Scottish Court of Session Decisions

Thomas Freen and Others, who were vested in the Halbeath Colliery under a trust-right, took a lease of the lands of Halbeath and their minerals for nineteen years from Martinmas 1826. In the first year of the lease they resolved on subsetting the agricultural part of the lands, and the following advertisement was inserted in the newspapers:—“Farm on the estate of Halbeath. To be let for eighteen years, and entered to immediately.—The Easter, or what is commonly called the Hall farm of Halbeath, contents about 110 acres. The lands are situated, &c. A favourable entry for a tenant, the greater part of the farm being presently in grass; the north field having undergone a complete summer fallow, well manured, and ready for sowing. Offers in writing may be lodged with William Beveridge, writer in Dunfermline, betwixt and the 16th November current. The tenant will have an opportunity of purchasing the crop and stocking, which are to be sold by roup on Monday, the 17th current. Dunfermline, 3d November, 1827.” Handbills of the same tenor were posted on the church-door, &c.

John Russell, farmer, addressed this letter to Beveridge:—”9th November, 1827.—Sir, I hereby make offer of £2, 10s. per Scottish acre (of what the plough takes) for the remaining part of the Halbeath lands unlet, commonly called the Hall farm. The families in the houses west of the farm house to be removed by the 1st February next, and me to have liberty to take them down at any time that may be suitable for me. The dwelling-house to be put in proper repair; and the houses west side of the close to be converted into byres. The house on the north side, if large enough, to be converted into servants' house and stable, with sufficient loft. A new barn to be built, also a cart-shade, with granary. Should the houses on the north side not be large enough, they will require to be enlarged, and any other alterations or additions I may find necessary after proper inspection. The whole houses to be put into a habitable and tenantable condition at my entry, and which I shall leave in the like manner at my removal. The rent to be payable at Martinmas and Whitsunday, by equal portions. I have also no objections to advance the money for the repairs and buildings, being allowed five per cent interest for the same, deducted from the rent yearly. The principal to be deducted from the last rents payable. And as to cropping the lands, I shall observe the mode pointed out in the Halbeath Company's tack for the portion let to me. Entry at Martinmas first. I am,” &c.

Russell afterwards waited on Beveridge, and the following addition was made in the hand of Beveridge, and subscribed by Russell:—“Further, I bind and oblige myself to provide and furnish the Halbeath Company, or their successors or assignees, during the continuance of the lease of the farm, or for such period thereof as the said company shall require, with three good and able horses, and drivers, for leading their coals or other minerals from their workings or coal-hills to the shipping port at Inverkeithing, for which I am to be paid at the rate of sixpence sterling for each ton of twenty-one cwt.”

The parties here referred to as the “Halbeath Company,” were Thomas Freen and Others.

Russell made a farther modification, by an addition to his missive, of the sort of repairs required, including inter alia the conversion of a certain house into a stable for ten horses.

No lease was extended; but Russell entered into possession of his farm, and expended a considerable sum, said to have been £170, on repairs. He continued for some years to pay his rent; but, in 1833, he raised a summons of declarator and damages against Thomas Freen and Others. The declaratory conclusion was to have it found, that his offer or missive of lease was not binding as a lease upon him for a term of years, as it did not specify any term of endurance; and, therefore, he was entitled to bring the lease to a close at any time after giving reasonable notice. The conclusion for damages, laid at £1000, was rested on the circumstance, that, though he had been obliged to keep three horses and drivers, in terms of his missive, for the service of the Halbeath Company, the Company had failed to furnish full employment to them.

The defenders pleaded—

As to the declaratory conclusion, that the missive offer of lease was made and received distinctly in reference to the advertisement, which specified eighteen years as the endurance of the lease, the whole stipulations as to repairs, getting abatement of five per cent on advances disbursed by the tenant, and observing a certain rotation of cropping, necessarily referred to a lease of considerable endurance; and the precise term was fixed by the relative advertisement. This was the more apparent, as the rotation referred specially to “the mode pointed out in the Halbeath Company's tack,” which had just eighteen years to run when Russell's tack commenced.

As to the conclusion for damages, it was true that the pursuer's three horses and men had not been always fully employed, but the defenders had never acted with mala fides in employing the horses of any other parties to the pursuer's prejudice; and if they acted with bona fides in giving such employment as they had, after first employing the horses of their own establishment, they were not farther bound, as the stipulation on that subject in the missive was inserted in favour of the defenders and not of the pursuer, the object merely being to place these horses at the defender's command when required.

The Lord Ordinary ^* “assoilzied the defenders from the conclusions

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^* “ Note.—This is an action of declarator, brought to have it found that a missive of lease, followed by possession for several years, is not binding, or that the lease is now come to an end; and there is also a conclusion for damages against the defenders, on account of alleged non-implement of their part of the compact as lessors. The pursuer contends that the lease is not binding for more than one year, because the missive does not specify the period of endurance. To this, it is a sufficient answer, that the missive clearly shows that the lease was not to continue for one year only. It specifies a rotation of crops, being the same which the lessors, the principal tenants of the farm, were bound to observe. There is a provision as to meliorations or repairs to a considerable amount, and the pursuer agrees to advance the expense of these repairs, interest at the rate of five per cent being deducted from the rent yearly, and the principal to be deducted from the last rents payable. But the precise endurance is fixed by the advertisements which were inserted in the newspapers, and the baud-bills which were circulated and posted up, mentioning that the farm was to be let for eighteen years from the then ensuing term of Martinmas, and directing written offers to be lodged with Mr Beveridge, writer in Dunfermline, before the 16th of November in that year. In terms of these advertisements, the pursuer's offer, dated the 9th of November, was lodged with Mr Beveridge. Now, it is settled law in the case of a lease, in which no term of endurance is defined, but where it is clear that parties intended it should continue for more than one year, that the Court are entitled and bound to fix the period, according to the ordinary rules of construction, from such evidence as can be obtained. The evidence here seems conclusive.

“There is a condition not contained in the original offer, but subsequently added, by which the pursuer became bound to furnish the Company during the continuance of the lease, or for such period thereof as they should require, with three good and able horses and drivers, for carrying their coals to Inveikeithing, he being paid at the rate of 6d. per ton. The pursuer does not allege that the horses were not employed, but he maintains that he was entitled to insist that they should be fully employed, which it is admitted was not the case. The Lord Ordinary cannot construe this clause into an obligation that the pursuer's horses should have full or constant employment. On the contrary, it seems a condition in favour of the Company, that they should have the command of these horses when they had occasion for them. Nor was this any hardship upon the pursuer, as it appears from the missive that the establishment on the farm was to consist of no less than ten horses. It is alleged that the Company improperly employed other horses at a time when the pursuer's were idle, but there is no specific statement in the record sufficient to infer mala fides in the conduct of the defenders in that respect. The horses employed on the occasions alluded to might have belonged to the defenders themselves.

“As the non-implement alleged does not infer extinction of the contract, neither does it, in the Lord Ordinary's opinion, found any claim of damages.”