Scottish Court of Session Decisions

Thomas W. Armour, ship-chandler, became, in 1895, tenant of a house at No. 21 Queen's Crescent, Cathcart, belonging to the trustees of the late Mrs William M'Kimmie. He renewed his tenancy from year to year, and finally took the house from Whitsunday 1898 to Whitsunday 1899 at a rent of £28.

On 17th October 1898 Armour removed from the house. Prior to this the following letters had passed between him and the factor for the landlords:—

”21 Queen's Crescent, Cathcart,

Mr Hitchcock, 16 th Sept. 1898.

c/ Mr D. Munro, Hope St.

Sir—Re-letting house at above address—Not having heard from you if you have succeeded or not, and as the insanitary state of the house is getting worse, and you don't seem to be taking any steps to make it better, kindly grant me a letter that I can leave the house as soon before November term as possible, and if your intentions are to try and make the house right to live in, this will give you an opportunity and time for so doing—before an incoming tenant. I am quite willing to pay the rent and taxes up to November term, but after that I decline to do so.—Yours truly

Thos. W. Armour.”

“39 Hope Street, Glasgow, 19 th Sept. 1898.

Thos. W. Armour. Esq.,

21 Queen's Crescent, Cathcart.

Dear Sir—Yours of the 16th inst., addressed to Mr Hitchcock, duly received. I have not yet succeeded in sub-letting your house, but am doing the best I can. I would suggest the house should be advertised.

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The cost would be trifling, 6d. or 9d. each insertion; and I will be glad to have your authority to do this. I cannot admit that the house is in an insanitary condition or unfit for habitation, as you try to make out. I have instructed my tradesmen to proceed at once to put in a few extra gratings at front and back to cause a stronger current of air under the floors.—Yours truly

Daniel Munro.”

“21 Queen's Crescent, Cathcart,

D. Munro, Esq., Hope St. 21/9/98.

Dear Sir—Your favour of 19th inst. duly to hand. With regard to certain statements therein, particularly your assertion that the house is not in an insanitary condition, I affirm it is, and also prejudicial to the health of myself and family. Your remarks are quite arbitrary, as I surely know better than you the condition that the house is in seeing I live in it. The house being damp is nothing new to me, but the fact is it is daily getting worse. My furniture is partially destroyed, and bears unmistakeable indications of the insanitary condition of the house. An inspection of the house will be quite sufficient to prove this to any impartial individual. Your own servant can testify that my chairs were covered with green mould. I have brought in two professional gentlemen, and they pronounce the house unfit for habitation; and I certainly hold you responsible for any damage done resulting from the condition of the house.—Yours respect.,

Thomas W. Armour.”

M'Kimmie's trustees brought a petition in the Sheriff Court of Renfrewshire on the averment that Armour was removing his furniture, praying that the said furniture should be brought back and sequestrated in security and for payment to them “(1) of the sum of £14 sterling, being the current half-year's rent of said premises, to become due and payable at the term of Martinmas next 1898, with the legal interest thereon from the said term till payment, and with expenses; and (2) of the like sum of £14 sterling, being the half-year's rent thereof, to become due and payable at Whitsunday next 1899, with interest as aforesaid from the said term of Whitsunday.”

Armour lodged answers, in which he stated that he had been compelled to remove owing to the damp and unhealthy state of the house; and pleaded—“(1) The pursuers having failed to keep the house tenanted by the defender suitable for his occupancy are debarred from suing for rent, and the defender should be assoilzied, with expenses. (2) The defender having been compelled to remove from the house owing to its condition, as condescended on, pursuers are not entitled to recover rent therefor, and defender should be assoilzied, with expenses.”

A proof was taken, the import of which is fully stated in the note to the interlocutor of the Sheriff-Substitute, infra.

On 14th February 1899 the Sheriff-Substitute ( Henderson) pronounced the following interlocutor:—“Finds in fact (1) That the defender originally became tenant of the pursuers' house, No 21 Queen's Crescent, Cathcart, as at Whitsunday 1895, and that he renewed his tenancy from year to year, and at Candlemas 1898 he re took the house until Whitsunday 1899; that some six months after entering into occupation of the house at Whitsunday 1895, the defender complained to Mr Hitchcock, the clerk in pursuers' factor's office who had charge of the letting and management of the house, that the house was damp and had a smell in it; (3) that certain slight operations in the way of supplying larger ventilating gratings than before existed, were carried out in the course of the following six months on behalf of the pursuers; (4) that matters continued much in the same way during the two subsequent years of the defender's occupation of the house, during which time defender, by himself or his wife, complained of dampness, smells and a defective vent in the parlour, to Mr Hitchcock, and also by writing to and calling upon Mr Munro, pursuers' factor; (5) that in February 1898, when he was retaking the house for another year, the defender again complained to Mr Hitchcock of dampness in the house, when a promise was given that the house would be put right, but that until the dates subsequently mentioned nothing was done; (6) that towards the end of August or beginning of September 1898 the defender and his wife became aware that the dampness and the offensive smell were becoming more marked in the house—particularly in the parlour where the defective vent was—and as both defender and his wife, but more especially his wife, had been suffering from illness, which their family doctor, Dr Murray Lyon, assured them was attributable to, or at all events aggravated by, the state in which the house was, the defender went to Mr Hitchcock and stated that unless the house was put in order at once he had resolved to leave it; (7) that on 9th September defender signed a printed form permitting the factor to endeavour to sub-let the house for the period between Martinmas and Whitsunday; (8) that on 14th September the house and space below it were visited and inspected by Mr Hitchcock and a mason on behalf of the pursuers and more and larger gratings put in below the flooring; (9) that on 19th September the house and cellars were inspected by Mr Ross, the sanitary inspector at Pollok-shaws, who found ‘the house musty and damp, and I felt a distinct smell of dry rot,’ and stated that it was dangerous to health; (10) that subsequent inspections were made of the house by experts and others on behalf of the pursuers and defender respectively, including the Medical Officer of Health for Renfrewshire, and for the Oath-cart Parish Council, the result of whose evidence—as explained in the subjoined note—is that, in my opinion, the house was not in a fit state for habitation in the end of September and beginning of October; (11) that the pursuers' factor having persisted in stating that after more and larger gratings had been put in and the vent in the parlour made to draw (which was not until after 29th September) nothing more

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required to be done, and not expressing any intention of carrying out any more improvements on the house, the defender, on or about 17th October 1898, removed himself, his wife, and son from the house, under the advice of his family doctor—who had also inspected the space below the house: In these circumstances, and for the reasons given in the subjoined note, Finds in law that the defender was entitled to leave the pursuers' house, and that he is accordingly not liable in the half-year's rent from Martinmas 1898 to Whitsunday 1899 now sued for: Finds, however, that the defender is liable to the pursuers in the quarter's rent from Candlemas to Martinmas 1898, being £7 sterling: Grants decree against the defender for the said sum of £7 sterling: Finds the defender entitled to three-fourths of the expenses incurred by him in the action: Allows an account thereof to be given in, and remits,” &c.

Note.—“This is a somewhat narrow case—at all events, I am not aware of any case where a tenant has been held justified in leaving a house in circumstances where although he and his family had suffered in health, it had afterwards been discovered that the condition of the house was remediable without great expense being incurred, or long delay necessary to carry out the improvements. The circumstances of this case, however, are peculiar. In the first place, it is proved, I think, by the defender, his wife, and Mrs Henderson (a tenant in the same crescent and under the same factor), that apparently complaints about houses made to Mr Hitchcock are seldom, if ever, listened to, and even if they are listened to, what is complained of is not attempted to be put right except after long and unreasonable delay. Secondly, there can be no doubt that it has been distinctly laid down in the Court of Session that where a tenant is aware of a defect of a serious nature in the house occupied by him he cannot recover damages for any loss or injury which he may incur through that defect unless he removes from the house— Henderson v. Munn, July 7, 1888, 15 R. 859, and Webster v. Brown, May 12, 1892, 19 R. 765.

Assuming these two propositions to be correct, look at the extremely awkward position in which the defender was placed. He had an experience of upwards of three years to the effect that his complaints about defects in this house were either disregarded altogether or only the most perfunctory efforts made to remedy the defects. On the other hand, he finds his own health, and more particularly the health of his wife, affected while living in the house, and he is warned by his family doctor that it is the state of the house that thus injuriously affects their health. He and the doctor go down to the space below the house, and the doctor assures him it is in an insanitary condition. What is a man to do under such circumstances? He makes a renewed complaint and is met by larger gratings being inserted and a denial of any insanitary conditions.

I must say that I think under the circumstances he had no choice except to take another house and move into it.

It is argued for the pursuers that the defender was too hasty in leaving his house, as they were prepared to put everything right. But what confidence could he have in people who denied any fault and yet pretended to be ready to amend anything complained of?

It must be borne in mind, also, that no serious steps were taken, in spite of defender's giving up the house on 9th September, until the sanitary authorities had reported against the house on 23rd and 29th September.

Of course this view of the defender's rights in the circumstances depends entirely upon whether there were reasonable grounds for his doctor's opinion as to the state of the house and its effect upon the health of the family. I put aside in the meantime all question as to injury to furniture, for which at present nothing is claimed, but into the state of which some inquiry must he made in order to find out the truth of the evidence.

As usual in cases of this sort, the evidence, especially of professional men and experts, is most contradictory.

A little analysis of the evidence of the doctors, however, goes a long way to help to a satisfactory conclusion as to the true facts. Dr Murray Lyon had already diagnosed the cause of his patient's illness before he descended into the space below the house.

Dr Chalmers and Dr Brown, who certainly take a most favourable view of the state of the house, never troubled themselves to go down below, and while they each admit a slight musty or damp smell, the one attributes it to open windows, while the other says it arose from shut ones. On this point a piece of real evidence comes in with rather striking effect to shake the optimistic view which these gentlemen take of the house. If the house was in the state of dryness and perfection to which they speak, how is it that, entirely unprompted, the vanman James M'Graw, who took away the carpets and rugs to be cleaned, added to his receipt for them ‘damp and smelling?’ This report is also supported by the letter from the laundry.

Dr Campbell Munro's evidence is as carefully given as the statement of a professional man in such a responsible position as he holds ought to be; but uncoloured as it is, I cannot help thinking that he would have approved of the defender leaving the house when he did.

The sanitary inspectors are all practically at one, and all diagnose dry rot, and believe dry rot to be injurious to health.

The pursuers' witnesses, with the exception of Dr Campbell Munro and M'Kinlay, appear to me to have attempted to make out too good a case. According to them there was absolutely nothing to be said against the house.

The witnesses for the defender on the other hand, who, unlike the pursuers' witnesses (exclusive of the medical men), are all independent, distinctly depone to an

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extremely unpleasant if not actually seriously dangerous state of the house, such as would justify a tenant leaving it, if the objectionable elements were not at once removed.

In these circumstances it appears to me that this case must be decided, not upon what has been done to the house while or after the defender was leaving it, but by what must be held to have been his reasonable belief at the time when he did leave.

If I am right in thinking so, then my opinion is, that looking to the treatment which he had learned to expect from his factor, the discomfort and ill-health from which he and his wife were suffering, and he strongly expressed opinion of his family doctor, this defender was entitled to leave this house when he did.

I cannot, however, liberate him from his original proposal to pay the quarter's rent up to Martinmas. This, unfortunately, affects the question of expenses. I doubt, however, if his position on record as regards the quarter's rent went far in making the pursuers go on with the action, and certainly it did not affect any of the evidence which was adduced.

As, however, the defender has been unsuccessful as regards a third of the subject-matter of the action, it seems only just that he should be mulcted in some of his expenses.

I have accordingly only found him entitled to three-fourths thereof.”

On 17th April 1899 the Sheriff ( Cheyne) pronounced the following interlocutor— “Sustains the appeal: Recals the interlocutor of the Sheriff-Substitute of date 14th February last: Finds, in fAct —(1) That in February 1898 the defender retook for a year from Whitsunday then ensuing, at the rent of £28 payable quarterly, a ground floor house at 21 Queen's Crescent, Cath-cart, which he had occupied under the pursuers since Whitsunday 1895; (2) that while at various times during his tenancy the defender complained to the factor that the house was somewhat damp and had a bad smell, no serious inconvenience appears to have been felt by him till last summer, when the dampness and smell became, particularly in the parlour, more marked, and indeed intolerable; (3) that about the middle of last September, being advised by his doctor that his wife's health was suffering from the condition of the house, the defender intimated to the factor that he did not intend to pay rent beyond Martinmas, and authorised him to endeavour to sub-let the house as from that term; (4) that while willing to assist in finding a sub-tenant (which, however, he was unsuccessful in doing), the factor disputed the defender's right to abandon the house, and in the latter part of September and beginning of October he had some additional ventilating gratings put in below the house, and also had an obstruction which had been preventing the parlour chimney from drawing properly, removed; (5) that the operations just mentioned greatly improved the condition of the house, and would probably have obviated all ground of complaint; but without waiting to see the effect of them, the defender removed from the house on 17th October; (6) that the defender has failed to prove that the house was at the date of his removal from it not in a tenantable condition; (7) that this petition for sequestration was presented on 17th October, but by arrangement the sum concluded for being a year's rent, was consigned by the defender in the hands of the Clerk of Court, and in consequence of that the warrant to sequestrate was not executed; and (8) that it is admitted by the pursuers that they were in error in concluding for a full half-year's rent, the defender having on 19th August last paid the rent for the first quarter of the current year: And as the legal result of these findings—Finds that the defender is now liable for ( a) The sum of £7 sterling, with legal interest thereon from the term of Martinmas last till paid, and ( b) the sum of £7 sterling, with legal interest thereon from 15th February last till paid, and that he will, on 15th May next, be liable in another sum of £7 sterling, being the quarter's rent which will then become due: Grants warrant to and authorises the Clerk of Court to make payment to the pursuers or their agent in terms of the foregoing finding out of the consigned money: Finds the defender liable in the pursuers' expenses as these may be taxed on scale 1: Allows the pursuers to give in an account of their expenses framed in that scale; and remits,” &c.

Opinion—“Owing to the extremely contradictory character of the evidence, the case is a most unsatisfactory one to dispose of, and it is impossible for me—especially as I have the misfortune to differ from the learned Sheriff-Substitute—to feel much confidence in the correctness of the opinion which, after full and anxious consideration, I have formed, and which is adverse to the defender.

I may remark at the outset that I am with the defender up to a certain point, for I consider it to be proved that he had, in the middle of September last, serious and well-founded ground of complaint, and if nothing had been done to remedy matters before he left the house a month later, my verdict would certainly have been in his favour. The issue in the case, however, is whether the house was in an untenantable condition at the date when he abandoned it, and that issue I find myself unable to affirm.

In the view which I take of the case it is important to notice that the witness Hyslop, who rented the house from 1887 to 1890, and again for the year preceding the defender's entry to it in 1895, found no occasion to complain of it being damp; and it has further to be kept in mind that the defender, while now and again complaining of it being somewhat damp and having a musty smell, does not appear to have suffered any serious inconvenience, or to have thought much of the matter during the first three years of his tenancy, and that it was only during last summer that the damp and smell began to be intolerable. In these circumstances one is led to inquire

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what it was that produced the access of dampness and increase of smell which suddenly manifested themselves at that time, and one is, moreover, inclined to suspect that they were produced by some special cause which did not exist previously. Now, the theory presented by the defender and his witnesses is, that the cause is to be found in the state of the ground below the house, which, it is stated, was damp and littered with rubbish, such as rotten chips of wood, and in the fact that a few of the uprights in the basement upon which the joists rested had a fungoid growth—called by some of the witnesses ‘dry rot’—visible upon them. The dry rot, however—if it was dry rot—appears to have been inconsiderable in amount, and when I find Mrs Armour (defender's wife) candidly admitting that, though her carpets were damp, the wooden floors on which they had lain were apparently dry—a statement which is corroborated by Drs Chalmers and Brown—and observe that a well-known sanitarian like Dr Campbell Munro evidently attached little importance to the condition of the basement as seen by him on 28th September (by which time, however, the additional ventilators had been put in), I have a difficulty in holding that the damp and smell with which the defender was troubled last summer, and which were admittedly most felt in the parlour, came up to any material extent from below, more especially as the proof discloses, as it seems to me, another cause to which they may equally well be attributed, and which did not exist previously. The cause I refer to is the substitution by the defender of a coke fire for a gas fire in the parlour. It is certainly somewhat remarkable that this change, which was made because the gas fire did not give out enough heat, and which, I need hardly say, the defender was quite entitled to make, was nearly synchronous with the marked increase in the damp and smell, and keeping in view that the parlour vent was then obstructed, I believe that it is quite sufficient to account for that increase. But so far as attributable to that cause, the mischief would be cured by the removal of the obstruction which had, apparently for years, kept the parlour chimney from drawing, and from serving, as it should have done, as a ventilating shaft to the room, and we have it from Mr Armour that the men sent by the factor found that the obstruction was caused by a slate which was lying across the chimney-head, and which they of course took away. Mrs Armour says that the men were at the vent two or three days before she and her husband left the house, but Mr Hitchcock states that it was on 3rd October that the vent was put right, and if the latter be the true date one can quite understand how at their visit on 15th October Drs Chalmers and Brown found almost no sign of damp and not much smell in the house, and, in fact, the evidence of these gentlemen may be taken as confirmatory of the view that the nuisance experienced during the summer was due mainly to a temporary cause which had ceased, owing to the clearing of the chimney, to operate. Altogether, the impression left upon my mind by a careful study of the evidence is, that the opening up of the parlour vent, assisted to some extent perhaps by the action of the additional ventilators which were put into the basement towards the end of September, was sufficient to restore the house to a tenantable condition, and accordingly, while I say nothing against the view that the defender may possibly, as a husband, have been right in declining to allow his wife to remain in a house in which her health had suffered, I cannot hold it proved that the house was, on 17th October last, in such an insanitary or untenantable state as to justify him, in a question with his landlord, in abandoning it.”

Armour appealed to the Court of Session, and argued—The obligation of the landlord was to provide a habitable house, and if he failed to do so the tenant was entitled to treat the contract of lease as rescinded, and to remove from the house and refuse to pay the rent— Kippen v. Oppenheim, Dec. 13, 1847, 10 D. 242; Campbell v. Lord Wenlock, 1866, 4 F. & F. 716; Scottish Heritable Securities Company v. Grainger, Jan. 28, 1881, 8 R. 459. Here both the Sheriff-Substitute and the Sheriff had found that the house was uninhabitable when the tenant left. That being so, the onus is on the landlord to prove that the defect was easily remediable, and that he was prepared to remedy it. Here he had not shown any such intention, in fact the factor's letter of 19th September 1898 (quoted supra) took up the position that there was nothing seriously wrong with the house. When that attitude was taken up on behalf of the landlord, and the tenant was advised by his doctor that it would be dangerous to his health to remain in the house, his only reasonable course was to remove. (2) There was no reason why the defender should not have the full expenses of process.

Argued for the respondents—On the facts it was not proved that the house was uninhabitable when the tenant removed. Even on the assumption that it was uninhabitable, it was clear that the defect was one which could be readily and easily cured, and the tenant was bound to have given intimation to the landlord, and to have waited a reasonable time to see if the matter would not be put right— Allan v. Markland, Dec. 21, 1882, 10 R. 383, per Lord Shand at p. 389; Webster v. Brown, May 12, 1892, 19 R. 765, per the Lord Justice-Clerk at p. 767.