Scottish Court of Session Decisions

Archibald M'lntyre M'Donald, as commissioner for the Earl of Crawford, brought

Page: 698↓

an action in the Sheriff Court at Aberdeen against William Anderson Kydd, in which he craved decree for the sum of £40, 15s., being a half—year's rent of the farm of Tillyboy, occupied by the defender.

By lease dated in April 1897, the pursuer, as commissioner for the Earl of Crawford, proprietor of the lands of Echt, let to the defender the farm of Tillyboy, part of said lands, for a term of nineteen years, at the yearly rent of £81, 10s. The lease contained the following clause:—“Further, in respect the proprietor has put the roof of the barn and the whole other buildings on the farm in habitable condition and repair, the said William Anderson Kydd binds and obliges himself and his foresaids to keep the whole houses during the currency of this lease in habitable condition and repair, and to leave them in the like condition at the expiry thereof, ordinary tear and wear excepted.”

In 1899 the Earl of Crawford sold the lands of Echt, including the defender's farm of Tillyboy, to Mr Pirie, with entry at Whitsunday 1899. Mr Pirie entered into possession at that date, and intimated to the defender that he would not take over the farm as in habitable condition and repair in terms of his obligation under the lease, and the defender thereupon retained the half-year's rent due to the pursuer at Whitsunday 1899, amounting to £40, 15s., on the ground that the repairs to the barn and farm buildings mentioned in the lease had not been executed.

The pursuer thereupon raised the present action, and averred that he had implemented all his obligations under the lease.

The defender denied this, and averred—“That although the said lease of the said farm of Tillyboy bears that ‘the proprietor has put the roof of the barn and the whole other buildings on the farm in habitable condition and repair,’ these repairs had not, as a matter of fact, been then performed, but were to be performed before or at defender's entry to the said farm, nor, with the exception of certain repairs on the roof of the byre, have any of them been done yet. Averred, in particular, that the roof of the barn and stable on said farm—which are one continuous building—is so dilapidated, and the floors of the lofts of said premises are so worn, as to render the said premises unfit for occupation or use; and averred further, that the hen-house and water-closet on said farm are also so dilapidated as to be practically of no use to the defender. The pursuer has been called upon to carryout the repairs necessary to put the buildings on the farm into habitable condition and repair, but he has failed to do so. The defender has all along expressed his willingness to pay the rent now sued for on these repairs being executed, and has consigned the sum sued for in the hands of the Clerk of Court.”

The defender averred further that he had during his tenancy made repeated applications to the pursuer to execute the said repairs, but that the pursuer had failed to do so.

The pursuer averred, and it was not disputed, that the defender had regularly paid all the rents due under the lease except the half-year's rent now sued for.

The pursuer pleaded—“(1) The sum sued for having become due by the defender in terms of his lease at Whitsunday last, the pursuer is entitled to decree as craved.”

The defender pleaded—“(1) In respect the defender has not got possession of the entire subjects let to him under the said lease, he is entitled to retain the rent now sued for until such possession is given to him. (2) The pursuer having failed to implement his obligations under the said lease, is not entitled to insist on the performance by the defender of the counterpart of these obligations.”

After sundry procedure, the pursuer lodged a minute in which he admitted that the repairs contemplated by the parties had not been carried out at the date of the lease, but stated that he had, after that date, put the buildings into habitable condition and repair so far as he was bound to do. He further offered to execute certain other repairs which he had promised the defender to do in addition to those which he was bound to do under the lease.

The defender lodged answers to the pursuer's minute, in which he refused to accept the pursuer's offer of repairs, which he averred would not suffice to put the buildings in habitable condition and repair in fulfilment of the pursuer's obligations.

Proof was allowed and led. The import of the evidence, so far as material, is set forth in the interlocutor of the Sheriff.

On 16th October 1900 the Sheriff-Substitute ( Robertson) pronounced this interlocutor:—“Finds (1) that defender is tenant of the farm of Tillyboy, which up to Whitsunday 1899 was the property of the Earl of Crawford, the pursuer being the said Earl's factor and commissioner, with power to sue for rent due; (2) that the half—year's rent of said farm due at Whitsunday 1899 amounted to £40, 15s., and that the said half-year's rent is still unpaid by defender; (3) that defender avers and pleads, but has failed to prove, that for the period to which the said half-year's rent is applicable he did not get possession of the subjects let to him, or that the proprietor failed to implement his obligations to him under his lease: Finds therefore that said rent is due and payable, and decerns therefor with interest in terms of the conclusions of the action,” &c.

The defender appealed to the Sheriff ( Crawford), who on 18th December 1900 pronounced this interlocutor:—“Sustains the appeal: Recals the interlocutor appealed against: Finds in terms of the first and second findings in the said interlocutor: Finds (3) that the lease is for nineteen years from Whitsunday 1897; (4) that by the lease the pursuer was bound to put the roof of the barn and the whole other buildings in habitable condition and repair; (5) that the defender was bound, on this being done, to keep them in the same condition and repair during the currency of the lease, and leave them in the like condition at the expiry thereof; (6) that the barn and stable wing and hen-house and earth-closet were

Page: 699↓

not in habitable condition and repair at the defender's entry, and that nothing has been done to put them in repair; (7) that the pursuer has offered to execute certain repairs mentioned in the minute of tender; (8) that the said repairs would not be sufficient to put the buildings into habitable condition and repair; (9) that the estate has been sold, and the new proprietor has intimated to the defender that he holds him responsible for those buildings not being in habitable condition and repair: Finds in law (1) that the pursuer is bound to put the said buildings in habitable condition and repair; (2) that the defender is entitled to retain the said rent until that is done: Therefore dismisses the action, and decerns: Finds the defender entitled to expenses,” &c.

The pursuer appealed to the Court of Session, and argued—The judgment of the Sheriff was wrong. A tenant was not entitled to retain his rent unless he could establish a claim of damage of an amount equal to the sum retained, and the defender had established none— Munro v. M'Geochs, November 15, 1888, 16 R. 93; Stewart v. Campbell, January 19, 1889, 16 R. 346; Kilmarnock Gas Company v. Smith, November 9, 1872, 11 Macph. 58; Broadwood v. Hunter, February 2, 1856, 17 D. 340; Hardie v. Duke of Hamilton, February 2, 1878, 15 S.L.R. 329. In any view, the defender had paid his rent without complaint for over two years, and must be held to have discharged any claim he might have had.

Argued for the defender and respondent—The defender did not rest his right to retain his rent on the ground of damage, but on the ground that the landlord had failed to implement his part of the contract, viz., to put the subjects let in habitable condition. The tenant's right to retain the rent on that ground was recognised by the later decisions— Munro, supra; Stewart, supra; Gray v. Benton, December 10, 1840, 3 D. 293; Guthrie v. Shearer, November 13, 1873, 1 R. 181; Johnston v. Hughan, May 22, 1894, 21 R. 777, per Lord Adam. The evidence established that the pursuer had not fulfilled his obligation. The defender maintained further that the evidence did not show that he had discharged his claim to have the buildings put in tenant—able repair.