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Cite as: [1836] EWHC Exch J61

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JISCBAILII_CASE_CONTRACT

Neutral Citation Number: [1836] EWHC Exch J61
(1836) 150 ER 517, Exch

IN THE COURT OF EXCHEQUER

B e f o r e :


____________________

Between:
HUTTON
-v-
WARREN

____________________


    Assumpsit. The declaration stated, that the plaintiff, on the 25th of March, 1833, became tenant to the defendant, who then was rector of the parish of Wroot, in the county of Lincoln, of a certain farm, glebe land, premises, and tithes, with the appurtenances, situated in the said parish, upon the terms and conditions that the plaintiff, his executors, administrators, or assigns, should and would during the said tenancy, manage, till, sow, and cultivate the said farm, etc., in a husband like manner, according to the custom of the country, and that the defendant should, after the expiration of the said tenancy, make and pay to the plaintiff all such reasonable allowances as the plaintiff, as off-going tenant, should, according to the custom of the country, be entitled to receive from the defendant in respect of any tillage, sowing, or cultivation of the said farm, etc., according to the custom of the country. The declaration then averred mutual promises, and proceeded to allege that the plaintiff continued such tenant until the 25th of March 1834, when the said tenancy was determined by notice from the defendant to quit the farm: that the plaintiff during the said tenancy, to wit, on the first of February, 1833, and on other days, etc., according to the course of good husbandry, and in tilling, etc., the said farm according to the custom of the country, bestowed his work and labour, and used seeds and corn in sowing divers parts of the said farm, etc., with barley, blend-corn, and clover, and other seeds, and also bestowed his work and labour in cultivating the said barley, etc., until the determination of the said tenancy, and was by the determination thereof prevented from enjoying the crops arising form the said barley, etc.; and the plaintiff, according to the custom of the country, was, as off-going tenant, entitled to certain fair, reasonable, and customary allowances in respect of such tillage etc., amounting in the whole to the sum of 99l. 7s. 6d.; yet the defendant would not pay the same, etc.

    Pleas: first, non-assumpsit; secondly, that the plaintiff was not tenant to the defendant on the terms and conditions in the declaration mentioned; thirdly, that the plaintiff, according to good husbandry, and in tilling etc., according to the custom of the country, did not bestow his work or labour, or use any seed or corn, etc., or bestow his work or labour on the said barley etc., modo et forma; fourthly, that the plaintiff, according to the custom of the country, was not entitled as off-going tenant, etc.: on all which issues were joined.

    At the trial before Gaselee, J., at the last Summer Assizes for the county of Lincoln, it appeared that the plaintiff took the farm, which consisted of the parsonage-house and glebe of the parish of Wroot, in the year 1811, by lease from Dr Warren, the then incumbent, the father of the defendant, at a rent of 150l., and had occupied it ever since, until he quitted it as hereafter mentioned. In October, 1832, Dr. Warren resigned the living, and the defendant was presented to it. At Michaelmas, 1833, the defendant gave the plaintiff notice to quit at the Lady Day following; and in the following October an interview took place between the plaintiff and the defendant, and the attorney of the latter, when there was a discussion as to the plaintiff's sowing a particular field, and whether he was to be allowed for the crop. The defendant and his attorney insisted that the plaintiff was bound by the custom of the country to sow it, and to keep the farm in regular course; and a formal notice was accordingly given to the plaintiff by the defendant's attorney, a few days afterwards, not to neglect to cultivate the farm in due course of husbandry, according to the custom of the country. The plaintiff quitted, pursuant to the notice, at Lady Day 1834. It was proved, that according to the custom of the country, a tenant was bound to cultivate the farm according to a certain course of husbandry, and was entitled, on quitting, to a fair allowance for seeds and labour on the arable land, and was bound to leave the manure on the land, if the landlord chose to purchase it; and a land-valuer, who had been employed by the defendant in 1833 to value the plaintiff's tenant-right, stated that the farm was cultivated according to the due course of husbandry, and valued the allowance to be made to him at the sum of 95l. 17s. 6 1/2d. For the defendant, witnesses having been first called for the purpose of shewing that the custom did not apply to glebe land, that no tenant was entitled, by the custom, to off-going allowances, who had not paid them on coming in, and that the valuation made by the plaintiff's witness was much to high; the lease under which the plaintiff originally occupied was put in; it was dated 2nd January 1811, and was a demise for six years, to commence at Lady Day following, of the parsonage-house and glebe land, and the tithes of the whole parish of Wroot, at an annual rent of 150l. for the house and land, and 200l. for the tithes; to be void on the death, resignation, etc. of the lessor; and contained covenants by the plaintiff, that, at the end of other sooner determination of the term, he should quit, yield and deliver up the premises in good order and condition to the lessor and his successors, "and also should spend and consume three parts in four of the hay and straw arising from the said glebe land and tithes so demised as aforesaid, upon the said glebe land, and spread and bestow the compost or manure arising therefrom or thereby upon the said glebe land, and spread and bestow the compost or manure arising therefrom or thereby upon the said glebe land, or some part or parts thereof, and should leave such part of such compost or manure as should not be so spread or bestowed on the said premises at the end or other sooner determination of the said term, upon the said premises, to and for the use of the said J. W. or his successors, he or his successors paying a reasonable price for the same." It was contended that the effect of this latter stipulation was to exclude the custom of the country as to the allowances on quitting. The learned Judge reserved the point, and a verdict was found for the plaintiff for 95l. 17s. 6 d.

    In Michaelmas Term, Balguy obtained a rule nisi for a nonsuit, pursuant to the leave reserved; against which, in the present term,

    Humfrey and Waddington shewed cause. First, the plaintiff is not now bound by the stipulations of the lease at all. The defendant is no party to it; and although, when a tenant holds on after the expiration of a lease under the same party by whom the leas was granted, he holds on the terms of the lease, so far as they are applicable, that does not apply to a case like the present, where the lease had expired long before the relation of landlord and tenant commenced between these parties. At all events, the lease is only prima facie evidence of the contract, and may be rebutted by the conduct of the parties. Here, the evidence shews that the parties have themselves constructed the terms on which they were going on as being governed by the custom of the country, and that the lease was not considered as defining the terms of their contract. And the course taken by the defendant on the trial shews the same; for he did not resort to the lease until he had reason to believe that his attempts to shew the non-applicability of the custom in the particular case would not avail him. If the defendant, when he gave the plaintiff notice to cultivate according to the custom, did believe that he was not holding under the lease, his conduct was grossly fraudulent.

    But, secondly, the custom is not excluded, but is perfectly consistent with the stipulation of the lease. Parol evidence is admissible to introduce the custom as part of the contract between the parties, in all cases except where, either in express terms, or by necessary implication, the covenants in the lease exclude the custom. Now here there is one covenant only relating to the terms of quitting or the manner of cultivation, and that of a very limited nature, viz. the stipulation that the tenant shall consume three-fourths of the hay and straw on the land, and spread the manure arising from it, and leave such as shall not be so spread at the end of the term on the premises for the lessor, he paying a reasonable price for it. If this covenant excludes the custom, no terms of cultivation at all are imposed on the tenant, except as to consuming the hay and straw upon the land. If the custom is to be held excluded, it must be held to be a mutual and reciprocal exclusion of all that either party was bound to do under the custom. Therefore, the plaintiff was not bound to cultivate in a husband like manner, for no such covenant is to be founded in the lease. And the argument goes to this extent, that, if there be the slightest stipulation in the lease for any payment to be received by the tenant, though it be one not referring at all to the mode of cultivation, that excludes all other allowances for every thing done in the due course of husbandry. There is no case which furnishes an authority for such a conclusion, although the dictum of Bayley, J., in Webb v. Plummer (2 B. & Ald. 750), that "where the lease specifies any of the terms of quitting, we must then go by the lease alone," may appear to go so far: but it is submitted that that dictum must be thus qualified; that where the tenant covenants to do certain things, and there follow stipulations for allowances as to some of those things, it thence follows as a consequence that he is no to have allowances for the others. To make this case like Webb v. Plummer, the lease should have contained, a covenant by the tenant to sow the land in the last year, and to leave the manure, and then a stipulation that he should be paid for the manure only. Here there is no stipulation to cultivate in any particular way, so as to produce any manure. Senior v Armitage (Holt's N. P. C. 197) was precisely the converse of the present case. There, the lease stipulated that the manure should be used on the farm, and left at the end of the term, without payment; and the custom of the country for the landlord to make the tenant a reasonable compensation for labour, tillage, sowing, and materials, to be provided in the away-going year, was held not be excluded. That case appears, indeed, to go to the extent that the custom applies, unless it is excluded by express words. It is not necessary to contend that it is. That construction reconciles the two cases. The principle stated by Lord Mansfield in Wigglesworth v. Dallison (Dougl. 201) is applicable: "The custom does not alter or contradict the agreement in the lease; it only superadds a right which is consequential to the taking". It is submitted that he could, according to the principle laid down by Lord Mansfield. Holding v. Pigott (5 Moo. & P. 427; 7 Bing. 465) is another authority in favour of the plaintiff. In Roberts v. Barker (1 C. & M. 808), as in Webb v. Plummer, there was a stipulation in the lease applying directly to the same subject matter to which the custom applied.

    Balguy and Miller, contra. First the plaintiff was holding under the defendant on the terms of the lease. There was no evidence on any new contract on the expiration of the lease in 1817, or on the resignation of the lessor; the parties, therefore, must be taken at both these periods to have continued on the terms of the original contract entered into by the lease. It is said, that the conversation proved to have taken place after the notice to quit, was evidence of a new contract that the plaintiff should hold on the terms of the custom of the country. But that was no more than an intimation to the plaintiff that he was not to leave the land waste; an obligation which the very relation of landlord and tenant imposed upon him, without reference to the custom. If there had been no specific contract, he could not have done that. The notice, at all events, meant no more than what is always understood between landlord and tenant as being the duty of the latter.

    Then, with regard to the other point; it may be considered as if it arose between the original parties to the lease. To entitle himself to these allowances as against the original lessor, the plaintiff ought to have expressly stipulated for them; if he omits to do so, but does stipulate for others, Webb v. Plummer is a distinct authority that he cannot claim them. But it is said there was no stipulation in this lease as to the terms of quitting. But surely the covenant as to leaving the manure for the use of the landlord is one of the terms of quitting, though there might be many others. The parties are contemplating the expiration of the tenancy, and what is then to be done between them with respect to the manure. The mention of that, therefore, according to Webb v. Plummer, is a virtual exclusion of every other stipulation referring to the expiration of the tenancy. Bayley, J., in that case, says without qualification: "If a lease speaks distinctly of the allowances to be made upon quitting, it seems to me to exclude all others which are not named." Holroyd, J., expresses himself to the same effect. The only possible inference from that case is, that, where any one or more terms on which the parties are to separate are introduced into the lease, the introduction of them is an exclusion of all others. Senior v. Armitage does not apply; here the stipulation in question is in accordance with the custom, not in breach of it. The observation of Lord Lyndhurst, C. B., in Roberts v. Barker (1 C. & M. 810), applies to the present case: that "if the parties meant to be governed by the custom, the tenant would be bound to leave the manure, and would be entitled to be paid for it." That case much resembles the present in its circumstances, and was also, like this, the case of a party holding on the terms of an expired lease.

    PARKE, B.: We will take some time to consider this case, and will endeavour to obtain a fuller account of the decision in Senior v. Armitage. It is very important to lay down the rule with clearness if we can.

    Cur. adv. vult.

    In this term the judgment of the Court was delivered by

    PARKE, B. (After stating the pleadings he continued): It appeared on the trial that the plaintiff took the farm of the late incumbent, the father of the defendant, on the 2nd of January, 1811, by a lease under seal, comprising the tithes of the parish also, at the rent of 150l. for the farm, and 200l. for the tithes, payable at Michaelmas and Lady Day, for the term of six years from Lady Day, 1811, if the lessor should so long continue incumbent. The plaintiff occupied until October, 1832, when the incumbent resigned, and the defendant, his son, succeeded him in the living. The plaintiff continued to occupy the farm and tithes, paying the same rent, at the same times, until Lady Day, 1834, when he quitted, in pursuance of a notice given to him by the defendant; and he claimed in this action the allowances for seed and labour due to the off-going tenant by the custom of the country.

    The defendant resisted the claim, on the ground that he held under the terms of the written lease, and that by those he was not entitled to any such allowances.

    It was proved, that, by the custom of the country, a tenant was bound to farm according to a certain course of husbandry for the whole of his tenancy, and at quitting was entitled to a fair allowance for seed and labour on the arable land; and was obliged to leave the manure, if the landlord would purchase it.

    In October, 1833, after the notice to quit, the defendant, his agent, and the plaintiff, had an interview, and the agent insisted that the plaintiff should sow the arable land, and that he was bound to keep the farm in regular course. The plaintiff accordingly did afterwards sow the arable land, for which he claimed the compensation in question.

    Two points were made on the argument before us; first, whether the plaintiff was bound by the terms of the lease at all, after the resignation of the lessor; secondly, whether, if he was, those terms excluded him from this claim.

    Upon the first point we think that the plaintiff must be taken, in the absence of evidence to the contrary, to have held under the defendant on the same terms that he held under his father, so far as those terms were applicable to a tenancy from year to year. No evidence was given to the contrary on the trial, and indeed this objection does not appear to have been there raised on the part of the plaintiff.

    The second question requires some consideration. The custom of the country as to cultivation and the terms of quitting with respect to allowances for seed and labour, is clearly applicable to a tenancy from year to year; and therefore if this custom was, by implication, imported into the lease, the plaintiff and defendant were bound by it after the lease expired.

    We are of opinion that this custom was, by implication, imported into the lease.

    It has long been settled, that, in commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been established and prevailed; and this has been done upon the principle of presumption that, in such transactions, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to those known usages. Whether such a relaxation of the strictness of the common law was wisely applied, where formal instruments have been entered into, and particularly lease under seal, may well be doubted; but the contrary has been established by such authority, and the relations between landlord and tenant have been so long regulated upon the supposition that all customary obligations, not altered by the contract, are to remain in force, that it is too late to pursue a contrary course; and it would be productive of much inconvenience if this practice were now to be disturbed.

    The common law, indeed, does so little to prescribe the relative duties of landlord and tenant, since it leaves the latter at liberty to pursue any course of management he pleases, provided he is not guilty of waste, that it is by no means surprising that the Courts should have been favourably inclined to the introduction of those regulations in the mode of cultivation which custom and usage have established in each district to be the most beneficial to all parties.

    Accordingly, in Wigglesworth v. Dallison, afterwards affirmed in a writ of error, the tenant was allowed an away-going crop, though there was a formal lease under seal. There the lease was entirely silent on the subject of such a right, and Lord Mansfield said that the custom did not alter or contradict the lease, but only superadded something to it.

    This question subsequently came under the consideration of the Court of King's Bench in the case of Senior v. Armitage, reported in Mr. Holt's Nisi Prius Cases. In that case, which was an action by a tenant against his landlord for a compensation for seed and labour under the denomination of tenant-right, Mr. Justice Bayley, on its appearing that there was a written agreement between the parties, nonsuited the plaintiff. The Court afterwards set aside that nonsuit, and held, as appears by a manuscript note of that learned Judge, that, though there was a written contract between landlord and tenant, the custom of the country would be still binding, if not inconsistent with the terms of such written contract; and that, not only all common law obligations, but those imposed by custom, were in full force where the contract did not vary them. Mr. Holt appears to have stated the case too strongly when he said that the Court held the custom to be operative, "unless the agreement in express terms excluded it;" and probably he has not been quite accurate as attributing a similar opinion to the Lord Chief Baron Thompson, who presided on the second trial. It would appear that the Court held that the custom operated unless it could be collected from the instrument, either expressly or impliedly, that the parties did not mean to be governed by it.

    On the second trial, the Lord Chief Baron Thompson held that the custom prevailed, although the written instrument contained an express stipulation that all the manure made on the farm should be spent on it or left at the end of the tenancy, without any compensation being paid. Such a stipulation certainly does not exclude by implication the tenant's right to receive a compensation for seed and labour.

    The next reported case on this subject is that of Webb v. Plummer, in which there was lease of down land, with a covenant to spend all the produce on the premises, and to fold a flock of sheep upon the usual part of the farm; and also, in the last year of the term, to carry out the manure on parts of the fallowed farm pointed out by the lessor, the lessor paying for the fallowing land and carrying out the dung, but nothing for the dung itself, and paying for grass on the ground, and thrashing the corn. The claim was for a customary allowance for foldage, (a mode of manuring the ground), but the Court held, that, as there was an express provision for some payment on quitting for the things covenanted to be done, and an omission of foldage, the customary obligation to pay for the latter was excluded. No doubt could exist in that case but that the language of the lease was equivalent to a stipulation that the lessor should pay for the things mentioned, and no more.

    The question then is, whether, from the terms of the lease now under consideration, it can be collected that the parties intended to exclude the customary obligation to make allowances for seed and labour.

    The only clause relating to the management of the farm (except the covenant to repair) is one which stipulated that the plaintiff shall spend and consume on the farm three-fourths of the hay and straw arising not only from the farm itself, but from the demised tithes of the whole parish, and spread the manure, leaving such as should not be spread at the end of the term for the use of the landlord, on paying a reasonable price for the same. This provision introduces and has a principal reference to a subject to which the custom of the country does not apply at all, namely, the tithes, and imposes a new obligation dehors that custom, and then qualifies that obligation by an engagement on the landlord's part to give a remuneration, by re-purchasing a part of the produce in a particular event. It is by no means to be inferred from this provision that this is the only compensation which the tenant is to receive on quitting. If, indeed, there had been a covenant by the tenant to plough and sow a certain portion of the demised land in the last year, being such as the custom of the country required, he being paid on quitting for the ploughing, or to plough, sow, and manure, he being paid for the manuring, the principle of expressum facit cessare tacitum, which governed the decision in Webb v. Plummer, would have applied; but that is not the case here. The custom of the country as to the obligation of the tenant to plough and sow, and the corresponding obligation of the landlord to pay for such ploughing and sowing in the last year of the term, is in no way varied. The only alteration made in the custom is, that the tenant is obliged to spend more than the produce of the farm on the premises, being paid for it in the same way as he would have been for that which the custom required him to spend.

    We are therefore of opinion that the plaintiff is entitled to recover, and the rule must be discharged.

    Rule discharged.


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