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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> British Linen Co. v. Purdie [1905] ScotLR 42_709 (07 July 1905) URL: http://www.bailii.org/scot/cases/ScotCS/1905/42SLR0709.html Cite as: [1905] ScotLR 42_709, [1905] SLR 42_709 |
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Page: 709↓
[Sheriff of Ayr.
Certain premises were let to be used as a shop in connection with the tenant's business of draper and milliner. Held that the erection of show cases by the tenant, and their attachment to the outside wall, was not such a reason
Page: 710↓
able use of the premises let as to be impliedly authorised by the lease.
This was an action raised in the Sheriff Court at Ayr by the British Linen Company Bank against Miss Janet Goudie Purdie, draper and milliner, 119 High Street, Ayr.
The defender was the pursuers' tenant under a ten years' lease of her shop at 119 High Street, Ayr, which formed part of the pursuers' bank buildings.
The defender's lease provided, inter alia, as follows, viz.—“That the said subjects hereby let shall be used by the said Janet Goudie Purdie as a shop in connection with the carrying on of her business of draper and milliner, and for no other purpose.”
The pursuers sought to have the defender ordained to remove two show cases which she had fixed on the front wall of the shop referred to, and to restore the front of the property to the condition in which it was before her interference therewith.
The mode in which the show cases were fixed to the wall is disclosed in the interlocutor of the Sheriff-Substitute infra.
The pursuer pleaded — “The defender having interfered with the outside walls of the property of the pursuers as libelled, she is bound to remove said show cases, and to restore the walls to the condition in which they were prior to her interference.”
The defender pleaded—“(2) The defender having, in accordance with custom of trade, a right to erect show cases on the outside walls of her shop, the petition should he dismissed, with expenses. (3) The defender being entitled to the full use and enjoyment of her premises, leased by her from the pursuers, and no infringement of the terms of the lease having been committed, she is entitled to absolvitor, with expenses.”
Proof was led, the import of which, for the purposes of this report, is sufficiently disclosed in the findings in fact in the following interlocutor granting decree in terms of the prayer of the petition, pronounced by the Sheriff-Substitute ( Shairp) on 20th December 1904, viz.—“The Sheriff-Substitute, having heard parties' procurators and considered the cause, finds in fact (1).…, (2) That, without the consent of the pursuers, the defender, on or about 15th June 1904, erected the two show cases in front of said premises of the size and in the position detailed on (a plan lodged in process), and that she has so maintained them since the foresaid date without the consent of the pursuers: (3) That each of the defender's show cases is attached by screw nails to two holdfasts driven into the concrete pavement in front of the premises in question, and that at the top each show case is held in position by attachment to a metal pin about-half an-inch in diameter inserted inward for a distance of about two inches between the stones of the channelled ashlar front of the butts belonging to the pursuers, as shown on plan referred to: (4) That no general custom of trade has been proved to exist in Ayr under which tenants are in the habit of erecting show cases, in such positions as the defender's cases, and with similar attachments, without the consent of the proprietors of the respective subjects. Finds in law that in these circumstances the defender was not entitled originally to erect the said show cases with such attachments in the position in which they stand without the consent of the pursuers, nor is she now entitled so to maintain them without such consent. Accordingly ordains the defender within fourteen days from this date to remove the two show cases described in the prayer of the petition, and to restore the front of the property belonging to the pursuers to the condition in which it was prior to the defender's interference therewith, and …”
The defender appealed to the Sheriff, who adhered, on 6th April 1905.
The defender appealed to the Court of Session, and argued—The defender was only making reasonable use of the premises let, and all reasonable uses were authorised by the lease—Rankine on Leases, 2nd ed. 225; Stirling v. Strang, February 26, 1857, 19 D. 568; Keith v. Reid, June 16, 1870, 8 Macph. (H.L.) 110, 7 S.L.R. 659. Section 159 of the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), relied on by the pursuers, did not affect the present question—Burgh Police (Scotland) Act 1902, section 381, subsection 49, M'Millan v. Bennet, February 2, 1895, 22 R. (J.C.) 23, 32 S.L.R. 295.
Argued for the respondents—The erection of the show cases in question was not such a reasonable use of the premises as could be held to have been in the contemplation of parties in entering into the lease—Dickson on Evidence, 1093— Brown v. M' Connell, June 7, 1876, 3 R. 788. In the absence of consent obtained in terms of the Burgh Police (Scotland) Act 1892, section 159, the erection of show cases was prima facie unlawful, and the pursuers might be held liable for the wrong done; therefore, apart from injury to their property, the respondents were entitled to decree.
Page: 711↓
The bank has brought this action for the removal of these show cases, and the prayer of the petition is “to ordain the defender to remove two show cases which she has fixed on the front walls of the shop No. 119 High Street, Ayr, of which the pursuers are the proprietors and the defender is the tenant, and to restore the front of the property belonging to the pursuers to the condition in which it was prior to the defender's interference therewith.” Both the Sheriff-Substitute and the Sheriff have given decree in terms of the prayer of the petition. The case which the learned Sheriffs had to consider was entirely based on custom of trade, and the plea to that effect is the second plea for the defender, which is, “The defender having, in accordance with custom of trade, a right to erect show cases on the outside walls of her shop, the petition should be dismissed with expenses.” The learned Sheriffs have found that the defender has failed to prove her averment of custom of trade. The defender's counsel here, feeling that it would be difficult to maintain that plea, has given it up, and has fallen back on the argument that this was reasonable use of the premises let, and so impliedly allowed by the lease, and he has used the evidence to show that this was a reasonable use to make of the outside wall. This new argument must rest on the proposition that, when erections attached to the outer wall of the premises let are found to be useful and convenient to the tenant, and not materially injurious to the landlord, they are therefore within the lease, and impliedly authorised by it. I find myself unable to assent to that proposition. I do not say there might not be such attachments. For instance—and this is probably the instance which would occur to everyone—a signboard bearing the name of the shopkeeper, is so universally recognised as part of the equipment of a shop, that the law would hold it to be authorised by implication. But that is not the case here. The defender's witnesses do not say that the show cases were necessary for the shop, but merely that they were convenient. If that is all that can be said in their favour I do not think we can hold that there is any implication that the tenant may thus interfere with the outer structure of the building without the consent of the landland. On this ground I concur with the conclusion to which the Sheriffs came.
I am not prepared to say that she can put up these show-cases. There is no authority to the effect that she can. But I am very averse to saying that she cannot.
The
The Court dismissed the appeal and affirmed the interlocutors appealed against.
Counsel for the Pursuers and Respondents— M'Clure, K.C.— G. C. Steuart. Agents— Mackenzie & Kermack, W.S.
Counsel for the Defender and Appellant— Deas—Spens. Agent— J. A. Kessen, S.S.C.
