Earl of Galloway v M'Connell
| Jurisdiction | Scotland |
| Judgment Date | 18 May 1911 |
| Date | 18 May 1911 |
| Docket Number | No. 112. |
| Court | Court of Session |
Lord Dundas, Lord Salvesen, Lord Justice-Clerk.
Lease—Retention of rent—Obligation of landlord to put subjects into tenantable repair—Liquid and illiquid.
In defence to an action by a landlord for payment of the rent of a farm the tenant consigned the amount, but pleaded that he was entitled to retain the rent on the ground that the landlord had failed, in various respects which he specified, to fulfil his express obligation under the lease of putting the subjects let into tenantable repair. The landlord pleaded that the tenant was not entitled to retain the rent on the grounds stated, and that the defence was irrelevant.
The Court, in the circumstances, held that the defence was relevant, and allowed a proof.
M'Donald v. KyddSC, (1901) 3 F. 923, followed.
Observed that, as the ground of retention was failure by the landlord to fulfil his part of the contract, and not a counter claim for damages, no question of liquid and illiquid arose.
On 24th March 1906 the Right Honourable Randolph Henry Stewart, Earl of Galloway, let to James M'Connell the farm of Maid-land, in the county of Wigtown, for a period of twelve years from Martinmas 1906, at an annual rent of £375.
The lease, inter alia, provided:—‘The proprietor binds himself to put such of the buildings on the farm as are necessary for the farm as a grazing farm, also the fences and gates on the farm, into a tenantable state of repair so far as necessary, the tenant performing all carriages of materials free of charge: And in respect of the said obligation the tenant hereby accepts the whole houses, dykes, gates, fences, ditches, and drains on the farm as being in good tenantable condition and sufficient for the farm.’
The tenant entered into possession of the farm at Martinmas 1906, and after occupying and paying rent for three years refused, at the term of Whitsunday 1910, to pay the half year's rent which then fell due.
The landlord thereupon brought an action against him in the Sheriff Court at Wigtown concluding for payment of the amount of rent due. The tenant consigned the amount, and, in his defences, lodged a statement of facts, in which he averred:—(Stat. 2) ‘The pursuer has entirely failed to implement the obligation incumbent upon him set forth in the [clause in the lease above quoted], although the defender has since the commencement of the lease persistently urged him to do so. In consequence of such failure the defender has suffered, and is suffering, great loss and damage, his claims for which are hereby reserved.’ (Stat. 3) ‘The farm buildings are, and have been since the commencement of the lease, in a state of great disrepair and dilapidation, and quite unsuitable for the purposes of a grazing farm.’ (Stat. 4) [After specifying a number of details as to the alleged failure of the landlord to perform his obligation of putting the subjects in repair]—‘The condition of matters narrated in this article has existed since the commencement of the lease, and still exists. The defender has thus not been put in possession and enjoyment of the full subjects let in terms of the said lease.’ (Stat. 5) ‘The fences on the farm also require to be attended to and repaired, and in particular the sunk fence between Jedderland field and Quay field requires to be put into a proper state of repair. Since the commencement of the lease the fences have been in a state of great disrepair, and in particular they were in such state of disrepair during the period for which the rent in question is sued for.’ (Stat. 6) ‘The whole of the work detailed in the preceding articles requires to be done, and is absolutely necessary in order to make the buildings and fences suitable for the use of a grazing farm.’ (Stat. 7) ‘The defender has all along expressed his willingness to pay the rent now sued for on these repairs being executed, and has consigned the sum sued for in the hands of the Clerk of Court. Although the defender paid all previous rents, he has since the commencement of the lease been continually urging the pursuer to fulfil the said obligation laid upon him by said lease, but as the pursuer refuses to do so, it has become absolutely necessary for the defender to withhold payment of the rent until the pursuer, by fulfilment of said obligation, gives the defender the full enjoyment of the subjects let.’
The pursuer pleaded, inter alia;—(1) The sum sued for being rent past due and resting owing by the defender to the pursuer in terms of the said lease, and the defender having refused payment thereof although repeatedly demanded, the pursuer is entitled to decree, with interest and expenses as craved. (2) The defences are irrelevant. (3) The pursuer's claim being liquid, and the defence resolving itself into a vague, irrelevant, and random counter claim or demand, the pursuer is entitled to decree as craved.
The defender pleaded, inter alia;—(1) In respect the defender has not got possession of the entire subjects let to him under the said lease, he is entitled to retain the rent now sued for until such possession is given to him. (2) The pursuer having failed to implement his obligations under the lease is not entitled to insist on the performance by the defender of the counterpart of these obligations. (3) The work and repairs set forth in the defences are absolutely necessary for the farm as a grazing farm, and the pursuer is bound by said lease and at common law to carry out the same.
The defender had previously brought an action of damages against the pursuer in the Sheriff Court at Wigtown, alleging that he suffered loss through the failure of the pursuer to put the subjects into repair, in which proof was allowed, and which was pending when the present action was brought.
On 24th November 1910 the Sheriff-substitute (Watson) pronounced this interlocutor:—‘Finds that the defender has stated no relevant defence to the pursuer's claim for rent: Therefore repels the defences and decerns in terms of the crave of the writ.’*
The defender appealed to the Sheriff (Fleming), who, on 3rd February 1911, adhered to the interlocutor of the Sheriff-substitute.†
The defender appealed to the Court of Session, and the case was heard before the Second Division on 18th May 1911.
Argued for the appellant;—The case fell to be decided in accordance with the fundamental proposition that a party to a contract could not enforce it if he had failed to perform his part. Here the pursuer—as the defender was prepared to prove—had failed to put the subjects in...
To continue reading
Request your trial
-
Inveresk Plc v Tullis Russell Papermakers Ltd
...retain rent on the ground of the landlord's failure to fulfil his obligations under the lease provide the most obvious example: eg Earl of Galloway v McConnell 1911 SC 846; John Haig & Co v Boswell-Preston 1915 SC 339. For this reason I would not regard references to a single contract in t......
-
Aberdeen City Council v McNeill
...these include Graham v Gordon, 1843, 5 D 1207; Ferguson v Ardrossan Dry Dock Co, 1910 SC 178; and Earl of Galloway v McConnell, 1911 SC 846. The equitable nature of retention is in my opinion important. The cases illustrate the wide variety of circumstances in which retention may be invoked......
-
Graham (Alexander) & Company v United Turkey Red Company Ltd
...Lord Justice-Clerk Moncreiff, at p. 738; M'Donald v. KyddSC, (1901) 3 F. 923. Reference was also made to Earl of Galloway v. M'Connell, 1911 S. C. 846; Municipal Council of Johannesburg v. D. Stewart & Co., 1909 S. C. (H. L.) 53; and Sanderson & Son v. Armour & Co., supra, House of Lords Ca......
-
JH & W Lamont of Heathfield Farm v Chattisham Ltd
...LR 93; [1996] CLC 351 Forster v Ferguson and Forster, MacFie and Alexander [2010] CSIH 38; 2010 SLT 867 Galloway (Earl of) v McConnell 1911 SC 846; 1911 2 SLT 4 Garscadden v Ardrossan Dry Dock and Shipbuilding Co Ltd 1910 SC 178; 1909 2 SLT 436 Gilbert Ash (Northern) Ltd v Modern Engineerin......