Scottish Court of Session Decisions

A submission was entered into between John Logan, outgoing tenant of the farm of Legerwood, Berwickshire, John Lowson junior, residing at Beechhill, Forfar, proprietor of the farm, and Hugh Macpherson Leadbetter, Westerhouse, Gillsland Road, Edinburgh, incoming tenant of the farm, dated 11th, 13th, and 14th May 1886, in regard to, inter alia, the value of the waygoing crop upon the farm. The arbiters chosen were Thomas Henderson, farmer, Darlingfield, by Kelso, and John Thompson, farmer, Baillie-knowe, near Kelso. They on 20th May 1886 appointed Robert Kay, auctioneer, as their oversman.

Notes of the arbiters' award were issued on 14th September 1886 and 29th April 1887, the latter of which are alone important. The arbiters found, inter alia, that the value of the waygoing crop was £1068, 3s. 4d., and a relative statement was appended showing how this was arrived at. The parties were allowed four days after receipt of a copy of the notes to lodge objections.

On 10th May 1887 Mr Logan wrote to the arbiters to reconsider their decision. The arbiters having considered this letter, along with the oversman, by a finding dated 18th May 1887 altered the, previous award to the extent of giving Mr Logan £16, being the amount of 10 acres of crop which had been understated. Quoad ultra they confirmed the previous award.

On 3d June 1887 objections to the award, as regarded the value put on the waygoing crop, were put in by Mr Logan's agent. These objections may be classed under three heads, viz.—(1) That the deduction for bad weather was too high; (2) that the prices allowed for oats and barley were too low; and (3) that the working expenses were too high. The arbiters were craved to allow Mr Logan a proof in support of these objections.

The arbiters fixed a meeting for 10th June 1887 to consider the motion contained in the objections for Mr Logan. Mr Logan's agent wrote that owing to a prior engagement he could not attend the meeting. He asked, however, that if proof was not to be allowed the meeting should be postponed for a week, so that he could support his motion for a proof by argument. The arbiters and oversman held their meeting on 10th June 1887. The minute of meeting bore, inter alia—“The arbiters, after consulting the oversman, who has been present at all their meetings, resolved to refuse Mr Logan's motion for proof, on the ground that they already know from their own experience the whole facts that could be submitted, and that it is therefore unnecessary.”

The decree-arbitral was pronounced on 17th June 1887, embodying the findings previously referred to.

The present action of reduction was raised on 1st July 1887 by Mr Logan against Mr Leadbetter, and Mr Lowson junior, for his interest, to reduce and set aside the decree-arbitral so far as regarded the valuation of the waygoing crop.

The pursuer averred—“(Cond. 8) During the whole proceedings of the reference no written claims for the parties were given in or ordered, and parties were not heard. No proof was led as to their respective claims. The inspection made by the arbiters was not such as could enable them to ascertain and fix fairly and accurately the value of the crops. Only one of the arbiters saw the crops after being cut, and the other was therefore wholly unable to judge of their value, or of the amount of deduction that should be made.”

The defender stated in answer—“(Ans. 8) Admitted that no claims were lodged, and explained that in regard to the waygoing crop no claims were necessary, as the only question was what sum the defender was to pay to the pursuer for said crop, and the submission stated this specifically. Further, in respect that the submission was merely a reference for valuation of waygoing crop to skilled farmers belonging to the district, neither proof nor hearing of parties was necessary or intended. In accordance with usual practice in such cases, the arbiters inspected the crop when nearly ready for the sickle, with a view to ascertain the probable number of bushels per acre which each field of grain would in their opinion yield, and that at a second meeting after harvest, applying their own experience of the effect of the weather during harvesting, and knowledge of the state of the markets, and of other circumstances affecting the value, they fixed the price which in their opinion the crop was worth to the waygoing tenant. They were accompanied by the oversman, but as they did not differ in opinion phis assistance was not called in, except as mentioned in answer 11 (i.e., as stated in the minute of 10th June 1887, supra). Quoad ultra denied.”

The pursuer pleaded—“(1) The proceedings in

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the said submission and reference haying been irregular, and the arbiters having acted in a wrongful and unjust manner, the said decreet-arbitral ought to be reduced. (2) In respect that the matters referred to the arbiters required investigation, and that they wrongfully and unjustly decided thereon without evidence tendered by the pursuer, the said decreet-arbitral ought to be reduced, or at least ought to be reduced in so far as it relates to the value allowed for the said waygoing crop.”

The defender pleaded—“(1) The statements of the pursuer are not relevant to sustain the conclusions of the summons. (2) The reference in question having been expressly to men of skill to make a valuation, they were not bound to allow the parties to lead evidence, and particularly to lead evidence on the points mentioned by the pursuer in his objections of 3d June 1887, nor were they bound to hear parties, and their procedure has therefore been competent and regular, and their award is valid.”

On 8th November 1887 the Lord Ordinary ( M'Laren) allowed the parties a proof of their averments.

The defender reclaimed, and argued—There was no relevant averment to go to proof at all, because the reference was simply to men of skill to value the crop. Objections were given in and considered by the arbiters, and that was quite as much hearing as was necessary. It was intended by the parties to the submission that the arbiters, being resident in the neighbourhood, should themselves examine the crop— Nivison v. Howat, Nov. 22, 1883, 11 R. 182; Wm. Dixon (Limited) v. Jones, Heard, & Ingram, March 19, 1884, 11 R. 739.

Argued for the pursuer and respondent—It was conceded that the pursuer could only maintain the Lord Ordinary's interlocutor to the extent of being allowed a proof that only one of the arbiters saw the crop after it was cut. Both the arbiters should have inspected the crop after it had been cut. One of the arbiters did not make the inspection of the crop which he was bound to do before he could form an opinion as to its value. All that was decided in Nivison's case, supra cit., was, that an award would not be set aside on the mere ground of irregularity.

At advising—