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Colonial Cases

McKillop v. Mawhood, 1877

[land law]

McKillop v. Mawhood

Supreme Court for China and Japan
Mowat, 15 May 1877
Source: The North China Herald, 26 May 1877




Shanghai, May 15th.

Before R. A. MOWAT, Esq., Acting Assistant judge.


   Mr. WAINEWRIGHT for plaintiff.

   Mr. RENNIE for defendant.

   The plaintiff, who is owner of a certain dwelling house and premises known as No. 41, Kiangse Road, claimed from the defendant possession of the said premises, and mesne profits at the rate of Tls. 60 per month, from the 15th of November, 1876, until possession is given.

   Me. WAINEWRIGHT having briefly opened the case, read the petition and answer, as follows:-


  1. - The plaintiff is the owner of a dwelling hjouse and premises at Shanghai known a s No. 41, Kiangse Road, and of a lot of land upon which the said house is built, registered at her Britannic Majesty's Consulate at Shanghai as Lot No. 213, and bounded on the North by the Soochow Road, on the South by the Hongkong Road, on the East by premises in the occupation of defendant, and on the West by the Kiangse Road.
  2. - On or about the 15th of March, 1875, the plaintiff agreed verbally with the defendant to let to him the  said dwelling house and land (hereinafter referred to as "the said premises"_) from the said 15th day of March, 1875, until the 15th day of November, 1876, at the monthly rent of Thirty Shanghai Taels; the said rent being more than two-thirds part of the full rental value of the said premises, and the defendant thenceforth occupied the said premises accordingly.
  3. - On the 15th day of November, 1876, the plaintiff demanded of the defendant possession of the said premises, but the defendant refused to give possession of the same, and has continued to retain and still retains possession of the same against the will of the plaintiff.
  4. - The defendant has paid the rent of the said premises up to the 15th day of November, 1876, but he has not since that date made any payment to the plaintiff.
  5. - The plaintiff claims possession of the said premises and mesne profits at the rate of Sixty Taels per month from the 15th day of November, 1876, until possession be given.

   The plaintiff therefore prays:-

  1. - That the defendant may be directed to deliver to the plaintiff possession of the said premises, and to pay to the plaintiff mesne profits at the rate aforesaid, and for the period aforesaid, together with the plaintiff's costs of suit.
  2. - That the plaintiff may have such further or other relief as the nature of the case may require.



   The defendant does not know whether the plaintiff is the owner, or agent of the owner or owners, of the premises mentioned in the first paragraph of the said petition, and leaves the same to proof.

2nd. - The defendant denies the allegations contained in the 2nd paragraph of the said petition.

3rd. - The defendant admits the allegations contained in the 3rd paragraph of the petition.

4th. - The defendant admits that he has paid the rent of the premises as stated in the 4th paragraph of the petition, and says further that he has always been ready and willing, and is still ready and willing, to pay to the plaintiff the monthly rent which has since accrued due; and before suit he duly tendered, and offered to pay to the plaintiff the sum of Tls. 132.29, being the amount of such monthly rent then due (less the sum of Tls. 17.71  due from the plaintiff to the defendant for certain necessary repairs made and executed by him under the terms of his tenancy), and the plaintiff refused to receive the same, and the defendant now brings into Court the  said sum of Tls. 132.29, and says that the same is sufficient to satisfy all pecuniary claims of the plaintiff against the defendant in this suit.

5th. - The defendant repudiates the claims of the plaintiff set forth in the 5th paragraph of the petition. - In answer to the petition generally, the defendant says that he entered into possession of the premises described in the petition under and by virtue of the terms of a certain lease bearing date the 15th day of November, 1870, which said lease is still unexpired and undetermined, and that the rent paid by him to the plaintiff has been paid under and in accordance with the terms of the said lease, subject only to certain reductions in amount thereof agreed upon between the defendant and plaintiff for certain good and valid considerations moving from the defendant to the plaintiff in that behalf.

   JOHN McKILLOP, the plaintiff, then deposed - I am the present owner of the premises, 41, Kiangse Road, occupied by the defendant.  I became the owner on the 8th Nov., 1873.  Messrs. Edbrook & Co. were in possession of the premises at that time.  I don't know of my own knowledge who they were.  I received rent for the premises several times from them.  The rent was paid monthly in advance, Tls. 45.  This continued till the 15th March, 1875.  At about that time I entered into an agreement with the defendant for a new tenancy, till the 15th November, 1876.  The rent was to be Tls. 30 per month.  There was a piece cut off at that time by a new road.  The agreement was not in writing.  Defendant had been the occupant of the place for some time previous to this.  He several times during the period the agreement was running, tried to get me to prolong the term.  I refused to. I demanded possession of the premises on the 15th Nov.  He refused to give it, and has continued to do so.  He is still in occupation.  On the 15th November he sent me the rent.  I can't say whether it was money or a check.  Later, he sent me a letter with an enclosure which I did not read through, but returned with the enclosure.  That was in December or January. He has tendered nothing since.

   Tls. 30 was rather under the value then.  Perhaps it was fully two-thirds of it.  I have been nearly 16 years in Shanghai, and am pretty well acquainted with the value of property.  I have had to do with property in that time.  Tls. 45 was in my opinion about the fair value of the premises in 1870, as they were then.

   Cross-examined b y Mr. RENNIE - I bought these premises from Hooper & Co., I think.  Messrs. Purdon and Clark, the trustees, transferred it to me.  I bought it privately.  I know Edbrook and Co. had a lease of the premises.  I have a copy of that.  I was aware of the contents.  I took the property subject to that lease.  I never gave the occupiers under that lease notice to quit. (Shown three rent receipts from July, 1874, to 22nd February, 1875.)  These are receipts for rent given by me.  The first is addressed to F. Mawhood.  I took him to be Edbrook and co.  The second is similar.  The third is to "Edbrook & Co. by the hands of Mawhood & Co."  I took him to be the tenant under that lease.  (Shown eleven more receipts.)  All these, after March, 1875, are addressed to Mawhood alone.  The pencil note on the receipt of 19th Jan., 1875, is in my hand-writing.  The words are, "The lease is from the 15th of the month."  I meant by "the lease," the original lease.  It was mutually arranged for our mutual benefit that there should be new terms.  There was to be a road put through the premises in Nov., 1876, and Tls. 15 monthly was to be taken off the rent.  I said to him that I would let him have the premises at Tls. 30 until Nov., 1876, if he would consent to my putting the road through when I wanted it.  Nothing was said with regard to the old lease, as far as I recollect.  I said nothing about giving him one year's notice to quit.  That was a perfectly amicable interview.  Later ones were not.  I did not become excited, nor threaten to assault him, nor he me.  About a month before the termination of the lease, he asked me to do repairs.  I told him it was not worth my while, as his lease was so nearly out. When I did them, it was to please him.  I understood it was my duty as landlord to make external repairs.  When I told him what I have stated, he told me he intended to remain.  It was in his own compound that I made the new arrangement with him.  I never spoke to him about it after that time till a month before the expiration of the new lease.  I expected compensation from the Municipality fort the road.  I did not expect as much as I list of rent.  I was bound to do it by the 15th November.  I have been offered more than Tls. 30 a month for the premises.  I am not willing to let him have them now at a higher rent.  I was willing at one time to do it to avoid litigation. 

   The first amount he sent was, I think, Tls. 30; the second Tls. 60, less deductions.  I would have objected to deductions - I would do what was necessary myself.  I told him so.  I received Tls. 200 compensation for the road.  I had expected and claimed more.  I hoped to receive more when I agreed to let them have the road.  I did not know that Mawhood and Edbrook were partners.  Mr. Mawhood may have told me that the lease has been assigned to him - at any rate I treated him as if it had been.

   Re-examined - I was led to understand that it was a lease that terminated six years hence.  I was told so, in consequence of the road.  It was Mr. Purdon who told me.  When I purchased the property, there was already an arrangement for the making of the road in 1876.  I was cognizant of the arrangement.  I have seen letters.  The price was to be Tls. 700.  I did not give any notice to quit, because I made a fresh tenancy.  I am quite sure that I mentioned it was to end on the 15th Nov., 1876.  I recollect two distinct occasions on which he asked me to let him have the lease prolonged.  I refused because, as I told him, he could not pay the rental I should want.  I always had repaired.  I considered it my interest to repair.  I think I was offered a higher rental both before and since the 15th November, 1876.

   By His HONOUR - The broad was not put through till after November, 1876.  There was discussion in the meanwhile between the council and myself as to the terms.

   Mr. WAINEWRIGHT argued that by Section 1 of the Statute of Frauds, the first lease need not have been in writing.  It was surrendered by operation of law.  The new one need not be in writing.  There were three features in the case - less land, less rent, and a new term.  In support of his argument, Mr. Wainewright quoted Smith and Siden at p. 250; Woodfall (8th edition) at p. 256; Crowley v. Vitty, 21 L.J., Exch., p. 135; Lyon v. Reed, 13 L.J. Exch., p. 377; and Furnival v. Grove, 30 L.J. C.P., p. 3.

   This closed the plaintiff's case.

   Mr. RENNIE, in opening the case for the defendant, said it was simply a question of credibility.  He called

   FREDERICK MAWHOOD, who deposed - I was a partner in the late form of Edbrook and co.  Whilst such, I became an occupant with him of the premises in question, under the document now shown me.  The signature, "Edbrook and Co.," is written by me. (Signatures admitted.)  I went home in September, 1873, and returned in July, 1874.  On my return I at once dissolved partnership, and took over the lease.  We executed the assignment endorsed.  I went on paying rent to the plaintiff.  I understood he was the owner.  I obtained these receipts (put in.)  In December, 1874, plaintiff came to me, and asked what I would take for that portion of the premises which the road would cover and cut off.  I said it would require a say or so to consider.  In a day or two he came again, and asked if I had made up my mind.  I said, "Yes; Tls. 15 per month, and that he was to bear the expense of removing the shops."  He agreed to theses terms.

   In January, I sent the rent, short the Tls. 15.  He came round and repudiated the matter.  In March, similar arrangements were made.  Not the slightest reference was ever made to my lease terminating in November.  He told me he intended making arrangements with Messrs. Canny and Co. as to putting up a cotton press, and he was not sure whether he had not done wrong.  On the 15th November, 18786, he came down in an excited manner and demanded possession of my premises.  In August or September, 1876, he first mentioned anything about the approaching termination of the lease.  It arose in connection with repairs.  He told me it was not worth my while to have the trouble of workmen, as I had only a couple of months.  I had been once or twice asking what price he would sell the land for.  Not to my knowledge did I ask him to give me a linger lease.  In the early summer of 1876, I asked him to make repairs, and he did them later on.  I wrote to him after he refused to do the repairs, in August or September, and gave him notice that I would have them done, if he did not do them.  He did not, and Mr. A. Chalmers did them for $22.    On the 15th November, 1876, I had sent him the rent, and it was returned.  I never sent any more.  I did not understand that I had to go out.  I had got as legal opinion, and never gave plaintiff to understand that I was going out.  I understood, also, that I was subletting the portion of the premises I gave up to him, and that I could have them again on a month's notice.

   Cross-examined - Not a single word was said about the tenancy ending on the 15th November, 1876.  To the best of my knowledge, I never asked for any extension.  I got along so badly with him, that I was not likely to want to remain longer.  I told him in the Canton Road, that I was very thankful I did not have long to stop.  I thought, according to your (Mr. Wainewright's) opinion, that I was to go out on 15th Nov., 1876.  (Mr. Wainewright's opinion, of 20th Sept., 1876, put in.)  Plaintiff repaired between March and August, 1875.  I received no refusal in writing to do these repairs.

   Defendant was not re-examined.

   By His HONOUR - The houses were moved in March.  Plaintiff paid for them.  It was early in 1875, we began to get on unpleasantly.  I could terminate my tenancy on three months' notice.  I did not, because it is not easy to find suitable premises for a man in my business.

   Mr. RENNIE in summing up, said there must be a clear preponderance of evidence establishing a new tenancy, before the Court would throw over the old lease.

   Mr. WAINEWRIGHT having replied,

   His HONOUR reserved judgment.

May 21st.

   In this case His HONOUR today delivered the following


   This is a very difficult case to decide, inasmuch as the decision depends on whether a verbal agreement, entered into over two years ago between the plaintiff and defendant, did or did not contain a particular stipulation, and the plaintiff and the defendant (who are the only parties who were present when the agreement was come to) are in direct conflict on the subject.

   The defendant was the assignee of a lease of certain premises which had been purchased by the plaintiff from the original lessors, and the question between the plaintiff and defendant is whether in March, 1875, when certain new terms as to the holding, about which there is hardly any real dispute, were agreed upon, it was further agreed that the tenancy should expire on the 15th November, 1876.  The plaintiff asserts that such was the case; the defendant denies it, and alleges that subject to these undisputed variations the old lease was to continue. The question is thus one purely of credibility, and it was treated as such at the hearing by the Counsel engaged.

   Now, I quite admit (as was urged on behalf of the defendant) that  where there is merely one oath against another, a Court will presume in favour of the defendant, but that is a rule - it hardly amounts to a principle - which is to be had recourse to only as a last resort.  A Court or a jury are not, because they have ready to their hands such a simple and convenient method of disposing of a case, at liberty to get rid of the obligation cast upon them of scrutinising the evidence, weighing the probabilities, and drawing inferences from the expression and demeanour of the witnesses.  And if, after employing these means, they have in their minds a reasonable certainty that the facts were as the plaintiff alleged, they are bound to give their verdict accordingly, although by so doing they may be imputing inaccuracy or something worse to one man on the uncorroborated word of another.  It is only when, after recourse had to such guides as I have mentioned, the matter is still evenly balanced, that they ought to fall back on the rule I have alluded to.

   Now, in the present case, sitting as a jury, I have that reasonable degree of certainty that I have spoken of, that the plaintiff's version of the facts is the correct one.  In the first pave, it is the more probable one.  Not even the plaintiff, I imagine, would think of letting his premises to a man without any stipulation as to when the tenancy was to end, and an obvious reason for fixing the 15th November, 1876, was because that was the date, in the opinion of both parties at the time, when the original lease expired - in which view nothing was more natural than to adopt the term of the old tenancy for the term of the new one.  It may very well be that there was not the same prominence given, in their conversation when the arrangement was made, to the date that there was given to the new rental, for example - but that was for the same reason, viz., that it was so well understood by both that their relationship of landlord and tenant, whether the lease was to go on unvaried, or whether a new tenancy was created, was to end in November, 1876, that they did not think it necessary to dwell much upon that point.

   I have said that, in the opinion of both parties at the time, the old lease was to expire in November, 1876.  The plaintiff expressly says so, and as to the defendant I have not the slightest doubt that he, like the plaintiff, believed it ended in November, 1876, and that he continued in that belief till, in  September, 1876 (eighteen months after the arrangement come to), he procured a legal =opinion on the point.  Otherwise it is impossible to understand his self-gratulation that, as he got on badly with his landlord, he had not long to stop, or to explain his two attempts to induce the plaintiff to prolong his term.  (It is true he says he did not ┬úto the best of his knowledge" make any attempt of the kind, but this is a thing he could hardly forget - or, if his memory is so unretentive as regards a comparatively late matter, it is obvious that it would be unsafe to trust it for a matter that occurred as far back as March, 1875.  The plaintiff is positive on the point, and I fully believe him).

   In addition to the plaintiff's version being the more probable one, I think his memory is more to be relied on than the defendant's.  Besides the instance I have just given, it will be enough to refer to the view which the latter says he took of the surrender of the part of the premises cut off by the broad.  He says he understood that he was sub-letting that portion to the  plaintiff, and that he could have it again on a month's notice; and this though the plaintiff, at the defendant's stipulation, removed certain houses or shops that stood there to the other end of the premises, and proceeded to build on the spot thus rendered vacant.  It would not be much more imaginative to say that he was, on a similar notice, to have the land that was to be taken up by the road given back too.  And Mr. Wainewright's comment on such evidence - that when a witness's memory is shewn to be unreliable in one particular the Court ought not to rely upon it in others, especially where he is contradicted by witnesses whose memory is now shown to be inaccurate - id of force.

   On these grounds, therefore, the greater probability of the plaintiff's version and his mire reliable evidence, I have come clearly to the conclusion that the agreement was as he alleges it was.  There will accordingly be judgment for the plaintiff for the recovery of the premises in question.

   As to the claim for mesne profits at the rate of Tls. 60 per month, from the 15th November, 1876, until possession be given, I do not understand that this is claimed under the statute, as no demand in writing was proved.  No evidence was given as to the rental that plaintiff could have procured - all he says is, he was offered a higher rental since the 15th November.  I do not, however, propose to decide this point at present.  I shall require evidence on the point before I do, and I wish also to ascertain before dealing with it whether the defendant delivers up possession peaceably and without further proceedings.

   There will be no costs up to this point, as the litigation has been brought about by the neglect by the plaintiff of the plain precaution of having the agreement out in writing.  A simple letter forwarded to the defendant for his confirmation of the terms, would have been quite sufficient if so confirmed (as I doubt not it would have been), and such a precaution ought not to have been omitted.


Mr. WAINEWRIGHT pointed out that of the question of what rent should be paid by the defendant from November until the time he gave up possession was allowed to stand over, and defendant gave up possession, it might do away with the plaintiff's chance to levy distress, if such a thing became necessary.

   His HONOUR said he was prepared to take evidence on the point, if it became necessary, as soon as the plaintiff was ready with it.

   Mr. WAINEWRIGHT, after conference with his client, said he was not prepared with evidence at that moment.

   His HONOUR reminded him that there was a considerable sum in Court to meet the rent.

   Mr. WAINEWRIGHT replied that he could show that the amount was inadequate, and asked if the plaintiff was to have possession immediately.

   His HONOUR - Yes, defendant must give up possession immediately.

   The parties then left the Court.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School