No. 11. X. MACPHERSON, 27. 1 Nov. 1871. 2d Div.-Sheriff of Lanarkshire, L. MATTHEW WHITELAW, Appellant.- Watson-Asher. Landlord and Tenant-Repairs-Mora-Right to resile.-A person took a lease of certain premises on 7th June. He entered on possession and made certain alterations, but on 17th August intimated that he resiled, unless the landlord would make certain alterations to remove alleged damp. Held that he could not resile. Landlord and Tenant.-A landlord presented a petition against his tenant, to have him ordained (1) to place sufficient furniture in a shop which had been let to him to cover a year's rent; (2) to open it and carry on his business in it; and (3) to keep proper fires in it, and air it so as to prevent damp. Held that the tenant was obliged to furnish it, keep fires in it, and air it, but not to open and carry on business in it. James Fulton, pawnbroker, Wishaw, with consent of Lachlan Taylor, plumber, Wishaw, presented this petition on 9th November 1870 in the Sheriff-court of Lanarkshire against Matthew Whitelaw, pawnbroker, Wishaw, praying the Sheriff to ordain the respondent, "within such short space as your Lordship may appoint, to place sufficient furniture, goods, and plenishing within the said shop and other premises situated at No. 15 Glasgow Road, Wishaw, equal at least in value to the current year's rent thereof; as also to open the said shop and other premises, and carry on his business therein, and to keep proper fires lighted therein, and air the same in such manner as shall prevent deterioration from dampness." The tenement 15 Glasgow Road, Wishaw, was taken by Taylor on behalf of the petitioner from a Mrs. Deans for five years, but this arrangement was never reduced to writing. On 7th June 1870 Whitelaw wrote to Taylor in these terms:-" Sir,—I have your letter this morning. I accept the premises for five years at £24 sterling per annum, with deduction of £7 sterling for the first year, without any further recourse." Whitelaw entered into possession and proceeded to make certain alterations, but on 17th August 1870 his agents wrote the following letter to Fulton :-"Mr. Whitelaw informs us that the premises in question are not in a fit state for occupation, and that unless considerable alterations and repairs are made thereon he will be under the necessity of resiling from the lease. We shall, therefore, thank you to let us know, on or before Saturday first, whether you are willing to make the necessary alterations. If you are willing to do so, Mr. Whitelaw must have a proper lease drawn up between Mrs. Deans and him." Certain correspondence also took place between Whitelaw's agents and Mrs. Deans. Whitelaw pleaded;--The shop and premises referred to were, at the time when the defender should have entered thereto, and have since been, uninhabitable and unusable in consequence of their not being in a proper state of repair. In particular, the walls were and are excessively damp, and goods could not be placed near or against them. The floor of the premises also requires to be renewed. The defender has all along been ready and willing to occupy and stock the premises if they were put into a proper state of repair. After a proof the Sheriff-substitute (Spens) decerned against Whitelaw, in terms of the first craving of the petition, to place furniture in the shop of the value of a year's rent, and, quoad ultra, dismissed the petition. On appeal the Sheriff (Glassford Bell) pronounced these findings:-"Finds that the defender is not entitled to shake off his obligation under the lease, and to keep the premises unplenished, so as to deprive the pur-[28]-suer of the security he is entitled to have at common law for his rent; but, on the contrary, is bound to place sufficient plenishing therein, in terms of the primary conclusion of the petition: Finds, as regards the other conclusions, that there is no authority for holding that the defender can be ordained to open the shop and other premises, and carry on his business therein, but he can be ordained to give the premises the customary firing and airing, seeing that the damage and deterioration which they would suffer from the want of these would amount to an inversion of the proper state of possession, and a breach of the condition on which they were let: Therefore adheres to the interlocutor appealed against in so far as it refuses to give effect to the said second conclusion, but alters it as regards the third, and ordains the defender to keep proper fires lighted in the premises in question, and to air the same. Whitelaw reclaimed, and argued ;-(1) The petitioner had no title to sue, having no lease from Mrs. Deans. (2) The proper remedy was a claim for rent. (3) The premises were uninhabitable, and the appellant was entitled to resile from his bargain. Fulton replied;-(1) A sub-tenant cannot challenge the title of the principal tenant from whom he derives his right. (3) The respondent's letters to Mrs. Deans, and her answers, show that a five years' lease was contemplated between her and the petitioner. (3) A claim for the half-year's rent could not be made until it was due. (4) Whitelaw having entered on possession, and made alterations in the premises, his objection was too late. (5) £7 was deducted from the first year's rent to enable him to make all repairs "without any further recourse on the petitioner. And (6) the repairs were not so inherent or structural as not to be cured at some little cost. LORD COWAN.-This is an application to the Sheriff, as Judge Ordinary, in its main conclusion, to compel a sub-tenant of a shop to place goods in the shop, and plenish it at least to an extent equal in value to the year's rent. That this was a competent application I cannot doubt. The respondent, indeed, says the true remedy was a demand for rent, but that could not have been made until the half-year's rent was due, which it was not at the date of the application. But it is said the petitioner had no title, inasmuch as he has not instructed his right as principal tenant by any lease from the proprietor. Irrespective of other answers it is sufficient to say that a sub-tenant cannot turn round on the principal tenant from whom he derives his own right and dispute his title any more than a tenant can in general dispute his landlord's title from whom he holds his land in lease. Then, on the merits, what is the defence? It is that the shop was uninhabitable and untenantable for want of repairs. To this there are several insuperable answers:— (1) That objection comes too late. The respondent in May 1870 took possession of the premises, and made important alterations for the purpose of suiting the shop for his own business, and he does not say that it was uninhabitable until August. It is farther in evidence that previous to the agreement in May the respondent had inspected the premises, and made no objection on the ground of their not being inhabitable. But (2) the writings founded on in the argument were quite legitimately before the Sheriff for the purposes of this application; and they demonstrate that the communications between the parties to this application themselves, and between the respondent and the landlady, Mrs. Deans, had in view a lease of the premises for five years, the rent being fixed at £24 yearly, but the first year's rent being subject to a deduction of £7,"without any further recourse." These words are construed by the Sheriffs, and on the proof have, as I think, been rightly construed, to mean that in respect of such repairs as the premises might have required at the landlord's hands the respondent undertook to make them, along with the alterations he contemplated to suit his own business, in consideration of this allowance of £7. Accordingly [29] the rent for this first year is stated in the petition at £17, being the rent stipulated by the writing after deducting the above sum. It is not necessary to determine whether the respondent could compel the execution of a five years' lease in his favour under these writings. It is enough to meet the defence stated that they clearly show he had accepted the premises, and was to repair them himself. This appeal should therefore be dismissed. LORD BENHOLME.-I concur in the opinion which has just been expressed. The prayer of the petition and the finding of the Sheriff are necessarily limited to a lease of one year's duration, and by our adhering to the interlocutor we merely affirm that what the Sheriff did was correct. There is no danger of the judgment being extended to other years. In regard to the merits, I am of opinion, from the facts disclosed on the proof, and especially the fact that the defender does not resile from the acceptance, that a one year's lease has been made out. LORD NEAVES concurred. The LORD JUSTICE-CLERK was absent. This interlocutor was pronounced:-"Find that at or about the term of Whitsunday 1870 the defender took from the pursuers a sub-lease of the premises in question, and that he entered into possession thereof, and proceeded to make various extensive alterations on the said premises to adapt them to his own purposes: Find that the defender did not make any complaint in reference to the state of the premises as being unfit for habitation until the month of August, long after their state must have been known to him: Find, further, that in the course of process it appeared that the sub-lease entered into between the pursuers and defender, or between the latter and the proprietor, was for five years, and that the defender had agreed to accept an abatement of rent during the first year of his possession in full of all the repairs which the proprietor or lessor was bound to make on the premises in question: Find, in these circumstances, that the defender was truly sub-tenant of the premises, and was bound duly to occupy and possess the said premises, and to plenish the same and keep them habitable: Therefore dismiss the appeal, and affirm the interlocutor appealed from, and decern Find the respondent entitled to expenses," &c. : MILLAR, ALLARDICE, & ROBSON, W.S.-A. MORISON, S.S.C.-Agents. No. 12. X. MACPHERSON, 29. 2 Nov. 1871. 1st Div.-Lord Gifford, B. ALEXANDER BRODIE MACKINTOSH AND OTHERS, Pursuers.-Lord-Adv. Young -Fraser-Hunter. JOHN M'ARTHUR MOIR, Defenders. Sol.-Gen. Clark-Crichton. Process-Expenses-Jury Trial.-In an action to vindicate an alleged public right of way a verdict was returned in favour of the pursuers, which was set aside, in respect that the evidence was legally insufficient to support it, and a second trial ensued, at which the pursuers materially strengthened their case, and again obtained a verdict, which the Court refused to disturb. Held (diss. Lord Deas) that the pursuers were entitled to the expenses of both trials. Ante, vol. ix. p. 574. This case was tried by the Lord Ordinary and a jury in January 1861 upon the following issue:"Whether, for forty years, or for time immemorial, prior to 1844, there existed a public road or right of way for [30] horses, carts, and other conveyances, and also for foot-passengers, or for any and which of these purposes, leading from Hillfoot Street, Dunoon, through the lands of Milton and Gallowhill, to Argyle Street of Dunoon, in or near the direction shown by the red line on the plan No. 6 of process?" The jury returned a verdict in favour of the pursuers, but the Court, on 28th February 1871, set aside the verdict, and granted a new trial, on the ground that the evidence was not of a kind sufficient in law to infer the existence of a public right of way. * A second trial ensued before the Lord Ordinary and a special jury in May 1871. At this trial the pursuers materially strengthened their case, and again obtained a verdict in their favour. This verdict the Court eventually refused to disturb. The pursuers now moved the Court to apply the verdict, and to find them entitled to expenses. The motion for expenses was opposed by the defender, who argued that the first trial had proved abortive entirely through the fault of the pursuers, who had not adduced evidence of a character sufficient in law to establish their case. If the evidence which the pursuers laid before the jury at the second trial had been brought forward at the first, the first verdict would not have been set aside. There was nothing to have prevented the pursuers from adducing that evidence at the first trial, and they were therefore to blame for not having come properly prepared, and thus occasioning the expense of two trials.† * Ante, vol. ix. p. 574. † Miller v. Hunter, Nov. 24, 1865, ante, vol. iv. p. 78; Urquhart v. Bonnar, Nov. 21, 1866, ante, vol. v. p. 45; Stewart v. Caledonian Railway Co., Feb. 4, 1870, ante, vol. viii. p. 486. Argued for the pursuers;-Except in the case of Miller v. Hunter, there is no instance in which a party who has obtained two verdicts in his favour has not been found entitled to the expenses of both trials. The case of Stewart v. The Caledonian Railway is only an apparent exception to this general rule, because in that case the first verdict, although nominally in favour of the pursuer, was really a verdict against him, and it was so treated by the Court. Then, the case of Miller v. Hunter is not in point, because there was there found to be a total miscarriage of justice at the first trial, for which both parties were equally responsible. Here no misconduct in the cause could be attributed to the pursuers. At the first trial they brought forward evidence which convinced the jury of the justice of their claim. The verdict returned at that trial was quite right, as the sequel of the case showed; and if it is only after two trials that the ends of justice have been attained, that is entirely through the fault of the defender, who ought never to have resisted the action. At advising, LORD PRESIDENT.-The only question in regard to expenses in this case is whether the pursuers are entitled to have those of the first trial awarded to them. Now, the pursuers have been successful throughout, having obtained a verdict in their favour at both trials. No doubt we were dissatisfied with the first verdict, and set it aside, but that is just the condition of every such case; and although, no doubt, the evidence adduced by the pursuers at the second trial was somewhat stronger than what they had brought forward at the first, I do not think that is a sufficient specialty to warrant us in departing from the general rule. If evidence had been withheld at the first trial, that might have made a difference; but the fact that the pursuers afterwards made their case rather better is not, I think, enough to render this an exceptional case. [31] LORD DEAS.-In my opinion the first verdict proved to be useless and abortive through the fault of the pursuers themselves, and if so, they are not entitled to the expenses of that trial. The opinions we gave in setting aside the first verdict were to the effect that it was not supported by legal evidence, and unless the pursuers had amended their case at the second trial, the verdict which they then obtained would have been set aside also. It now turns out that the pursuers had within their power evidence which, if adduced at the first trial, might have warranted a verdict in their favour. I am of opinion, therefore, that they ought only to get the expenses of the last trial. LORD ARDMILLAN concurred with the Lord President. LORD KINLOCH.-I agree with your Lordship in the chair. If it had appeared that some important point had not been proved by the pursuers at the first trial the case would have been different. But the circumstance that their evidence at the second trial was somewhat stronger than at the first, or rather I should say less weak-for I think both verdicts unsatisfactory-is not, in my opinion, a sufficient reason for refusing to award expenses. The following interlocutor was pronounced:-"The Lords having heard counsel for the parties on the notice of motion for the pursuers, No. 147 of process, apply the verdict found by the jury in this cause: Of consent of both parties remit to Mr. James Peddie, civil engineer, Edinburgh, to visit the ground, and to report in what line the road ought to be laid down consistently with the verdict, and of what breadth the said. road ought to be, and to lay down the said line on a plan to accompany his report: Find the pursuers entitled to the expenses hitherto incurred in the process; allow accounts," &c. W. F. SKENE & PEACOCK, W.S.-DUNCAN, DEWAR, & BLACK, W.S.-Agents. No. 13. X. MACPHERSON, 31. 2 Nov. 1871. 2nd Div.-Sheriff of Stirlingshire, I. JAMES STARK, Pursuer and Appellant.-Gloag. WILLIAM M'LAREN, Defender and Respondent. Watson-Jamieson. Reparation-Collaborateur-Culpa-Want of Skill.-The roof of part of a chemical work having fallen in, the proprietor instructed the manager of the chemical department to employ the labourers in the work to remove the broken roof and to clear away the rubbish. In an action of damages raised by one of the labourers, who had been injured by the fall of a gable during the operations, against his master, the latter pleaded in defence that the injuries had been sustained through the fault of the pursuer's fellow-servant, the manager, who directed the operations. Held that there was fault on the part of the defender in sending the labourers to work without ascertaining from persons skilled in building whether they were in safety to do so. Observed, that the doctrine of collaborateur did not apply to the case. James Stark, blackmiller, Falkirk, raised this action in the Sheriff-court of Stirlingshire against William M'Laren, chemical manufacturer, Grahamston, for damages for injuries received by the pursuer, when in defender's employment, through the fault of the defender or those for whom he was responsible. The facts, as brought out on a proof, appear from the following interlocutor of the Sheriff-substitute (Bell):-" Finds in point of fact that on the 27th of February 1870 the roof of the cylinder-house in the defender's chemical works at Grahamston fell in, carrying along with it the greater part of the front wall and the upper part of the west gable Finds that the defender instructed his son, Mr. Peter M'Laren, who has the entire management of the operative department of his chemical works in question, to employ the labourers next morning in clearing away the fallen [32] roof and rubbish : Finds that, accordingly, early on 28th February, a number of the workmen were so employed under the direction of Mr. Peter M'Laren, and about 9 A.M. of that day the defender came to the works and saw what was going on: Finds that in the course of the forenoon, while some of the workmen were employed inside the cylinder-house under Peter M'Laren's orders, in unscrewing and removing the rafters of the fallen roof, the pursuer, along with a fellow-workman, James Taylor, was ordered by the said Peter M'Laren to clear away the bricks and rubbish which had fallen from the west gable, and which were lying at its base outside; and while they were so engaged, a considerable portion of the gable fell upon the pursuer, who thereby sustained the serious injuries libelled Finds that the said gable having been injured by the fall of the roof on the previous day, was in a dangerous condition when the operations above-mentioned were commenced on the 28th February: Finds that no sufficient examination was made by the defender, or on his behalf, of the condition of the gable, and no precautions were taken for the security of the pursuer and the other workmen while employed near it: Finds that the pursuer was thus unduly exposed to risk when he met with the accident libelled, and was in no manner to blame for what occurred: In these circumstances, finds in point of law that the defender, as his employer, is liable in reparation for the injuries sustained by the pursuer; therefore repels the defender's pleas, modifies the damages at the sum of £100 sterling, and decerns against the defender for that amount, under deduction of the sum of £26, which has been paid by the defender to the pursuer since the date of the accident." The Sheriff (Blackburn) altered, and assoilzied the defender. * "NOTE. The work on which the pursuer and all the other men, including Peter M'Laren, the foreman or manager, were employed by the defender on the day of the accident was, as the Sheriff thinks, undoubtedly one common work, namely, the removal of the fallen roof and debris; and looking to the judgment of the House of Lords in the case of Wilson v. Merry and Cunningham, and the opinions delivered in that case, the Sheriff thinks it now fixed law, that a foreman or manager is as much a fellow-workman of any workman employed in the same work as any other subordinate workman. If, therefore, the gable fell through fault of Peter M'Laren, it was the fault of one of the pursuer's fellow-workmen. |