Scottish Court of Session Decisions

On 7th July 1905 Sir James Ramsay, Bart. of Banff, raised an action in the Sheriff Court at Perth against John Howison, farmer, Fingask, Errol, for payment of £157, 10s., being the half-year's rent payable at Whitsunday 1905 for possession to Martinmas 1904 of the moorland farm of Craighead, Alyth, belonging to the pursuer, of which the defender was tenant. The rent sued for had been retained by the defender against a larger sum of damage alleged to have been incurred in 1904 chiefly in respect of insufficient heather-burning. A counter action at the instance of Howison was raised on 21st September 1905, in which he claimed, inter alia, two sums of £100 each in name of damages said to have been incurred in 1904 and 1905 through the defender's failure to burn, in terms of the lease after mentioned, a sufficient quantity of heather. The rent in question was consigned in bank, and in the subsequent proceedings it was handed over to the landlord, the two actions were conjoined, and the questions between the parties were tried in the action of Howison v. Ramsay.

In that action the defender pleaded, inter alia—“(4) Defender having fulfilled his obligations to pursuer under said lease, should be assoilzied with expenses. (5) Pursuer not having suffered loss or damage in consequence of any failure to fulfil his obligations on defender's part, is not entitled to damages. (7) In any event, pursuer having paid his rent for the period of his possession up to Martinmas 1904 without specific reservation of any claim for compensation, cannot now maintain such claim so far as arising prior to said term of Martinmas 1904.”

Possession of the farm was taken by Howison at Martinmas 1895 on a verbal lease for nineteen years. No regular lease was ever executed, but in 1902 a draft lease was prepared and signed by both parties setting forth the conditions of the tenancy. The first half-year's rent was stipulated to be payable a year after entry, viz., at Martinmas 1896. The tenant regularly paid the rent down to Martinmas 1904, but declined to pay that falling due at Whitsunday 1905, being the rent due for the six months ending at Martinmas 1904.

By the lease in question Sir James let to his tenant the lands of Craighead, &c., “all as presently possessed by the said John Howison, … and that for the period of nineteen years from and after the term of Martinmas 1895, which, notwithstanding the date hereof, is declared to be the term of entry hereunder.”

With regard to heather-burning, the lease provided—“And with regard to heather-burning on the moorland of the farm hereby let, it is agreed upon, and the proprietor hereby undertakes, to burn, weather permitting (except during the statutory close time from the eleventh day of April to the first day of November), one year with another, one-twelfth part more or less thereof during each year of the lease, the said heather-burning to be carried out under the supervision of the proprietor's head gamekeeper, the tenant giving the assistance of his shepherds in connection therewith: Declaring that no heather shall be burned on the lands hereby let except as herein provided for, under the penalty of Two pounds sterling per imperial acre, and at that rate for any part of an acre, of additional rent.…”

The extent of the farm was not stated in the lease or proved, the tenant puting it at about 3000 acres, and Sir James at about 2700. It was agreed that about two-thirds of the total acreage was under heather.

On 26th December 1906 the Sheriff-Substitute ( Sym), after proof in the conjoined actions, pronounced an interlocutor containing the following findings:—“Finds in fact … (3) that prior to his ( the tenant's) obtaining entry the lands had been held by a Mr Ferguson, and that there had been a want of attention to sufficient heatherburning, and that there was consequently a good deal of old heather upon the lands, … (17) Finds with regard to heatherburning, that in the season 1896 a considerable amount of heather-burning was done. and the moor was partially broken up, and that in 1906, after the present dispute was going on, a considerable amount of heatherburning was done, but that in the intervening years, notwithstanding complaint and objection on the part of the tenant Howison, the landlord failed to perform, taking these years together, the obligation of burning one year with another one-twelfth of the heather each heather-burning season; (18) that the seasons of 1903 and 1904, and to a considerable extent that of 1905, were wet and unsuitable for heatherburning, but the other seasons between 1897 and 1902 were more suitable, and the obligation, making proper allowance for the bad years, was capable of fulfilment; (19) that the tenant has made payment of his rent down to that payable at Whitsunday 1905 (which he consigned in consequence of the dispute, and which has since been paid under warrant of Court) without reservation in the receipts; (20) that during the earlier years of the agreement the terms of the heather-burning obligation had not been adjusted, because for some time the landlord had objected to bind himself to any definite amount of muirburn,

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and that though this may have been earlier overcome … the draft lease was not adjusted and approved till 11th July 1902: … Therefore, with these findings of fact, Finds in law in the conjoined actions, (1) with regard to heather-burning, that the tenant is not disentitled, having regard to the nature of the obligation, the uncertainty for some years of its position owing to the landlord's action, and the manner in which it is to be fulfilled on an average of years, from seeking damages for its breach: Assesses the damages at £100… .”

Note.—“… The parties have caused serious difficulties about matters which ought to be plain. The contract between them was not adjusted till long after the possession of the farm was entered on. It still stands on an approved draft lease. Sir James Ramsay had so late as 31st December 1898 a strong objection to agreeing to any definite amount of muirburn. He wrote of that date—‘I will not sign any lease which binds me to a definite amount in each year,’ and ‘there are other clauses that I cannot accept.’ If one is to regard as settling the matter that copy of the draft lease on which Sir James founds, it could not have been till after the heatherburning season of 1902 that Sir James was induced to agree that a proportion of one-twelfth on an average should be burned each year. But perhaps before 1900 he had come round to agree to one-twelfth. On his part the tenant has not, all necessary allowance being made, so acted as to make his position safe. The acreage of the subjects let has never been agreed on. It was apparently not known to the tenant, who when he took the lease acted on his general knowledge of the place, and on an estimate of what stock he thought it would carry. A measurement has been made on the part of Sir James since the action was in Court. On what standard he and his advisers acted after he came to agree that one-twelfth of the heather be burned each year, as to the amount which should be burned in any year, it is not easy to say, unless it be that, as before that time, ‘it depends very much on the assistance you give my keeper.’

It may be said that in each year in which burning was possible some burning was done. Nearly always it was in small patches, which seems to be the practice on the Banff estate. In the first year (1896) a good deal of burning seems to have been done. The only year in which anything of a like amount was done, viz., 1906, requires, owing to the date of the litigation, to be excluded from consideration.

For the first few years, 1896 to 1902, the tenant could hardly make a stand. For an average of one year with another has to be considered, and besides there was no agreement as to what should be burned until after several years had run. Though the lease may now show what must be held to have been agreed upon at the beginning, the question is one of the tenant's conduct. He had no bargain on which to take his stand for a definite proportion. So he must for a time stand excused for not insisting, as a condition of paying rent, on one-twelfth being burned on an average.

In 1903 and 1904 there was no burning. But for these years the landlord stands excused. Burning was impossible to any serious extent, because a cycle of very wet years had begun. The year 1905, though a better year, was a wet year too. As has been said, an average has to be considered. It is thought that in 1905 it was not too late for the tenant to take up the ground of maintaining that he could withhold rent which had become due for possession in 1904 unless more heather-burning were done. Whether he could do so depends, of course, upon the facts. The Sheriff-Substitute is quite of opinion that it will not do for a tenant simply to complain or grumble, and at the same time make payment on clean receipts without reserving his claim. If he do so he may exclude himself from remedy, because he will have led his opponent to think that the claim is passed from and, most likely, to lose evidence which would meet it.…

A very careful consideration of the proof leads the Sheriff-Substitute to the opinion that the landlord has failed to fulfil the obligation to burn one-twelfth of the heather yearly, taking one year with another, and that this failure is chiefly applicable to the part of the farm lying north of a certain division fence.… His verdict on the whole proof is that the obligation has not been fulfilled, taking the years 1897 to 1905, and making allowance for the bad years. It is thought that the damages ought to be assessed on this head at £100. …”

Sir James appealed to the Sheriff ( Johnston), who on 16th February 1907 pronounced the following interlocutor:—“Recals the 17th and 18th findings in fact in the Sheriff-Substitute's interlocutor of 26th December 1906, and in place thereof finds in fact—(16) That having regard to the state of the weather in the years 1903, 1904, and 1905, and the amount of heather burned in 1906, no failure upon the part of the landlord to burn heather in accordance with the provisions of the lease is proved to have occurred subsequent to the spring of 1902; (17) that the tenant claims damages in respect of the failure of the landlord to burn sufficient heather in each of the years from 1897 to 1902 inclusive; (18) that the tenant paid his rent in full without demanding any reservation in the receipt or intimating any claim for neglect of heatherburning, down to the term of Whitsunday 1905, when he consigned the half-year's rent then due: Recals the first finding in law in the said interlocutor and the relative decerniture, and in place thereof finds that the tenant is barred by delay in intimating his claim from any claim of damages in respect of failure to burn sufficient heather: Assoilzies the landlord from the conclusions for damages in respect of insufficient heather-burning.…”

Note.—“The tenant entered into possession at Martinmas 1895. The formal lease was not executed until July 1902. The

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tenant maintains that the terms upon which he took the farm, as arranged between him and Mr Panton, the landlord's factor, were that one-tenth of the heather was to be burned annually, and that one-twelfth was ultimately substituted in the formal lease, reluctantly, on his part. The landlord's case I understand to be, that the question of what was to be the arrangement as to heather-burning was a matter of open negotiation down to the adjustment of the formal lease. I hold that the lease must be treated as speaking from the date of entry so far as fixing the landlord's obligation in the matter. But for the purposes of the present case I do not think that the date of execution of the lease can be altogether ignored. According to the Sheriff-Substitute's view of the evidence, with which I do not differ, there was no default on the landlord's part after the spring of 1902. 1903, 1904, and 1905 were bad seasons, and there was much burning in 1906. Accordingly, when the lease was signed all the failure which can be complained of had already occurred. But the lease, which is now appealed to as the record of the terms of the contract said to have been broken was executed without any intimation of a claim upon the tenant's part. That is a circumstance which cannot be altogether overlooked in determining whether the tenant waived his claim in respect of prior default. Under the lease the tenant is made liable in pactional rent throughout the tenancy for any heather burned by himself without the keepers. Prior to the date of the execution of the lease he had on three occasions so burned heather. It would not, I think, have been easy for the landlord, after signing this lease, without any intimation of a claim already accrued, thereafter to have insisted in a claim in respect of such bygone breach. Where two parties negotiate in a friendly way as to the adjustment of a lease, and then amicably sign the same when adjusted, it seems hardly consonant with what was the reasonable understanding of these parties at the time of such negotiation, adjustment, and execution, that, after the lease is signed, its terms should be appealed to to liquidate a claim for damages said to have been incurred before its date, of which claim no hint was given until after the lease was signed. However that may be, the tenant paid his rent until Whitsunday 1905 without reservation or intimation of such claim. At Whitsunday 1905, being three years after the last act of default (if there was default) on the part of the landlord, the tenant retained his rent and intimated a claim. According to the authorities on this branch of the law, this delay is a conclusive answer to the tenant's claim unless he can find some special circumstance which takes the case out of the general rule— Emslie's Trustees, 21 R. 710; Broadwood, 17 D. 340. The learned Sheriff-Substitute finds such circumstances, viz.—(1) The lease had not been finally adjusted until 1902. Now, it is perhaps somewhat difficult for the tenant to maintain, on the one hand, that the lease shall be treated as a record of the original contract, and as speaking from the date of entry, but that, on the other hand, his conduct during the intervening period shall be judged upon the footing that there was no obligation to which he could appeal. I am not disposed, however, to apply this strict logic in the matter. I proceed upon a more general ground. The tenant was not to burn heather himself, the landlord was to burn it, and to burn it to an extent to meet the reasonable requirements of good farming. That was a special point according to the tenant when he took the farm, and according to his own evidence that duty was being neglected between 1896 and 1902. But he intimated no claim, and made no reservation in paying his rent. The difficult about the adjustment of the lease might very well have justified a claim of merely a round sum, or it may be a claim or reservation of a still more general character. But I do not think that it was impossible or difficult for him to give the landlord clearly to understand that he was holding him responsible in damages for the neglect which he complains of. Further, there were five termly payments of rent after the lease was signed. There does not therefore appear to me to be anything in this aspect of the matter which interferes with the application of the principle upon which the Court proceeded in the cases above referred to; (2) the second specialty is that the obligation was to a certain extent ambulatory, ‘one year with another.’ There would be weight in this consideration if only one or two years were in question, but according to the tenant there had been default in six successive years, 1897–1902 inclusive, and thereafter, when the rent was paid without reservation, that default was irremediable, and the consequences of it were being felt by the tenant.

It is suggested that even if all claim is barred in repect of loss suffered before the tenant withheld his rent, still he is entitled to damages for loss suffered since that date in respect of prior default. But where there is action imputing waiver of claim after loss has begun to accrue, I think that this imports waiver of the whole claim in respect of the default. To hold otherwise would be inconsistent with the principle of timeous notice, upon which the cases proceed.

In the view I take of the law it is unnecessary, and would not indeed be proper, for me to determine the question whether there was default upon the part of the landlord. The evidence upon the matter, however, goes to confirm my conviction of the propriety of the rule which requires notice de recenti of claims of this kind. The amount burned in the immediately preceding years could in 1902 have been determined with an approximate precision which is now impossible, and other evidence now lost would have been available.…”

Howison appealed, and argued—The Sheriff was wrong in holding that the

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appellant was barred. The question of bar was one of circumstances. It was either a question of mora or of waiver, and neither had occurred here. The fact that the lease was not signed till 1902 was in the appellant's favour, for a tenant could not be held barred where, as here, he was not aware of the precise nature of his rights. On the other hand, it was irrelevant for the respondent to say that he (the respondent) was under no obligation prior to 1902. By signing the lease in 1902 he validated the prior verbal arrangement as to heatherburning. Moreover, the lease specially stipulated that the possession was to date from 1895, the date of entry. It was therefore probatio probata of the prior verbal agreement, and the respondent was bound under it from 1895 to burn a sufficient quantity of heather yearly. The appellant after 1902 had a good lease, not from 1902 but from 1895— Foulis v. M'Whirter, January 14, 1841, 3 D. 343—and had a definite obligation on which he could found, and to enforce which he had retained the rent. Prior to 1902, the obligation not being a definite one, he was not in a position to retain the rent, but he had all along protested and made complaints, and had been assured that the proper amount would be burned. A tenant who stayed on in such circumstances could not be held to have waived his claims. This was not a case like that of Broadwood v. Hunter, February 2, 1855, 17 D. 340, relied on by the respondent, where the tenant could be tightly held down. The specialties of this case prevented the rule as to “clean receipt” being applicable. Moreover, the rule in Broadwood was not an invariable one— Hardie v. Duke of Hamilton, February 2, 1878, 15 S.L.R. 329; Macdonald v. Johnstone, June 12, 1883, 10 R. 959, 20 S.L.R. 651; Johnstone v. Hughan, May 22, 1894, 21 R. 777, 31 S.L.R. 655; M'Donald v. Kydd, June 14, 1901, 3 F. 923, 38 S.L.R. 697. The case of Emslie v. Young's Trustees, March 16, 1894, 21 R. 710, 31 S.L.R. 559, also relied on by the respondent, was distinguishable, for there the estate had been sold three years before the claim was made. The damage here was not capable of being ascertained yearly. Its effect was cumulative, and might not be apparent for some years. That being so, a tenant could not be held barred by waiting till the damage had declared itself. The state of the moor was the best evidence that the heather had not been sufficiently burned. In that respect there had been no loss of evidence by delay. The question was one for hill-farmers.

Argued for respondent—The Sheriff was right in holding that the appellant was barred. Prior to 1902 the tenant had made no specific complaints, though there were numerous disputes as to ( a) the amount to be burned; ( b) who was to burn it; and ( c) the terms of the clause to be inserted. The appellant had made no specific claim prior to 1902. Prior to that year there was no obligation for breach of which he could claim. The obligation in the lease was not retrospective, for it was in de presenti terms. Esto that for certain purposes, e.g., possession, the lease was to date from 1895, for collateral purposes, e.g., heather-burning, it only dated from 1902. An improbative document did not supersede existing arrangements. The lease therefore was only binding from its date. Had the appellant stated the claim he now makes in 1902, as in fairness he ought to have done, the respondent would not have signed the lease, or if he had he would have stipulated that the obligation as to heatherburning should only apply to the future. The argument that prior to 1902 the tenant had nothing to waive cut both ways, and if he had nothing to waive the landlord could not be in breach, and there was no claim for damages. Alternatively if the tenant had a claim prior to 1902 he had waived it by signing the lease without reserving his claims. The damage should have been complained of at once. That was especially so when the damage was accruing yearly, and where the effect of it would be cumulative— Hunter v. Broadwood, February 2, 1854, 16 D. 441, at p. 450. Vague and general complaints were not enough; the complaint must be specific. The appellant had regularly paid the rent up to 1904, and “clean receipts” implied waiver— Broadwood v. Hunter, February 2, 1855, 17 D. 340; Baird v. Mount, November 19, 1874, 2 R. 101, 12 S.L.R. 88; Emslie v. Young's Trustees, March 16, 1894, 21 R. 710, 31 S.L.R. 559; Eliott's Trustees v. Eliott, June 7, 1894, 21 R. 858, per Lord Kinnear, at p. 866, 31 S.L.R. 753; Hamilton v. Duke of Montrose, July 5, 1906, 8 F. 1026, per Lord Kyllachy, at 1036, 43 S.L.R. 764. The cases of Macdonald v. Johnston, and Johnstone v. Hughan, cited by the appellant, proceeded on a different ratio, for in these cases the complaints made were specific. The appellant had further failed to prove any damage for which the respondent was responsible.

At advising—