Christie v Wilson
| Jurisdiction | Scotland |
| Judgment Date | 12 March 1915 |
| Date | 12 March 1915 |
| Docket Number | No. 75. |
| Court | Court of Session |
Lord Hunter, Lord Dundas, Lord Mackenzie, Lord Cullen.
Contract—Construction—Alternative obligations—Electio est debitoris—Lease—Water supply—Obligation to supply extra water by alternative methods.
In the lease of a farm the landlord agreed to supplement the existing gravitation water supply so as to make it adequate, or otherwise to lay a pipe to the farm from an adjoining well and to supply a pump.
Held (rev. judgment of Lord Hunter) that the landlord, and not the tenant, had the option of choosing by which of the two alternative methods he would supply extra water, and accordingly that he would fulfil the obligation expressly undertaken by him in the lease by laying a pipe from the well and supplying a pump.
Observed that at common law he was also bound to put the existing gravitation system into proper repair.
Lease—Retention of rent—Breach of obligation by landlord—Right of tenant who has obtained damages to retain rent.
The tenant of a farm, sued by his landlord for arrears of rent, claimed and obtained in the action an award of damages against the landlord for his failure to implement certain obligations under the lease.
Held (rev. judgment of Lord Hunter) that the tenant, having obtained damages, had exhausted his remedy, and could not retain the balance of the rent due on the plea that the landlord's failure to implement his part of the contract barred him from claiming rent.
In October 1913 Miss Isabella Robertson Christie of Cowden, in the county of Perth, brought an action against William Strathdee Wilson and others, Blairingone Mains, in the county of Kinross, for payment of various sums amounting in all to £170, 1s. 1d., being arrears of rent for the farm of Blairingone Mains, of which the pursuer was the proprietor and the defenders were the tenants under a lease for ten years from Martinmas 1911. The summons also concluded for payment of interest on these various sums from the dates when they fell due.
The pursuer averred that the defenders were in arrear with the rent to the extent of the sums sued for. The defenders averred in answer that the pursuer had failed to implement article six of the lease which was in the following terms:—‘The proprietor agrees to supplement the present water supply so as to make it adequate or otherwise to lay a pipe from the well beside the steading, and if need be to provide a pump therefor so as to bring water up to the dwelling-house.’ They stated:—(Stat. 5) ‘The defenders have now been in occupation of the subjects leased since the term of Martinmas 1911. When the defenders entered into possession the water supply was totally insufficient and was polluted and insanitary. Despite frequent applications to the pursuer or her law-agents the pursuer has entirely failed to implement the provisions of article sixth of said minute of lease. She has failed to supplement the water supply which existed at entry or to lay a pipe from the well beside the steading. The main water supply to the farm is from a cistern 314 yards or thereby distant from the farm. The capacity of that cistern is 200 to 300 gallons or thereby, and even in the dry weather there is received into the said cistern at least 200 to 300 gallons during a period of twenty-four hours. The pipes leading from said cistern are defective in condition. They are earthenware pipes, 3 inches in diameter. They leak badly at the junctions, and almost the whole of the water is lost by leakage before it reaches the cistern at the farm. … The pipes in question were laid prior to the entry of defenders. Since their entry nothing effectual has been done to improve the water supply. Some slight repairs have been done to pipes since the entry of defenders, but these have not improved the water supply. The trench in which the pipes have been laid has not been filled up and has remained open for a period of two years or thereby, and as a result the pipes are exposed to the frost and weather and are thus rendered defective. Further, by reason of the defective and leaky condition of the pipes the surface water is allowed to enter the pipes and so pollute and render unfit for use the water supply. Serious loss, injury, and damage has been sustained by the defenders on account of the insufficient and insanitary condition of the water supply. … Explained with reference to the proposal now made to bring water by pumping from the well beside the steading, that the water in said well is not fit for domestic and farm purposes, and has been condemned by the sanitary authorities. Said well is open to surface pollution. In any event it is for the pursuer to implement the conditions of the lease as to the water supply, and until she does so she is in breach of contract.’ The defenders then proceeded to set forth the damage which they had suffered in consequence of the defective supply of water, and stated its pecuniary value at the sum of £550.
In answer the pursuer averred, inter alia, that she had led additional water into and had improved the cistern, and had repaired the existing pipes which brought the water from the cistern to the farm; she also stated that she had in addition repeatedly offered to lay a pipe from the well beside the steading, and to provide a pump, so as to bring water up to the dwelling-house in terms of article 6 of the lease. She denied that the defenders had suffered any appreciable damage.
The pursuer pleaded, inter alia;—(4) The counter claims of the defenders being unfounded, vague, illiquid and such as they are not entitled to set off against a claim for rent, the pursuer is entitled to decree as craved.
The defenders pleaded, inter alia;—(3) The pursuer having failed to implement her part of the said contract of lease, is not entitled so long as she is in breach to insist on implement by the defenders of their part of said contract. (4) The defenders having, through the non-implement by the pursuer of her part of the contract, sustained loss and damage to an amount greater than the sum sued for, are entitled to absolvitor.
On 13th December 1913 the Lord Ordinary (Hunter) after a discussion in the Procedure-roll, appointed the defenders to consign the amount of the sums due under the lease, as sued for, and allowed ‘the defenders a proof of their averments as regards the loss and damage they have sustained in connection with the non-implement of the landlord's obligation undertaken in article 6 of the lease, and to the pursuer a conjunct probation thereanent.’*
On 1st May 1914 the Lord Ordinary, after a proof,† pronounced the following interlocutor:—‘… Assoilzies the defenders from the conclusions of the summons to the extent of £10: Quoad ultra dismisses the action and decerns: Finds the defenders entitled to two-thirds of their taxed expenses.’‡
The pursuer reclaimed, and the case was heard before the Extra Division (consisting of Lord Dundas, Lord Mackenzie, and Lord Cullen) on 26th and 27th February and 2nd to 6th March 1915.
Argued for the pursuer and reclaimer;—Under article 6 of the lease the pursuer's obligations were the following:—First, while not bound to provide a better gravitation system than the one in existence at the beginning of the lease, whether by substituting iron pipes for clay pipes or otherwise, she was bound to put the existing system into proper repair. This she had done, and any delay in her operations was due to circumstances in connexion with weather, &c., for which she was not responsible, and any defects which might still exist owing to these circumstances she was prepared to remedy. Second, in addition to putting the existing
system into repair she was bound either to supplement it so as to make it adequate, or else, alternatively, to lay a pipe from the well and supply a pump. She had the free option of choosing between these...
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