Now, the real question comes to be, not whether the tenant is entitled to demand damages for the failure of the landlord to fulfil his obligation to him, but whether or not the landlord, who directly and at once enforced the prestations in his favour in the lease, while he has failed, and is still failing to fulfil the prestations in favour of the other party, is entitled to demand payment of the rent. I think he is not, and that is a sufficient ground on which this case may be decided, and I would decide it accordingly. I ought to point out that, of course, here the landlord is in no danger as to the amount of the rent, for the money is consigned and perfectly safe, and the only question is, whether he is entitled to insist on receiving that money while he is in the position of not having fulfilled the conditions he undertook.
Lord Young —I concur. The facts of the case are simple enough. The relation of the parties is that of landlord and tenant. When the tenant entered into possession, the leasehold premises were not in a tenantable condition—not in the condition in which the landlord was bound by his obligation as landlord to put them. That is admitted in a minute which was given in for the purpose of overcoming a difficulty arising from an expression in the contract of lease itself, that the farm premises had been put into proper condition. The minute acknowledges on the part of the landlord that they had not been put into that condition, and that the landlord was accordingly bound, notwithstanding the expression in the lease that they had been put into that condition. He proceeded to put them into a better condition, but according to the tenant they had not at Whitsunday 1899 been put into the condition into which the landlord was bound to put them. The tenant had paid his rent notwithstanding up to that term, but, his attention being then particularly directed to the matter by the purchaser of the property, he intimated to the landlord that he would not pay the rent until they were put into that condition. Upon that this action is brought, and a general question is raised as to whether rent can be withheld by a tenant upon an illiquid claim of damages against the landlord for omitting to do something which by the lease he was bound to do. Now, many cases may occur in which a tenant would not be allowed to retain his rent until it is decided whether something under the lease which the landlord was bound to do had been done or not. But here the simple question is, whether by the operations which the landlord had directed to be made, and which had been paid for prior to Whitsunday 1899, the premises, which were not in the condition into which he was bound to put them prior to these operations, had then been put into that state or not. There is no other question; and I agree with the Sheriff and with your Lordship that according to the
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Lord Trayner —I am of the same opinion. The claim which is sought to be enforced by this action is a claim for rent, and payment of rent is the obligation on the defender under the contract of lease. But the contract imposed obligations on both parties—the landlord and the tenant. The tenant's obligation is to pay the rent—the landlord's obligation is to give a tenant—able subject. Now, I am disposed to put my judgment simply upon the application of the general rule, that where a person seeks to enforce the terms of a contract against another he is excluded from doing so if it can be shown that he is in default himself in the obligation that the contract puts on him. I think the case has been a little embarrassed by the introduction of the fact that there has been a change in the proprietorship of the subject. I think this case must be decided without reference to that change of proprietorship at all. It suggests, no doubt, a reason why the defender should set up this plea now which he did not set up six months or twelve months ago; but I think it does not affect the question to be determined nor the judgment to be pronounced on it. I think the pursuer's case has failed, and the Sheriff has properly dismissed the action on the ground that the pursuer cannot enforce a contract, the obligation in which, binding on himself, he has failed to fulfil.
Lord Moncreiff —The Sheriff finds in point of fact that the barn and stable wing and hen-house and earth-closet were not in habitable condition and repair at the defender's entry, and that nothing has been done to put them in repair; that the pursuer has offered to execute certain repairs mentioned in the minute of tender, and that the said repairs would not be sufficient to put the building into habitable condition and repair. I think the evidence establishes these findings in fact. The findings in law are—“(1) that the pursuer is bound to put the said buildings in habitable condition and repair; (2) That the defender is entitled to retain the said rent until that is done: Therefore dismisses the action.” Now, I think that is a sound ground in law for the decision of the case. It is simply this, that the landlord has not fulfilled his obligation under the lease, and therefore is not in a position to demand payment of the rent. Mr Blackburn maintained that in order to a good plea of retention of rent it was necessary that the tenant should establish damage to the amount of the rent retained. I do not agree in that. I have no doubt that the Court is entitled to take cognisance of the kind and amount of damage alleged by the tenant, and that they will not allow retention of rent where the damage complained of by the tenant is trivial. But where the damage sustained is solid and substantial then I do not think it essential that the tenant in order to make good a plea of retention should prove what specific amount of damage he has sustained. What he demands is not damages but that the landlord should fulfil his obligation to put the buildings in order before he can demand payment of the rent.
There is only one other point that requires to be noted, namely, the plea of acquiescence. It is maintained that this tenant by occupying for three years and paying rent discharged the landlord of his obligation. I think the explanation of that is very simple, and that is that the landlord very properly had been recognising his obligation, and had been fulfilling and discharging it bit by bit till the time came when he sold the property. Now, very likely, if the property had not been sold the tenant would have waited the landlord's time and have given him an opportunity of completing the work as he was doing. But the property having been sold, I think that was a proper time for the tenant to bring things to a point, and to call on the landlord to fulfil his obligation. Therefore I have no hesitation in agreeing that the decision of the Sheriff should be affirmed.
The Court dismissed the appeal, found in fact and in law in terms of the findings in fact and in law in the interlocutor appealed against, and dismissed the action.
Counsel for the Pursuer and Appellant— W. Campbell, K.C.— Blackburn. Agents— Dundas & Wilson, C.S.
Counsel for the Defender and Respondent— Salvesen, K.C.— W. Brown. Agents— Tawse & Bonar, W.S.