Lovie v Baird's Trustees

CourtCourt of Session
Judgment Date16 October 1895
Docket NumberNo. 1.
Court of Session
1st Division

Lord Kincairney, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 1.
Baird's Trustees.

LeaseTenant's claim for arbiter's valuationCounter claim by landlord under the leaseLiquid and illiquid.

In an action by an outgoing tenant against his landlord for sums ascertained to be due to the pursuer under his lease by arbiters mutually chosen, the defender pleaded that he was entitled to set off against the pursuer's claim a counter claim for interest on improvement expenditure, &c. under the lease.

Held that as the pursuer's right depended on his having implemented his obligations under the lease he was not entitled to decree de plano, and a proof allowed.

Alexander Lovie was tenant of the farm of Towie on the estate of Auchmedden, Aberdeenshire, under a nineteen years' lease, which came to an end as regards houses, grass, and fallow land, at Whitsunday 1892. He then became entitled under his lease to be paid for grass, fallow land, and farm-yard manure at the valuation of arbiters to be chosen by him and his landlord, George Alexander Baird. Arbiters were appointed, who fixed the value at 670, 17s.

On 14th March 1895 Lovie raised an action against the trustees of Mr Baird, who had died, for payment of this sum.

The defenders did not dispute the pursuer's claim, but maintained that the pursuer was due to them the sum of 1002, 1s. 3d., under the lease in respect of arrears of rent, interest on improvement money, building, &c., and that after giving effect to certain deductions claimed by the pursuer, and giving the pursuer credit for the sum sued for in the present action, the pursuer was still due to the defenders the sum of 134, 4s. 1d.

The pursuer pleaded;(1) The defences being irrelevant should be repelled. (3) The counter claims made by the defenders not being liquid and not being ascertainable in this process, the defences, in so far as founded thereon, should be repelled. (4) The sum sued

for being the sum found due by arbiters appointed by the parties, decree as craved ought forthwith to be pronounced therefor.

The defenders pleaded;(1) The pursuer being indebted to the defenders for rents and other sums due under the lease in a larger amount than the sum sued for, the defenders should be assoilzied, with expenses. (2) The defenders are entitled to set off against the sum sued for the sums due by the pursuer in respect of his tenancy of the farm under the lease founded on. (3) The pursuer not having implemented his obligations under the lease founded on, is barred from enforcing any counter obligations incumbent upon the defenders.

On 13th June 1895 the Lord...

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