Donald v Shiell's Executrix
| Jurisdiction | Scotland |
| Judgment Date | 13 November 1936 |
| Docket Number | No. 6. |
| Date | 13 November 1936 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Ld. Stevenson.
ArbitrationAwardChallengeAward not exhaustive of referenceFailure of arbiter to deal specifically with every item submitted.
In an arbitration between the outgoing and incoming tenants of a farm the questions submitted for the decision of the arbiter in the submission were, (First), what sum should be paid by the incoming tenant to the outgoing tenant in respect of corn crop and various other items, and (Second), the sum, "if any," to be paid by the outgoing tenant to the incoming tenant in order to put (a) the buildings on the farm, and (b) the outfalls or drains, into the condition provided for under the conditions of let in favour of the incoming tenant.
The decree-arbitral consisted of two interim awards ordaining the incoming tenant to pay certain sums in respect of items included under the first head of the submission, and a further award, headed "final award," also in respect of items under that head. No award was made in respect of any of the items included in the second head of the submission, and the arbiter made no mention thereof either in the interim awards or in the final award.
In an action at the instance of the incoming tenant for reduction of the decree-arbitral, on the ground that the arbiter had not exhausted the submission,
Held (rev. judgment of Lord Stevenson) (1) that the absence from the decree-arbitral of any reference to the items contained in the second head of the submission did not justify the inference that, in the arbiter's opinion, nothing was payable under that head, and (2) that, as the decree-arbitral could not be eked out by extrinsic evidence, proof of its precise scope was incompetent; and decree of reduction granted.
On 10th June 1935 James Donald, farmer, Clifton Hill, Ednam, Roxburghshire, brought an action against Robert Shiell, Humebyres, Greenlaw,1 and John Stoddart Dickson, farmer, Horsburgh Castle, Peebles, in which he sought reduction of a decree-arbitral of the second-named defender, consisting of (1) an interim award dated 21st July 1934, (2) an interim award dated 9th January 1935, and (3) a final award dated 14th May 1935, issued in an arbitration between the first-named defender and the pursuer. No defences were lodged on behalf of the second-named defender.
The pursuer and the first-named defender averred:(Cond. 1) "The pursuer is a farmer and is the tenant of the farm of Clifton Hill in the Parish of Ednam and County of Roxburgh. His tenancy commenced at Whitsunday 1934. The first-named defender was the tenant of the said farm until Whitsunday 1934, under an agreement with conditions of let attached dated 25th November 1912. The present proprietors of the said farm are the heirs or representatives of the late Sir Richard John Waldie Griffith, Bart. The second-named defender is also a farmer, to whose decision as arbiter various questions between the pursuer and the first-named defender were referred, as after mentioned. He is called for any interest he may have." (Ans. 1) "Admitted, under reference, for their terms, to the agreement and the conditions of let attached thereto." (Cond. 2) "By the conditions of let under which the pursuer became tenant of the said farm, he became liable to pay the outgoing tenant (the first-named defender) for the following:(1) The corn crop of the year 1934; (2) ten acres of grass; (3) the thrashing mill and steam engine; (4) sheep dipper; and (5) 2 pumps. The said conditions of let also provided for the assignation by the landlord to the pursuer
as incoming tenant of all obligations on the outgoing tenant with respect to, inter alia, the buildings on the farm, including painting of outside woodwork and the keeping up of drains, ditches and water courses. The outgoing tenant was under obligation to maintain and leave the buildings, drains, &c., in good and tenantable condition. A copy of the said conditions of let is produced." (Ans. 2) "The conditions of let are referred to for their terms. Quoad ultra no admission is made." (Cond. 3) "By submission dated 18th May 1934 the pursuer and the first-named defender submitted and referred to the decision of the second-named defender, as sole arbiter, the following matters:'(First) What sums shall be paid to the first party by the second party as the value of the following matters or things in or about the said farm, videlicet:(One) The corn crop of the year nineteen hundred and thirty-four (exclusive of the straw which is steelbow), after deduction of the expense of cutting the said corn crop but without any deduction for leading, manufacturing or delivering the same, (Two) Ten acres of grass sown with the first party's corn crop of nineteen hundred and thirty-three, which has been hained, (Three) The thrashing mill, oil engine and bruiser, and connexions thereof, (Four) The sheep dipper, including the cement floor and the fencing round same, (Five) Two pumps situated in fields Numbers Two hundred and two and Two hundred and thirty-eight of the Ordnance Survey Plan, (Six) Any other matter or thing which the parties hereto may by writing signed by them however informal desire the arbiter to include in this submission, as also to fix and determine the date or dates when the above items fall to be paid, (Second) (One) The sum if any to be paid by the first party to the second party as necessary to put the buildings on the farm including the painting of the outside woodwork of said buildings into the state provided for in the said agreement and conditions of let, (Two) The sum if any to be paid by the first party to the second party as necessary to put the outfalls or drains into the state provided for in the said agreement and conditions of let, as also to fix the date when such sums if any fall to be paid.' A copy of the said submission is produced and referred to." (Ans. 3) "The submission mentioned is referred to for its terms.Quoad ultra no admission is made." (Cond. 4) "On 21st July 1934 the second-named defender issued an interim award in the said arbitration fixing the sums to be paid by the pursuer for the thrashing mill, 10 acres of grass, sheep dipper, and 2 pumps. On 9th January 1935 he issued a second interim award appointing the pursuer to pay a sum of 700 in respect of the corn crop. On 14th May 1935 he issued a pretended final award appointing the pursuer to pay a further sum of 288, 9s., as the balance in respect of the corn crop. In none of the said pretended awards did the second-named defender fix any sums to be paid by the first-named defender in respect of the items (Second) set forth in the said submission, and the awards do not refer at all to these matters. " (Ans. 4) "The awards mentioned are referred to for their terms. Quoad ultra no admission is made." (Cond. 5) "In point of fact at the termination of the first-named defender's tenancy of the said farm the farm buildings, drains, &c., were in a considerably dilapidated condition. Substantial expenditure was necessary to put them into the condition in which the first-named defender was under obligation to leave them. The pursuer has himself executed some of the necessary repairs. In connexion with the said arbitration, the second-named defender visited Clifton Hill farm a few days before 28th May 1934, and must have seen the dilapidations and that the buildings were not in good and tenantable condition. In or about June 1934 he again visited the farm, and on that occasion certain of the dilapidations were pointed out to him by the pursuer and noted by him. With reference to the explanations in answer no admission is made." (Ans. 5) "Admitted that the second-named defender visited Clifton Hill Farm on the 19th May and again in June 1934. What repairs have been done by the pursuer is not known and not admitted.Quoad ultra denied. Explained that on the first occasion on which the second-named defender visited the farm, he inspected the buildings and drains and made a note of the repairs which required to be done to satisfy the conditions of the lease. When he visited the farm on the second occasion he again inspected the buildings and drains and found that the defects which he had noted on the first occasion had been remedied to his satisfaction. The second-named defender had, accordingly, no award to make under head (Two) of the submission." (Cond. 6) "In consequence of the failure of the second-named defender to deal with these items (Second) set forth in the said submission in his awards and decree-arbitral these do not exhaust the matters referred to him. They are, therefore, null and void and...
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