Barrow v Isaacs
| Jurisdiction | England & Wales |
| Date | 1891 |
| Court | Court of Appeal |
Landlord and Tenant - Lease - Breach of Covenants - Right of Re-entry - Covenant not to assign without Landlord's Consent - Mistake - Forgetfulness - Equitable Relief against Forfeiture.
In a lease for years the lessees covenanted not to underlet the premises, or any part thereof, without the consent in writing of the lessor, which consent the lessor agreed should not be arbitrarily withheld in the case of a respectable or responsible person, and power to re-enter was given to the lessor in case the lessees did not well and truly observe and perform their covenants. The lessees underlet part of the premises without obtaining or asking for the lessor's consent. The underlease was prepared by their solicitor, who omitted to look at the head lease, and forgot that it contained the covenant not to underlet without consent. Both the lessees and their under-lessees were respectable and responsible persons, and no injury was done, or likely to be done, to the lessor by reason of the underlease, nor could he have had any valid objection to it if his consent had been asked. In an action by the lessor to recover possession of the premises for breach of the covenant:—
Held, that the omission to ask the lessor's consent was not a mistake in respect of which the Court would grant the lessees equitable relief against forfeiture for breach of the covenant, and therefore that the plaintiff was entitled to succeed in the action.
APPEAL from a decision of Day, J., giving judgment for the plaintiff in an action for the recovery of land.
The facts sufficiently appear in the head-note to this report, and they are fully stated in the judgments delivered by the Court of Appeal.F1 The arguments of counsel also sufficiently appear in the same judgments.
1890. Nov. 18, 19. Pollard, (R. Isaacs, with him), for the defendants.
Channell, Q.C. (H. A. Forman, with him), for the plaintiff.
[The following cases were cited in addition to those mentioned in the judgment of Kay, L.J.F1: Sear v. House Property and Investment SocietyF2; Treloar v. BiggeF3; West v. DobbF4; Hack v. LeonardF5; Wafer v. MocatoF6; Rose v. RoseF7; Eaton v. LyonF8; Sanders v. PopeF9; Bracebridge v. BuckleyF10; Bargent v. ThompsonF11; Hughes v. Metropolitan Ry. Co.F12; Gregory v. WilsonF13; Reynolds v. PittF14; Green v. BridgesF15; Job v. BanisterF16; Nokes v. GibbonF17; Shearman v. McGregorF18; Townsend v. CrowdyF19; Peachy v. Duke of SomersetF20; Willmott v. BarberF21; Rogers v. Ingham.F22]
1890. Dec. 19. LORD ESHER, M.R. In this case the plaintiff had let to the defendants valuable premises in the city of London, under a lease which contained a stipulation that the lessees should not underlet without the consent in writing of the plaintiff; and there was a right of re-entry for breach of any of the covenants in the lease. The plaintiff brings his action against the defendants claiming a right to re-enter under that stipulation. The defendants had underlet part of the demised premises. They had left the matter in the hands of their solicitor to prepare the underlease. The solicitor was at the moment away from his office — I believe out of London — and his clerk drew the underlease without looking at the superior lease, and he forgot the stipulation in the superior lease which required that the landlord's consent in writing was necessary to an underletting. That stipulation also provided, that although the consent of the landlord was necessary, he was not arbitrarily to refuse his consent. But, as the matter stood, his consent was never asked. It was argued by the defendants' counsel that the covenant not to underlet without the landlord's consent was a negative, not an affirmative covenant, and that therefore the stipulation for re-entry for breach of covenant did not apply. But I think that that proposition is disposed of because the word “observe” as well as “perform” has been put in the stipulation, though I doubt whether it was necessary to put that word in. However, the stipulation for re-entry, as it stands, clearly applies to a negative as much as to an affirmative covenant. There was also a discussion as to what was the meaning of the stipulation that the superior landlord should not arbitrarily refuse his consent. I take that to mean that he should not wholly unreasonably refuse his consent. In the present case the defendants were people of the highest class in the city of London. The sub-letting by them was to a person of nearly equal position in the city of London. No alteration of any kind was made in the premises. There was, therefore, nothing to be considered — at least, by any reasonable man, one would think — but the position of the sub-tenants. Here was a superior landlord having people of the highest class in the city of London liable to him for the whole rent, and here was a person of the utmost respectability who would have been offered to him as the sub-tenant. It is impossible, to my mind, to conceive that any reasonable man in the city of London could have made any objection to the sub-tenant, and I am perfectly certain that, if this plaintiff had been asked to give his consent at the time, it never would have crossed his mind to object to the sub-tenant in this case, and that the objection which he has taken since he found out the slip which had been made is either an afterthought of his from anger because his consent was not asked, or, as I strongly suspect, from some other motive. As to its being a bonâ fide objection, I shall found my judgment upon this, which I take to be absolutely true, that he had no valid ground of objection; that he never would have objected; that no reasonable man could have objected; and that therefore, if he had been asked and had objected, his objection would have been wholly unreasonable, and therefore arbitrary. More than that, the omission to ask his leave under those circumstances has not had any possible effect whatever upon his rights, or upon what he would have done, or upon what he would not have done.
Nevertheless, it is obvious that there has been a breach of the covenant. His consent was not asked. There is a breach of the covenant, and upon a breach he has a right of re-entry. Therefore at law it is impossible to doubt that the plaintiff's right of re-entry was made out. He was entitled at law to recover against the defendants the possession of the premises — that is to say, to get rid of the lease, which was a long lease, and of great value to the defendants. Well, the plaintiff insists upon exercising that right. What motive he has for insisting upon it even now I cannot see exactly; there must be some motive, but I do not know what. Nevertheless, that is his right. Then came the only difficult question in the case. It being to my mind clear that the omission to ask the plaintiff's consent had no effect at all upon any real right of his, it being equally clear, to my mind, that not the least harm was done to him, because there is nothing to compensate and nothing to rectify in that respect, the question is whether equity would relieve against that which I consider worked a forfeiture of the lease. The difficulty has been to find out under what head of equity the relief sought could be brought. Equity, it is said, will relieve against fraud, accident, or mistake; and I think you must add that equity will only relieve where there can be complete compensation, or where there is no injury which requires any compensation. Under which head is this case brought? It is obvious that it is not fraud. That is not to be attributed to either of the parties. It is not accident, because it is the result of something which was done on behalf of one of the parties. Is it mistake? If it is mistake within the meaning of that phrase in the equitable doctrine, is it such a mistake as a Court of Equity would in this case relieve? Now, having thought over this matter, and looked into all the cases, I can find no definition of what “mistake” is; but if you treat mistake in its ordinary sense in the English language, is mere forgetfulness mistake? Can you, in English, say, “I forgot,” and is that the...
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