to a man of skill.

Headnote:

This was an action raised in the Sheriff Court at Kirkcudbright by John Barclay, tenant of the farm of Barstobrick, against his landlord, and concluded for decree that the defender should be ordained to implement the lease of the farm granted by him to the pursuer of date February 1869, “by making and completing the repairs and alterations on the houses and buildings on said lands and others thereby let, referred to in said lease, and agreed to between the parties, ” &c. The particular repairs and alterations asked were specified in the summons, and the Court were alternatively asked to have these ascertained. There was a further alternative conclusion for damages.

The clauses in question of the lease provided—“And with respect to the houses and buildings upon the said lands and others hereby let, it is declared that the additions to and repairs thereon shall be made and completed in a manner to be approved by the said Walter Montgomerie Neilson or his foresaids; and on the same being completed they shall be upheld and maintained in good tenantable condition during the lease, and left in like condition at the expiry thereof by the said John Barclay and his foresaids, and the proprietor shall have full power and liberty to have the said houses and buildings annually inspected by a competent person or persons appointed by him, and in case and so often as repairs are necessary,

Page: 623

shall be entitled to have them forthwith executed, and the expense thereof, as instructed by the tradesmen's discharged accounts, shall form a charge against the said John Barclay and his foresaids, and shall be paid, as he hereby binds and obliges himself and them to pay the same, alongst with the rent at the first term of Whitsunday and Martinmas next ensuing.” There was no obligation on the landlord, nor was there any on the tenant, to erect or repair any buildings on the farm, nor was it anywhere specified what the “additions and repairs” were to consist of. The pursuer averred that there had been an arrangement come to between him and his landlord prior to the execution of the lease, by which the landlord undertook to make certain additions and repairs. This was denied by the defender.

The pursuer pleaded, inter alia, —“(2) The defender having agreed by the pursuer's lease to make and complete additions and repairs on the houses and buildings, the Court is entitled to ascertain and define these additions and repairs by a parole inquiry or remit, and the defender is bound to make them as ascertained. (3) In any view, the defender is bound by the lease, and separatim by common law, to put the buildings into good tenantable condition, and to repair or alter them so as to make them sufficient for the purposes of the lease.”

The defender pleaded, inter alia, —.“(2) The defender is entitled to absolvitor, in respect the obligations sought to be enforced are not incumbent on him under the lease of 22d February and 16th April 1869, which forms the contract between the parties. (3) The averments of an alleged agreement prior to the said lease are irrelevant—(1) in respect of the execution of the said lease; (2) they can only be proved by the oath of the defender, or by his writ, subsequent to the date of the said lease; and (3) they are unfounded in fact.”

The Sheriff-Substitute ( Nicholson) allowed both parties a proof of their averments.

The defender appealed to the Court of Session.

At advising—

Judgment:

Lord President—The pursuer in this case is the tenant and the defender is the landlord of the farm of Barstobrick, under a lease, dated in February 1869 for nineteen years from the term of Whitsunday in that year. There is nothing very remarkable in the lease except one clause, which gives rise to the contention of parties in this case. That clause is certainly very remarkable in its expression—[ Reads ut supra]. Now this is all that the lease contains with regard to additions and repairs on the houses on the farm. There is no specification of what these additions and repairs are to be, nor is it said at whose expense they are to be made. On both of these points parties differ. The landlord says there is no obligation laid on him by words of the lease to make any additions or repairs. The tenant says it is plainly intended that the obligation shall be laid on the landlord, and although these additions and repairs are not specified in the lease, that, he says, was all arranged previously, and he is in a position to prove by parole evidence that certain additions and repairs were consented to by the landlord.

To prove the tenor of preliminary negotiations as part of the agreement for lease is quite out of the question; that cannot be listened to for a moment. But I can still less admit the landlord's view of the case, which is this—that the necessary effect of the way in which this clause has been blundered is, that there are to be no additions to nor repairs upon the farm buildings unless the tenant pays for them. I can fancy a clause in a contract providing that something is to be done but failing in its operation because the thing is not specified, and the party by whom it is to be carried out is not specified—by reason of its uncertainty it may, as a legacy if uncertain lapses, be void altogether. But that is not the case here; not only are new buildings mentioned, but repairs upon old buildings are also mentioned. Now, prima facie the liability must be upon the landlord; he is at common law liable to put the farm buildings in tenantable condition; it does not require, therefore, to be said by whom the existing buildings are to be repaired. The term “additions” must, I think, be interpreted on the principle noscitur a sociis—whoever is to bear the burden of the one is to bear the burden of the other. I extract therefore from this clause sufficiently clearly this much, that there are to be additions and repairs made, and further that the expense is not intended to be thrown as a burden, in what I hold to be such an exceptional way, on the tenant.

The next question is, How is this obligation to be worked out? In a different contract from a contract of lease there might be considerable difficulty about that, but there is not much difficulty in finding in a contract of lease a just measure of that liability. It is an obligation incumbent on the landlord at common law, and it is generally expressed in leases that the landlord will give his tenant such buildings as will enable him to cultivate the farm in accordance with the terms and conditions of his lease; that is what he is bound by common law to do.

It is, as I have said, altogether out of the question to allow the tenant to prove that certain arrangements were made before entering on the lease; but he is probably in a condition to show that certain buildings are required to enable him to cultivate his farm in accordance with the terms and conditions of his lease.

I think this is not a case for a proof at large.

I think the amount of additions and repairs necessary for that end may be very satisfactorily ascertained by some man of skill, who will say what buildings are necessary to enable the tenant to cultivate his farm according to the terms and conditions of his lease.

Lords Deas, Mure, and Shand concurred.

The Court pronounced the following interlocutor:—

“Recall the interlocutor of the Sheriff-Substitute of 19th March 1878: Find that according to the sound construction of the lease between the parties, the appellant (defender) is under an obligation to make such additions to and repairs on the steading of the farm of Barstobrick as are necessary to enable the respondent (pursuer) properly to cultivate the farm according to the terms and conditions of the said lease: Of consent remit to Mr John Dickson, Saughton Mains, to visit the said farm and report to

Page: 624

the Court what additions and repairs are necessary for that purpose: Reserving in the meantime all questions of expenses.”

Counsel:

Counsel for Pursuer (Respondent)—Dean of Faculty, (Fraser)— Burnet Agent— W. S. Stuart, S.S.C.

Counsel for Defender (Reclaimer)— J. P. B. Robertson. Agents— J. & A. Hastie, S.S.C.

1878


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