LORD JUSTICE JENKINS: This is an appeal by the defendants, Freehold Investment (Leytonsfone) Ltd. from a Judgment of Mr Justice Vaisey dated the 13th June, 1958, in an action brought against them by the plaintiffs, the Granada Theatres Ltd., concerning the liability of the defendants under a landlord's repairing covenant contained in a lease dated 12th June, 1941, by the defendants' predecessors in title to the plaintiffs' predecessors in title, of the premises known as the Century (formerly the Academy) Cinema, 350A High Road, Leytonstone. The lease was for a term of 21 years from 2nd June, 1941, at a rent of £750 per annum increasible as there is mentioned. The term was assigned to the plaintiffs on the 13th December, 1954. The landlord(s repairing covenant is drawn by reference to a repairing covenant by the lessee, which is in these terms. It is No.3 in the fasciculus of lessee's covenants contained in Clause 2 of the lease:
"The lessee for itself and its assigns and to the intent that the obligations may continue throughout the term hereby created covenants with the lessors as follows....(3) To keep the demised premises and the sanitary and water apparatus and all additions and improvements thereto in good and substantial repair and condition and properly decorated and in a state in every respect fit for cinematograph entertainments but nothing in this clause contained shall render the lessee liable for structural repairs of a substantial nature to the main walls roof foundations or main drains of the demised building".
The landlord's repairing covenant is in these terms -- it is No.2 in the fasciculus of landlord's covenants contained in Clause 3 of the lease:
"(2) To (except so far as the lessee is liable under the lessee's covenants hereinbefore contained) repair maintain and keep the main structure walls roofs and drains of the demised premises in good structural repair and condition at all times during the said term".
The effect of this covenant read in conjunction with the lessees' repairing covenant appears to be that the defendants are liable under it for structural repairs of a substantial nature to the main walls, roof, foundations or main drains of the demised building; whereas the plaintiffs are liable under the lessees' repairing covenant for all repairs not falling within that description. This follows, I think, from the exclusion from the landlords' repairing covenant of repairs "for which the lessee is liable under the lessees' covenants hereinbefore contained", coupled with the obligation cast on the lessee by the lessees' repairing covenant to do all repairs with the exception of structural repairs of a substantial nature to the main walls, roof, etc.
The questions in the case are in substance (a) whether certain works of repair done or needing to be done (1) to the main roof (formerly slated) and smaller back roof (at all material times covered with asbestos sheeting) of the auditorium of the cinema, and (ii) to the front elevation (consisting of a 9 in. brick wall rendered with cement) of the demised premises, or any and if so which of these works, are repairs of the description for which the defendants are liable upon the true construction of these ill-drawn covenants; and (b) if so, whether the plaintiffs have lost, or are precluded from asserting; their rights in respect thereof on one or other of the grounds relied on by the defendants, to which I will later refer.
To anticipate matters, it appears that after a protracted dispute, the plaintiffs themselves carried out the work on the auditorium roofs which they considered to be necessary in order to put the roofs in the state of repair demanded of the defendants under the landlords' repairing covenant. Having carried out this work, the plaintiffs began the present action in which they claimed (to put it shortly) (1) £961 as damages for the cost incurred by the plaintiffs in executing the roof repairs, and (2) a declaration that upon the true construction of the lease the repairs to the front elevation of the cinema were the liability of the defendants.
By the Order under appeal (again putting it shortly) the learned Judge made declarations in favour of the plaintiffs to the effect that upon the true construction of the lease the repairs to the roof of the cinema and the repairs to the front elevation of the cinema required by items 84 and 85 of the schedule of dilapidations, referred to in Paragraph 13 of the Statement of Claim, and set out in the schedule to the Order, were the liability of the defendants, and ordered an inquiry what damages had been sustained by the plaintiffs by reason of their having carried out the repairs to the roof referred to in Paragraph 11 of the Statement of Claim. In reaching the conclusions to which the Order gave effect, the learned Judge held that all the repairs in question were structural repairs of a substantial nature and, as such, within the scope of the landlords' repairing covenant. He also rejected an argument advanced on the defendants' side to the effect that even if the repairs in question were in cumulo structural repairs of a substantial nature, they were no more than the accumulated product of individual wants of repair, each of which considered separately ought to have been remedied by the plaintiffs under the lessees' repairing covenants, and that the defendants accordingly had a claim against the plaintiffs in respect of these individual breaches sufficient to wipe out the plaintiffs' claim against them under the landlords' repairing covenant. The learned Judge refrained from deciding whether this contention could be supported in principle, rejecting it on the ground that in the present case the plaintiffs only acquired the term on the 13th December, 1954, and served their schedule of dilapidations on the 31st January, 1955; the inference being that in his view there could not during that short period have been any material contribution by the plaintiffs to the accumulated disrepair. A further point taken on the defendants' side which loomed large in the argument before us, and which no doubt was ventilated before the learned Judge, and must inferentially be taken as having been rejected by him although he did not expressly deal with it, was to the effect that the plaintiffs had forfeited any claim they might otherwise have had in respect of the roof repairs because the defendants had at all material times been ready and willing to do the necessary repairs, but the plaintiffs had prevented the defendants from doing such repairs by refusing to allow the defendants access to the premises for that purpose, and ultimately doing the repairs themselves. There is one small question of fact which appears to have been misapprehended by the learned Judge. In his judgment he attributes the £961 wholly to the cost of repairing the main roof of the auditorium, whereas in fact it was made up of £807 for the main roof and £154 for the rear roof, both roofs, and not the main one only, having been repaired by the plaintiffs themselves before action brought.
I must now refer to the history of the dispute, and in view of the point taken on the defendants' side to the effect that the plaintiffs in any case disqualified themselves from relief in respect of the roof repairs by wrongfully preventing the defendants from doing those repairs and ultimately doing them themselves, it must, I fear, be referred to in some detail. It will be best appreciated through the correspondence, to which I will next turn.
On the 31st January, 1955, the plaintiffs (having acquired the term on the 15th December, 1954) wrote to the defendants enclosing a schedule of "dilapidations and wants of repair". The covering letter included the following material paragraphs:
"A schedule of dilapidations and wants of repair has been prepared relative to the structure of the building which, in accordance with Clause 3(2) of the lease dated the 12th June, 1941, is the responsibility of the freeholders. We enclose a copy of this schedule and should be glad to have your confirmation that this work can be carried out at the same time as the principal work and that you agree that the costs thereof will be your responsibillty".
The enclosed schedule included the following items:
"Auditorium roof: Reinstate with new all missing or defective slates and refix all loosened slates to the slated roof of the front portion of the auditorium. Reinstate all missing ridges and refix where loosened and make good all defective flashings, and leave the whole of slated roof in secure and watertight condition".
Then lower down under the general heading "Auditorium roof", there is:
"Reinstate with new all cracked or defective asbestos roof sheeting to the rear half of auditorium roof and reinstate all cracked or defective ridge pieces and eaves filler pieces and make good all defective flashings and leave the whole of the asbestos roof in secure and watertight condition".
Then later on in this schedule (at page 4 of the correspondence) there is this:
"Front elevations and returns to same. Hack off the whole of the loose and defective cement rendering to the front elevation and returns to same. Cut out all defective or cracked brickwork and make good with new and reinstate cement rendering complete with all moulded work etc. as previously existing".
On the 9th February, 1955, the defendants' solicitors replied as follows, after acknowledging the plaintiffs' letter:
"We have perused the schedule of dilapidations which you require our clients to carry out under the terms of Clause 3(2) of the lease but we would draw your attention to the provisions of Clause 2(3) of the lease and would suggest that your architect reconsiders the schedule in the light of the terms of this clause".
To this the plaintiffs rejoined on the 18th February (page 7 of the correspondence):
"With reference to your letter of the 9th February, we have taken the matter up again with our architect and he has replied that Clause 2(3) of the lease has been taken into consideration by him in the preparation of the schedule. I shall be glad if we can now have the confirmation of the freeholders that the work referred to in the schedule can be carried out at the same time as the principal work and that they agree that the costs will be their responsibility".
I should say that the principal work, to which reference is from time to time made, consisted, as I understand it, of alterations with which this case is not concerned.
On the 2nd March, 1955, the defendants' solicitors replied:
"We thank you for your letter of the 18th ultimo upon which we have now had an opportunity of taking our clients' instructions. In our opinion and in the opinion of our clients the works referred to in the schedule do not constitute 'structural repairs of a substantial nature' so as to bring them within the exception contained in Clause 2(3) of the lease".
Then I can go to the next page, page 9, from the plaintiffs to the defendants' solicitors, and they say this in the second paragraph of their letter:
"Your opinions as to the interpretation of the covenants regarding structural repairs are contrary to the advice received by us. We cannot delay our proposals indefinitely. We therefore propose to go ahead and to look to your clients for the costs of the repair work as detailed in the schedule enclosed in our letter of the 31st January. Alternatively, we would be pleased to meet your clients to discuss the matter further if they so wish".
Then on page 10 of the correspondence there is a letter from the defendants' solicitors to the plaintiffs and they suggest
"that a meeting be held together with our clients at our offices and perhaps you will telephone our office to arrange a convenient appointment".
Nothing seems to have come of this or any other meeting between the parties.
Then after an interval which appears to have been taken up with discussions concerning other matters relating to the cinema premises, the defendants' solicitors wrote this to the plaintiffs on the 27th April, 1955, at page 25 of the correspondence. I need only read the second paragraph:
"Quite frankly at the moment I don't quite know now what you want to do as at our last meeting, if you will recollect, we never reached the stage of discussing whether there is any responsibility on the part of the freeholders to carry out any repairs or not, but I seem to remember that Mr Coles said that if you carried out the proposed scheme of alterations, then there would be no necessity in any case for the freeholders to carry out the odd items of work you say is their responsibility".
The next letter to which I should refer is at page 27, and it was an estimate given to the plaintiffs by builders named H. Darby & Son (Leyton) Ltd. for repairs to the roof on two alternative bases. They say:
"We have pleasure in submitting specification and estimate as follows: Main roof",
and there is a comprehensive programme set out, into the details of which I need not enter, but the method of repair proposed involved stripping the existing slates and reslating the whole roof. That project came out to the considerable sum of £1016. The quotation goes on with an alternative estimate:
"Scaffolding and coverings as described above. Strip existing slates and provide and fix corrugated asbestos sheeting",
and there are other details which I need not trouble with. That alternative estimate was put at the revised and reduced figure of £807. It appears that by a letter referred to as page 27A, but which I do not think was ever with our papers, Mr Darby gave a further estimate concerning a smaller roof at the back which had always been covered with asbestos. He quoted for that £154, making with the £807 the total claim of £961. Then there were two letters from two firms of roofing contractors, and the first of them, which is from John Williams & Co. Rotherhithe Ltd. addressed to Messrs Darby, said this with reference to their quotation:
"We consider that the only old slates worth re-using are the Welsh slates, which have been fixed in repairs in recent years. The original slates are foreign and show severe scaling caused by the action of the weather on an impurity in the body of the slate which we believe is 'iron pyrites'. In some cases the scaling goes right through the slates. The action is still going on and in time the slating will not keep out the weather".
Then the other of these two letters is at page 29 of the correspondence from W.M. Walker & CO. Ltd. to Mr Coles, the plaintiffs' architect and is dated the 1st June, 1955. They say:
"We confirm that after a careful inspection of the slated roof, we could not consider re-using the old slates. These slates are not Welsh slates with the long life associated with Welsh slates, and apart from the pyrites in the slates that can be readily seen, the slates show signs of disintegration on the heads and covered parts of the slates".
Then on page 30 there is a letter dated the 7th June, 1955, from Mr Coles, the plaintiffs' architect, to Mr Rusha, the defendants' architect, and I can take that letter shortly. The effect of it is to give to Mr Rusha the upshot of the alternative programme suggested by Mr Darby, including the £154 for the small back roof, which is the same in both alternatives, and having set out the nature of the work and the figures and made reference to the letters from the roofing contractors, Mr Coles concluded thus:
"I shall be obliged if you will inspect these roofs and agree with me that this work has to be done. If you would like to meet my assistant dealing with this matter, I shall be happy to arrange accordingly".
Then on the 15th June, 1955, on page 51, Mr Rusha acknowledged Mr Coles' letter giving the quotations for the roof repairs and said:
"I have now received instructions from my clients' solicitors and to comply therewith it will be necessary for me to carry out a survey of the premises. For this purpose I should be pleased if you would confirm that the only suitable times would be prior to the commencement of the performance before lunch upon any day. After this survey I shall then be in a position to deal with the points outlined in your letter".
It appears that arrangements were later made for Mr Rusha to make a survey.
Then I can go, I think, to page 45 of the correspondence, which is from Mr Coles to Mr Rusha:
"Referring to our conversation over the 'phone this morning in regard to the repairs to the roofs of the auditorium, I feel it incumbent upon me to write you emphasising the importance of this matter as the newly decorated interior of the theatre may be seriously damaged unless the roofs are seen to promptly. Further it is very desirable that such works should be executed during the fine weather. I confirm that you informed me you are making your inspection tomorrow and were dealing not only with the roofs but also with the dilapidations but that the latter should not hold up the works to the roofs and further that you would communicate with me within the next few days".
Then there was a complaint of delay from Mr Bernstein, whom I take to be the plaintiffs' managing director, dated the 30th June, 1955. Then on page 48 of the correspondence there comes an important letter of the 7th July, 1955, from Mr Rusha to Mr Coles, which was in fact I think passed to Mr Greenwood, who was an assistant to Mr Coles and seems to have been in charge of this matter under him. The letter of the 7th July, 1955, says:
"It has now been possible to inspect the premises with special regard to the roofs to the auditorium. I am of the opinion that stripping and re-using the slates is neither economical nor desirable. Neither am I of the opinion that complete resisting is justified. Having personally examined this roof and obtained a typical sample slate, I am not prepared to recommend your proposals to my client. Subject to your client's approval, I recommend that a reputable firm of builders should be employed to overhaul both the roofs, replacing broken and cracked slates and refixing where slipped".
There was some discussion as to the phrase "subject to your client's approval" and the original of the letter was produced from which it appeared that Mr Rusha, before he sent it out, altered the typewritten "your" to "my" in manuscript, so it said "subject to my client's approval". Thus Mr Rusha rejected out of hand the necessity for stripping the slated roof in accordance with the correspondence at page 30 and said ho would recommend, subject to the defendants' approval, a much less extensive operation, not stated in any detail. One may say, I think, that probably the main cause of the trouble between these parties was that they took diametrically opposed views as to the seriousness of the dilapidations to the roof and as to the nature and extent of the measures necessary to put them right.
Then on the 11th July, 1955, (page 53) Mr Coles wrote to Mr Rusha:
"With further reference to your letter of the 7th instant, I should like to know when you receive your clients' approval to the work you propose to carry out and to have a sight of your specification".
That request for a sight of the specification was never in fact acceded to during the whole history of this matter. Then on the 12th July, 1955 (page 55), Mr Rusha wrote to Mr Tidey, who was a builder in the neighbourhood, and that letter says:
"Dear Mr Tidey. Re Academy Cinema, Leytonstone. I have been instructed to obtain an estimate for the repair of the auditorium roof at the above and I would ask you, therefore, if you would visit the premises immediately and inspect the slates and the asbestos portions of the roof and provide me with an estimate for making the whole properly watertight. This matter is of some urgency and I would, therefore, ask for your very early attention. Incidentally access may be easily obtained by means of a short ladder on to the flat roof adjacent".
On the 19th July, 1955, (page 58) the defendants wrote to Mr Bernstein, the plaintiffs' managing director, as I take him to be:
"Further to our correspondence herein, we have now heard from our architect who has advised us, as a result of which we are prepared, on the conditions set out in this letter, for you to carry out the following work".
Then the work was detailed and there was this proviso:
"Provided that (a) the work as required by the enclosed schedule of dilapidations is completed before or at the same time as the above mentioned work".
I think the sole materiality of the schedule of dilapidations enclosed in that letter is that at page 65 of the correspondence one finds in this specification these items relating to the front elevation:
"84. Hack off all hollow rendering, provide key and re-render in mortar to similar strength as exists. 85. Cut out all other crazing or cracks and properly make good".
Those items, 84 and 85, are the items referred to in the Order made by the learned Judge.
Then on the 28th July, 1955 (page 66) there is a letter from Mr Coles to Mr Rusha:
"Referring to my letter to you of the 11th instant, I do not think you can appreciate how serious the leaky roof is. I have received the following report from the cinema manager: When we get rain as we had it yesterday it finds its way through a spot in the ceiling and drips quite heavily. So much that we have to put nine seats out of commission because of splash and soaking. We are unable to do anything here to seal up the ceiling".
I think that is the only material part of the letter, except that it concludes thus:
"Please do deal with this matter as requested in my letter to you above referred to".
Then on page 67 on the 29th July Mr Rusha wrote to Mr Coles:
"Acknowledging receipt of your letter of the 28th instant, I have to advise you that I have been instructed to obtain an estimate for approval by my clients to make the roof watertight and this I have proceeded to do. I am proceeding with the matter in all haste recognising the urgency of the situation".
Then the next is on the 19th August, 1955 (page 68) from A.E. Tidey Ltd. to Mr Rusha:
"Dear Sir, Replying to your esteemed enquiry, we have pleasure in quoting you our price for the work you require".
Then:
"Academy Cinema, Leytonstone. Slated portion of roof covering auditorium. To overhaul and renew cracked and broken slates (Approximately 350). Refix all slipped slates and leave roof watertight. For the sum of £130.10s.0d."
Then:
"Note. To inspect asbestos part of roof and report on findings".
I should mention that so far as 1 know, nothing further was done on the defendants' side in the way of getting a quotation for the asbestos part of the roof. I do not think there is any further reference to it in the correspondence, but 1 may be wrong. Mr Tidey's estimate plainly suggested work of a much less extensive character than the estimates obtained by the plaintiffs.
Then on page 69 of the correspondence on the 5th September, 1955, Mr Bernstein takes a hand in the matter. He is writing to the defendants;
"Some considerable time ago Mr George Coles, our architect acting on our behalf, informed you that the roof of the above theatre required immediate repairs. Mr Coles obtained two estimates from two responsible people and submitted these to you. Your architect, Mr Rusha, acting on your behalf, dealt with the matter after some delay, and on the 29th July wrote saying he was obtaining estimates for your approval and was proceeding with the matter in all haste recognising the urgency of the situation. Mr Coles or ourselves have not heard since that date. To protect the redecoration and refurnishing of the auditorium which has recently been carried out at great expense, we do not think we can allow the work to be delayed any longer. We cannot rely any more upon this English summer. Therefore, we have to advise you that unless your architect submits to Mr Coles within seven days details of the work you propose doing, stating completion date, and Mr Coles is satisfied with your proposals, we will give instructions to have the work carried out ourselves and charge you with the cost".
I think there is some importance in the complaint that neither Mr Bernstein nor Mr Coles had heard anything at all on the matter since the 29th July.
Then on the next page 70 there is a letter from the defendants to Mr Bernstein, and they say this:
"We acknowledge your letter of the 5th. Mr Rusha, our architect, has been dealing with this matter and we have been in touch with his office to-day and we are informed that it is only due to the holiday period that he has not yet contacted Mr Coles. Mr Rusha will be returning from his holiday on the 8th and will immediately contact Mr Coles thereafter. With regard to the second paragraph of your letter, we do not like your peremptory tone".
Then there is some comment on that, and this is the important part of the letter:
"We will not agree to your carrying out any work at our expense".
Then on the 13th September, 1955, on page 72, Mr Bernstein wrote to the defendants' secretary:
"Further to our letter of September 5th, we have instructed our architect, Mr George Coles, to place an order with Messrs Darby & Son (Leyton) Ltd. for the repairs to the roof".
On that intimation Mr Rusha by a letter in fact dated the same day — one cannot tell whether Mr Bernstein's letter was received before Mr Rusha wrote his -- writes to Mr Tidey or his Company saying:
"I am instructed by my client to accept your estimate at the sum of £130.10s.0d. dated the 19th August, 1955, and would ask you to place the work in hand forthwith".
Then on page 74 there is another letter dated the 14th September, 1955, from Mr Rusha to Mr Coles;
"With reference to recent discussions concerning the repair of the auditorium roof at the above premises, I have to say that my contractors advise me that they are commencing work during the early part of next week when it is my intention to visit and superintend the work in progress".
Then on page 75 there is a letter of the 14th September from the defendants to Mr Bernstein, the material part of which is this:
"As far as the second letter is concerned, we most strongly object, as we have previously informed you, to your giving any orders in connection with work to the roof. We would inform you that we have to-day heard from our architect that he has already informed Mr Coles that the work to the roof will be commenced in the early part of the coming week. We must therefore inform you that no work is to be carried out to the roof on your instructions. If, in spite of this, you still have work carried out without our consent, we shall hold you responsible".
Then on page 76 Mr Bernstein writes to the defendants:
"Further to our letter of the 14th September, we are advised that items 45, 49"
-- those are not material —
"84 and 85 are your responsibility. The rest of the work we will have done".
That relates apparently to the front elevation. Then there is this, bearing on the roof question:
"We are also advised that the damaged ceiling panels referred to in items 43 and 49 are in their present condition due to lack of repair to the roof. We shall be glad, therefore, if you will make arrangements for the work to the items mentioned above to be done through your architect. If you prefer that we should place orders with builders (now on the site) on your behalf, we will do so".
Then on page 77 there is a letter from Mr Bernstein to the defendants:
"We are in receipt of your letter of 14th September regarding the schedule of dilapidations and repairs to the roof".
Then I think I can pass to the last paragraph but one:
"Your architect has not submitted for Mr Coles' approval specification of work you propose doing, any specific date for completion, or indicated how the work would be done to allow the cinema to continue to remain open during its normal hours to the public. We see no reason for cancelling the order we have placed".
That is the 19th September, 1955, and on the same day the defendants wrote a letter to Mr Bernstein, in the course of which they said this:
"As far as your letter of 19th is concerned surely the points mentioned in your letter should be dealt with by Mr Coles and Mr Rusha. That, we assume, is the reason we employ architects, so that points such as those raised in your letter cat be sorted out between them".
Then this is of some importance:
"We are not interested in any orders you may have given and we must again warn you that any repairs carried out to the roof by you are carried out at your peril and we will not be responsible for same or for any costs incurred by you".
That is page 78. Then on the 21st September, 1955 (page 79) Mr Coles wrote to Mr Rusha, and in the course of that letter he said:
"My instructions are quite clear to the effect that I must be supplied with a detailed specification of the work you propose executing and my approval obtained thereto before same is put in hand; I must also have a note of date of commencement of the work and date of completion and sufficient information to satisfy me that (1) the roofs will be satisfactory when repaired and (2) that the times of working will be satisfactory to the management of the cinema. I think it wise again to draw your attention to the experts' reports on the condition of the existing slates sent you on the 7th June last".
I should say before I read the next letter that it seems that on the 19th September Mr Tidey in fact sent his men to the cinema to do the work he proposed on the slated roof. On the instructions of Mr Bernstein he was apparently ordered off and so departed leaving his work uncompleted, although he had apparently managed to do approximately one fourth of the job as proposed and recommended by him.
Then going back to page 80, that is the 26th September, 1955, from Mr Rusha to Mr Coles:
"Acknowledging receipt of your letter of the 21st instant, I note the contents which are not entirely in accordance with information in my possession but, however, I think you will agree that the primary consideration is that the roof in question should be made watertight at the earliest possible date and this has been my objective throughout".
Then there is this sensible suggestion:
"In order to achieve amicable working quite clearly it is necessary for us to get together on the matter as was suggested in earlier correspondence by the solicitors and with this in mind, may I suggest that you ring me with the intention of making an appointment mutually convenient when detailed arrangements can be made regarding the extent of the work to be carried out, facilities and working times etc."
Then on page 81 Mr Coles, adhering to his previous position, writes this to Mr Rusha:
"In reply to your letter of the 26th instant, I have to inform you that my instructions are that I am to receive from you your proposals for repairing the roof in writing for my consideration and I shall, therefore, be obliged if you will let me have same".
Then on page 82 Mr Rusha writes to Mr Coles on the 5th October, 1955. There is an acknowledgement of Mr Coles' letter of the 28th September, and Mr Rusha goes on to say that he is "advised that the terms of the lease do not require me to comply with this letter". Then the second paragraph says:
"For your information, it is my intention to instruct my contractor to repair the said roof to my satisfaction sufficient to make it watertight. It is clearly the opportune time to carry out this work at present, while the cinema is closed and unless I receive your confirmation within three days that all reasonable access will be given during the closure of the cinema, my instructions will be withdrawn and no further action taken in the matter".
Then there is a letter from Mr Rusha to Mr Coles on the 11th October, 1955:
"I am advised by my contractor",
that is Mr Tidey,
"that he intends to clear his material from the premises by Friday next, the 14th instant. Since I have on behalf of the freeholders made every effort and given all due notice regarding the carrying out of this work and reasonable access for its execution has not been provided, I must advise you that my client will accept no liability for any work carried out to the roof by your contractor. Should yon wish my contractor to do the work after the above date the matter will be subject to the approval of my clients and should this be received, your clients will be held liable for the extra cost incurred in returning to the premises".
Then Mr Coles at page 84 replies to that on the 17th October, 1955. He acknowledges the letter and goes on:
"I would like to record, however, that I have never received a written specification of the work you propose to do at the above theatre".
Then in the correspondence at page 86 there is a complaint from the defendants to Mr Bernstein on the 85th October, 1955:
"We are in receipt of your letter of the 21st. However, you seem to be right out of touch and we suggest you communicate with your architect, Mr Coles, who can inform you that he has prevented our workmen from carrying out the work".
That is the complaint, as I understand it, of the episode of the 19th September when Mr Tidey's men were not allowed to do the work. Than on the following page there is a letter from Mr Bernstein to the defendants which refers again to Items 84 and 85, and on page 91 there is a letter to Mr Bernstein from the defendants, and I think I need only refer to the second paragraph:
"We also note with interest that you have not replied to the point raised in our letter to you of 25th October concerning the fact that our workmen were prevented from carrying cut certain work and we shall be obliged if you will let us have your explanation of this by return".
I do not think there is anything in the few remaining letters which I need read. The parties were more and more at loggerheads on this matter of the repairs and found it impossible to arrive at any agreement, and in the result, as I understand it, the plaintiffs did the work to the two roofs themselves and then brought the present action.
So much for the correspondence. As appears from what I have already said, the learned Judge construed the landlords' repairing covenant in the same way as I do, that is to say, as extending to "structural repairs of a substantial nature". As to the meaning of the expression "structural repairs" and the words "substantial" and "structure", the learned Judge at pages 2 and 5 of the transcript of his Judgment made these observations which I am content to adopt. He said beginning at page 2 of the transcript:
"It appears, rather surprisingly, that the expression 'structural repairs' has never been judicially defined, a fact to which attention is drawn in the 21st"
— I think that should be "25th" —
"edition of Woodfall's Law of Landlord and Tenant (1954) at page 770, and Counsel in the present case have accepted that statement as correct. The writer of the textbook submits on the same page that 'structural repairs' are those which involve interference with, or alteration to, the framework of the building, and I would myself say that 'structural repairs' means repairs of, or to, a structure. It is sometimes said that repairs must always be either structural or decorative, and if that is the simple criterion we are in this case certainly not dealing with decorative repairs.
"Next, what is meant by the words 'of a substantial nature'? In a South Australian case, the case of Terry's Motors v. Rinder, reported in 1945, South Australian State Reports, page 107, the word 'substantial' is pilloried as a word devoid of any fixed meaning and as being an unsatisfactory medium for conveying the idea of some ascertainable proportion of a whole. In the case of Palser v. Grinling, reported in 1948 Appeal Cases, page 291, a question arose as to what was a 'substantial portion' of a rent, and the decision is summarised (not perhaps very helpfully) in the headnote, saying that 'substantial' does not mean 'not unsubstantial, but is equivalent to 'considerable', and that the judge of fact must decide the matter according to circumstances in each case. See also the case of Thornaloe v. Board of Trade, reported in 1950, Vol. 2 All England Reports, page 245.
"Again, what is a 'structure'? And what ought to be regarded as part of a structure? We are dealing here with (1) the roof, and (2) one of the main walls of a cinema, and surely those are parts of the structure of the building".
As to the specific items of disrepair upon which the dispute turns, I may deal first with the front elevation of the premises. The competing views are, on the one hand, that you have here a wall, which no doubt is part of the structure, coated with a cement rendering which can be regarded for this purpose as equivalent to paint. The cement rendering is merely, one might say, decorative, perhaps to some extent protective, but is no more part of the structure than a coat of paint would be. On the other hand, it is said that the front elevation of the cinema consists not of a wall with the incidental application of cement rendering, but it consists of a 9 in. wall rendered in cement. The bricks and the cement should be taken together and they together constitute the front elevation. In my view the latter way of regarding this cement rendering and the wall behind it is correct. On the evidence as a whole the proper conclusion appears to me to be that the cement rendering (which appears to have been from 3/8 to 7/8 in. in thickness) set up a chemical reaction in the bricks of the 9 in. wall, and that this chemical reaction, coupled with the effect of water seeping down between the rendering and the wall and the effects of frost, caused the bricks to deteriorate and the rendering to come away from the wall, taking with it a considerable proportion of the outer ends and sides of the bricks. Moreover, the rendering, where it had come loose from the wall, was liable to fall and was thus a potential source of danger. The operations necessary to make good the frontage to the premises would, therefore, consist of removing the rendering, making good the defective brickwork, and replacing the rendering. These operations appear to me, as they did to the learned Judge, to amount to structural repairs, and, moreover, in view of their extent, to amount to structural repairs of a substantial nature, and, therefore, these were repairs which fell to be included in the landlords' repairing covenant.
I need not take time by going into the evidence, but my conclusions are amply supported, at all events, by the evidence of Mr Green, which the learned Judge must be taken as having accepted, and I see no reason to differ from the learned Judge on that item.
Next, as to the roofs, it appears to me that even the work recommended by Mr Tidey, which, according to his estimate, involved the use of some 350 new slates but which in fact would have called for the provision or refixlng of, I think, nearer 500 slates in all, if one allows for slipped slates and lost ones, would amount to a structural repair of a substantial nature. I do not think that a matter of 550 to 500 slates out of a total of 12,000 slates on a roof could be regarded as a mere trifle. The question, when one is dealing with such things as slates, is necessarily to some extent one of degree. It was put in the course of the argument that if a gale blew off two slates, for example, the work of replacing them could hardly be said to be a structural repair of a substantial nature. But obviously different considerations must apply if there was a hurricane stripping the house of all its slates, and I would add that if somebody "bought blind" a house represented to be "structurally complete" and he went there and found the rafters with no slates on them, he could, I apprehend, complain with justification that his vendor had been guilty of misrepresentation. There are, of course, two ways of putting this. Mr Heathcote-Willlams, while admitting that a roof is a part of the structure and, accordingly, that repairs to the roof would be in the nature of repairs to the structure, says that in this case there is not enough substance in the structural aspect of the repairs. I think that fairly puts his position, and his reason for so submitting is that although no doubt slates would have to be replaced and renewed, there would be no interference with the rafters or roof beams of the cinema? it would merely be a matter of replacing the protective skin or layer in the form of slates which formed part of the roof but which could be removed and replaced without interfering with the structure of the roof.
Paying the best attention I can to the arguments and the evidence, I see no sufficient reason here for differing from the view taken by the learned Judge that the roof repairs also fell within the landlords' repairing covenant.
Then there was a point of a different nature taken in the course of the argument that it would be inequitable to make the Order sought. That contention was abandoned by Mr Vinelott, with the concurrence of Mr Heathcote-Willlams, and I need not say anything further about it.
Than there was the interesting point to which I have already referred to the effect that these dilapidations did not occur overnight, but occurred, as it were, slate by slate, as slates got loose or fell off over the years, and inch by inch as the rain gradually seeped down the cement rendering or chemical reaction began to do its work. On this basis it is said that the alleged breaches of the landlords' repairing covenant are no more than an accumulation of individual breaches of the lessees' repairing covenant, and, consequently, that the plaintiffs here cannot recover. It is said that in view of their liability under their covenant for the individual wants of repair making up the totality of disrepair, they must be liable for the totality of disrepair made up of those individual items, and that can be expressed as a set off or cross claim for an amount sufficing to wipe out the claim under the landlords' covenant. It appears to me that this contention fails for a number of reasons. First, it is clear, in view of the very short time which elapsed between the assignment to the plaintiffs and the service of the schedule of dilapidations, that no appreciable part of the disrepair could have been attributable to breaches of the lessees' covenant to repair committed by the plaintiffs themselves. It seems to me that this in itself is sufficient to dispose of the argument. Am assignee of a term is not liable for particular breaches of tenant's repairing covenants committed by his predecessors.
He is, of course, liable for the disrepair of the premises as they stand when he takes over, so far as their then state of disrepair falls within the scope of the tenant's repairing covenants, but particular breaches committed before the assignment to him, as distinct from the state of the premises when he takes over, are matters, generally speaking, with which he is not concerned. Over and above that, it is to be observed that this part of the defendants' case is pleaded so as to apply only to the acts of the plaintiffs themselves and not of their predecessors in title, and it appears that when it was sought to amend the defence by bringing in this point, the inclusion of a reference to the predecessors in title of the plaintiffs was expressly disallowed, the proposed amendment being objected to by the plaintiffs.
Finally, it seems to me, if this point was otherwise sound, it could only operate by way of counterclaim; each side would have their claim to damages for breach of covenant, and if one of them wanted to pursue his claim after a claim had been made against him by the opposite party, I should have thought his proper course would have been to do so by an appropriate counterclaim in the action, and, as I understand it, there is no question of any such counterclaim here.
Those, I think, are all the points with which it is necessary to deal, except one. It does remain to consider with respect to the repairs to the main roof of the cinema, the defendants' contention to the effect that the defendants were, and had at all material times been, ready and willing to carry out the requisite repairs in accordance with the landlords' covenant in Clause 5(2) of the lease, but were prevented from doing so by the plaintiffs.
On this aspect of the case we were invited by both parties to assume that the repairs to the main roof, which the defendants engaged their builder, Mr Tidey, to carry out, would, if carried out, have constituted a sufficient performance by the defendants of their obligations under Clause 3(2) of the lease so far as this roof was concerned, and to decide whether on that assumption the plaintiffs' conduct was such as to destroy their claim to damages under this head. This question turns almost entirely on the correspondence, to which I have already referred. Mr Rusha, the defendants' architect, was cross-examined at considerable length on the correspondence, and he made it quite clear that he gave the plaintiffs' architect, Mr Coles, no particulars at all of the work the defendants intended to do on the main roof, apart from the last paragraph of his letter of the 7th July, 1955 (Correspondence, page 48):
"Subject to my client's approval, I recommend that a reputable firm of builders should be employed to overhaul both the roofs, replacing broken and cracked slates and refixing where slipped".
That statement clearly did not commit Mr Rusha or the defendants to anything. Thereafter Mr Rusha, acting on instructions, repeatedly either refused, or simply did not answer, Mr Coles' requests for information as to the work to be carried out, and the only information Mr Coles ever got from Mr Rusha as to the work proposed seems to have been that the roof was to be made "watertight". (See Evidence, Day 3, page 11).
As to the law to be applied to the facts emerging from the correspondence and from Mr Rusha's evidence:
(1) It is well settled that a landlord's covenant to repair is a covenant to repair on notice.
(2) It is further well settled that under such a covenant the landlord has an implied licence to enter on the premises for the purpose of performing it (See Saner v. Bilton, 7 Ch. D., 815).
(3) Where, as here, the covenant is to "keep" in repair, failure to perform it after notice constitutes a continuing breach in respect of which a fresh cause of action arises from day to day so long as the requisite repairs remain undone.
(4) In the event of the landlord falling to do the requisite repairs within a reasonable time after notice, the tenant is entitled to sue him in damages without first incurring expense by doing the repairs himself (Hewitt v. Rowlands, 151, L.T., 757 (C.A.)).
(5) The covenant is clearly not specifically enforceable, but I apprehend that in the event of the landlord failing to do the repairs in a reasonable time, the tenant can, at his option, do the requisite repairs himself and claim the proper cost of so doing as damages flowing from the breach.
(6) If the landlord attempts within a reasonable time to do the work but is prevented from so doing by the tenant refusing him entry on the premises in accordance with the implied licence, the tenant cannot, I apprehend, maintain his action for damages so long as he persists in such refusal, because in such circumstances the landlord is not in breach of his covenant, or at all events has only been put in breach of it by the tenant's own conduct.
(7) The parties are under a duty to each other to act reasonably. It behoves the landlord, who is in breach of his covenant, to be diligent in the remedying of such breach. He is not entitled to keep the tenant waiting indefinitely and then complain if the tenant ultimately decides to do the work himself. On the other hand, he must be reasonable in the exercise of his licence to enter and (as I think) give the tenant sufficient notice of his intention to enter and information as to the nature and extent of the work he proposes to carry out. On his part, the tenant must not unreasonably obstruct the landlord in the exercise of his right of entry for the purpose of doing the work, or take the matter out of the landlord's hands by doing the work himself before the landlord has had a reasonable opportunity of doing so.
In the present case the original "schedule of dilapidations and wants of repair" enclosed in the plaintiffs' letter of the 31st January, 1955, to the defendants (Correspondence, page 1) seems in the first instance to have been wrongly addressed, but ultimately to have reached the defendants' solicitors by the 9th February, 1955. There is no doubt that it constituted a notice of disrepair for the purposes of the landlords' covenant. It was met on the 2nd March, 1955 (Correspondence, page 8) by a letter from the defendants' solicitors denying liability.
At this point it would, I apprehend, have been open to the plaintiffs forthwith to treat the defendants as having repudiated their obligation under the covenant, and, without allowing any further time, either to bring their action for damages immediately without first doing the work themselves, or at their option to proceed at once to do the requisite work and sue the defendants for its proper cost as damages flowing from the breach. Neither of these courses was actually pursued by the plaintiffs, but the fact that they were open to the plaintiffs shows that at this early stage of the correspondence the plaintiffs already had a complete cause of action.
It is to be noted that the letter of 2nd March (Correspondence, page 8) came a matter of three weeks after service of the notice of disrepair. In the circumstances the plaintiffs' letter of 8th March (Correspondence, page 8) in which they said they proposed to go ahead and look to the defendants for the cost of the repair work, was not unreasonable, and if the plaintiffs had in fact "gone ahead" on those terms at that stage of the matter, I do not see how the defendants could have had any justifiable ground for complaint.
The question of liability seems still to have been regarded by the defendants' solicitors as open at the date of their letter of the 27th April, 1955 (Correspondence, page 25), which shows that at all events they did not at that time admit liability.
There was no doubt something of a new departure on the plaintiffs' part when Mr Coles, the plaintiffs' architect, wrote on the 7th June, 1955 (Correspondence, page 80) to Mr Rusha, the defendants' architect, giving the effect of the estimate from the plaintiffs' builder based on the reports of the two roofing contractors and of the alternative estimate for re-roofing in asbestos, as in either alternative the work envisaged was considerably more expensive than what was demanded by the original notice of disrepair. On the assumption on which we are invited to deal with this part of the case, viz. that the work which the defendants ultimately engaged their builder, Mr Tidey, to carry out, would, if in fact carried out, have been a sufficient performance of the covenant, I suppose it must follow that the work specified as necessary in Mr Coles' letter of the 7th June, 1955, should be assumed to have been in fact more than was necessary to comply with the covenant, though no doubt Mr Coles on the information he had was genuinely of opinion that nothing less would do.
Be that as it may, I do not see how the letter of the 7th June could have had the effect of putting an end to the defendants' breach of covenant. They had in fact done nothing at all, and a matter of four months had elapsed since the service of the notice of disrepair.
I need not read again the whole of Mr Rusha's letter of 7th July, 1955 (Correspondence, page 48) in which he rejected the estimates contained in Mr Coles' letter of the 7th June, and concluded: "Subject to my client's approval, I recommend that a reputable firm of builders should be employed to overhaul both the roofs, replacing broken and cracked slates and refixing where slipped". Then Mr Coles (who had in the meantime on the 29th June, 1955 (Correspondence, page 45) written to Mr Rusha pointing out the urgency of the roof repairs owing to the risk of damage to the interior of the premises) wrote to Mr Rusha on the 11th July (Correspondence, page 55) in reply to his of the 7th, a perfectly reasonable letter:
"With further reference to your letter of the 7th instant, I should like to know when you receive your clients' approval to the work you propose to carry out and to have a sight of your specification. I must again mention the possibility of damage to the inside of the auditorium which has recently been redecorated".
No sight of Mr Rusha's specification was ever in fact vouchsafed him.
On the 12th July, 1955 (Correspondence, page 55) Mr Rusha wrote for, and on the 18th August, 1955, received (Correspondence, page 68) Mr Tidey's estimate for making the roof "properly watertight" - the amount quoted being £130.10s.0d.
In the meantime by his letter of 28th July (Correspondence, page 66) Mr Coles had written to Mr Rusha complaining about damage done by the rain owing to the disrepair of the roof, and Mr Rusha had replied (29th July, 1955 - Correspondence, page 67) that he was getting an estimate for approval by his clients "to make the roof watertight" and was "proceeding with all haste".
On the 5th September, 1955 (when, notwithstanding Mr Rusha's protestations of haste, nothing had been heard from him since the 29th July) the plaintiffs' managing director, Mr Bernstein, wrote the letter of that date (Correspondence, page 69) ending with these words:
"Therefore, we have to advise you that unless your architect submits to Mr Coles within seven days details of the work you propose doing, stating completion date, and Mr Coles is satisfied with your proposals, we will give instructions to have the work carried out ourselves and charge you with the cost".
In all the circumstances I cannot regard the position taken up by Mr Bernstein as in any way unreasonable.
I cannot say the same for the defendants' reply of the 6th September (Correspondence, page 70), which appears to me to be most unreasonable. After all the time which had elapsed since the notice of disrepair, nothing was said about any definite arrangements for the doing of the work by the defendants. There was simply a curt and categorical refusal to the plaintiffs' proposal to do it themselves - "we will not agree to your carrying out any work at our expense". Then, having heard nothing further, Mr Bernstein wrote again to the defendants (13th September, 1955, Correspondence, page 72) that the plaintiffs had instructed an architect to place an order with their builders for the repairs to the roof.
Then, at long last, Mr Rusha on the same date (15th September, 1955. Correspondence, page 73) accepted Mr Tidey's estimate. Also on the same date he wrote (Correspondence, page 74) to the plaintiffs that his contractors were commencing work "during the early part of next week". As he had only accepted the tender on the same day (after weeks of delay), this looks very much like a manoeuvre to forestall action by the defendants on their decision to do the work themselves.
Then on the 19th September (Correspondence, page 77) Mr Bernstein wrote to the defendants maintaining his position in these words:
"Your architect has not submitted for Mr Coles' approval specification of work you propose doing, any specific date for completion, or indicated how the work would be done to allow the cinema to continue to remain open during its normal hours to the public. We see no reason for cancelling the order we have placed".
The defendants' reply to that (in theirs of the 19th September, Correspondence, page 78) was this:
"We are not interested in any orders you may have given and we must again warn you that any repairs carried out to the roof by you are carried out at your peril and we will not be responsible for same or for any costs incurred by you".
The parties maintained their respective positions in the ensuing letters and I need not read them all again.
In their letter of the 25th October, 1955 (Correspondence, page 86) the defendants complained that Mr Coles had prevented the plaintiffs' workmen from carrying out the work, and it is not in dispute that Mr Tidey's men had been ordered off the premises on the 19th September, 1955.
The plaintiffs on their part were insisting that before the defendants' workmen were allowed to come on to the premises to do the work proposed by the defendants, the plaintiffs must have full details in writing of the nature and extent of the work proposed. The defendants on their part were professing willingness to do the work they proposed -- not further particularising than by saying it was the work required to make the roof watertight or watertight to Mr Rusha's satisfaction -- and maintaining that the plaintiffs were not entitled to the particulars asked for, or, indeed, any particulars at all.
In the end, the plaintiffs resolved the deadlock by doing themselves the re-roofing in asbestos specified as an alternative to stripping and re-roofing in Mr Coles' letter of 7th June, 1955. That, as I have said, must, in view of the assumption we have been invited to adopt as to the sufficiency of Mr Tidey's proposed work, be taken to have exceeded what was necessary to comply with the covenant. The defendants as reversioners have benefited by the plaintiffs' work, and now claim to be entitled to that benefit for nothing, and, notwithstanding their breach of covenant, to be absolved from liability even for the sum it would have cost to carry out Mr Tidey's proposed work. In all the circumstances of the case I am not prepared so to hold. It appears to me that in view of the defendants' long delay, and their refusal or disregard of Mr Bernstein's and Mr Coles' requests for information as to what they proposed to do, the matter had before the 19th September, 1955, (when Mr Tidey's men were ordered off) reached a stage at which the plaintiffs were entitled to do the necessary work themselves, in the absence of a firm assurance from the defendants that they really intended to do without further delay that which was necessary in order to comply with the covenant, with sufficient details of the work proposed to give Mr Coles a reasonable opportunity of judging whether what was proposed would put the roof in the state of repair which the covenant demanded.
As I have said before, the defendants gave no particulars beyond saying that the roof would be made watertight. They remained in breach of their covenant for months after service of the notice of disrepair. It is not clear that they ever admitted that they were under any obligation to do any work on the roof. They certainly maintained in their defence to the action that they were under no such obligation. They had had ample opportunity of complying with the covenant before Mr Tidey's men ever came on the scene. I do not say that the plaintiffs were wholly reasonable. They may have demanded more in the way of information as to the work proposed than they were strictly entitled to claim. On the other hand, the defendants were at least equally unreasonable. They were guilty of inordinate delay and undue reticence as to their intentions. The fact that they may have been asked for more information than they were obliged to give could not justify them in giving virtually no information at all. It would need a strong case to satisfy me that the plaintiffs had by their conduct deprived themselves of their accrued and accruing claims for damages in respect of an undoubted and persistent breach of a continuing covenant such as this, and I do not consider that the defendants have made out such a case.
Accordingly, in my view the plaintiffs are entitled to damages in respect of the disrepair of the roof, even on the assumption we are asked to make that the work which Mr Tidey was engaged to do would, if done, have satisfied the covenant. But clearly on this assumption the plaintiffs' damages in respect of their expenditure on repairs to the roof must be limited to the reasonable cost of complying with the covenant by Mr Tidey's method. It would seem – though this point has not been argued and I therefore express no concluded opinion upon it - that on the same assumption the defendants might be entitled to claim credit for any amount they had to pay Mr Tidey in respect of the quarter of the work which he had done before being ordered off.
But my brothers, from whom I differ with diffidence, take a different view on this part of the case. The effect of their view appears to be that if the work proposed by Mr Tidey would have been a sufficient compliance with the landlords' repairing covenant had he been allowed to complete it, then the plaintiffs' claim must fall so far as the main (or slated roof) is concerned. The learned Judge expressed no finding one way or the other on the question whether Mr Tidey's proposals, if carried to completion, would or would not have constituted a sufficient compliance with the covenant. It seems that there must, accordingly, be a reference back to the learned Judge for a finding on this question. This and any other points arising as to the form of order to be made will, however, best be discussed after my brethren have delivered their Judgments.
LORD JUSTICE ROMER: With the exception of one point, I am in full agreement with the Judgment which my Lord has delivered. The only question on which I have the misfortune to differ from him is that which was referred to in argument as the "ready and willing" point.
As to this, the plaintiffs contend for various reasons that the defendants cannot succeed in their submission that they were willing to do the requisite repairs to the slate roof but were prevented by the plaintiffs from doing so, and, accordingly, were not, in this respect at least, in breach of their repairing covenant when the plaintiffs issued their writ.
On the hypothesis, however, which we were asked to accept for the purpose of considering this question, that the method which Mr Tidey proposed to adopt in order to do the work was adequate and satisfactory, it does appear to me that the landlords' submission is well founded. The plaintiffs' first objection is that the defendants never gave them an unconditional assurance of their intention to do any work. It is true that in his letter of the 7th July, 1955 (page 48 of correspondence) Mr Rusha told Mr Coles that:
"Subject to my clients' approval, I recommend that a reputable firm of builders should be employed to overhaul both the roofs, replacing broken and cracked slates and refixing where slipped".
That in itself, of course, is no more than a conditional recommendation and would be quite insufficient to support the defendants' case. But on the 13th September, 1955, Mr Rusha wrote to Mr Coles a letter which appears to me to amount to an unqualified intimation of intention to send the contractors on to the premises during the early part of the following week in order to do repair work; an intention which was in fact carried into effect. Therefore, I cannot accept the plaintiffs' contention that the defendants never evinced, or communicated to them, a sufficiently definite intention to do any work to the roof.
The plaintiffs' next objection is that the defendants did not in any case give them details of the work which they proposed to do. At one stage of his argument Mr Megarry went so far as to say that before a landlord can enter upon the demised premises in order to perform his covenants to repair, he must supply the tenant with a detailed specification of the intended work. Mr Megarry cited no authority in support of such a proposition and I am unable to accept it. Alternatively, he submitted that if there is no specification the landlord must at least furnish the tenant with such information as he possesses relating to the work and that in the present case the defendants did not even show Mr Tidey's estimate to the plaintiffs. I should imagine that it is very likely that if Mr Coles had asked Mr Rusha to show him Mr Tidey's estimate, a short and simple document, Mr Rusha would have let him see it. What, however, Mr Coles was wanting to see, as the correspondence shows, was a detailed specification of the work which the defendants were proposing to carry out, and this, as I have already intimated, was more than the plaintiffs were entitled to demand - even if such a specification existed, which in fact it did not. In my judgment Mr Rusha's letters of the 7th July and the 13th September gave the plaintiffs sufficient notification of what they were proposing to do and when they intended to do it; and it is to be observed that the last paragraph of the letter of the 7th July, being almost an echo of the relevant part of the schedule of dilapidations which the plaintiffs had served on the defendants on the 51st January, 1955, cannot really have Reft Mr Coles in any doubt as to the work which Mr Rusha had it in mind to do.
Then further it is said that, even so, the later correspondence shows that Mr Rusha changed his mind and formed a more restricted view as to the work which the defendants should do. This is based on Mr Rusha's references (see, for example, his letter of the 29th July, 1955) to making the roof "watertight". The plaintiffs say that this phrase showed that all that Mr Rusha had in mind was a temporary patching job. If, say the plaintiffs, Mr Rusha had said "properly watertight", the position might have been different, but merely to make the cinema "watertight" for the time being fell far short of the performance by the defendants of their covenant to repair. I do not think that there is much substance in that. The importance of keeping the rain out was uppermost in the minds of all concerned at that time because there had apparently been a heavy storm in July and water had come through into the auditorium of the cinema. We know that in fact Mr Rusha never departed from his intention to have the work in Mr Tidey's estimate carried out, and on the 19th September Mr Tidey sent his men in to do it. But, further than that, I do not think that by using the word "watertight", or in any other way, he led the plaintiffs to suppose that he was departing from the plan which he had propounded to Mr Coles on the 7th July. The truth is, and it seems to emerge quite clearly from the correspondence as a whole, that the doubt which existed in the plaintiffs' mind was not as to the work which the defendants intended to do in relation to the slate roof - namely, the work referred to at page 48 -- but as to the adequacy of that work, the plaintiffs taking the view that it was quite insufficient.
In my judgment, accordingly, the defendants gave the plaintiffs sufficiently clear notice of their intention to do the work and sufficient information as to the nature of that work. What then in those circumstances is the result of their being prevented from doing it and of the plaintiffs repairing the slate roof themselves? On the assumption already referred to (viz. that the work which the defendants intended to do would have been a sufficient compliance with their covenant), the result in my judgment is that on this part of the case the plaintiffs could not succeed. In asking for an order on the defendants to repay them for the work which they themselves did, they are asking in substance for damages for breach by the defendants of their repairing covenant. If, however, the plaintiffs prevented the defendants from performing that covenant and then put it out of the defendants' power to perform it by doing the work themselves, I cannot see how it can be said that the defendants were then or thereafter in breach at all. In the event, therefore, of it being subsequently decided or admitted that the work referred to on page 48 of the correspondence would have been a sufficient performance of the defendants' covenant if it had been carried out, I would hold that the plaintiffs have established no cause of action so far as the slate roof is concerned.
On every other question I entirely agree with what my Lord has said and there is nothing that I wish to add for myself.
LORD JUSTICE ORMEROD: I am in full agreement with the matters which have been dealt with by Lord Justice Jenkins, and do not propose to deal with those matters, except on the last point which has been called the "ready and willing" point.
Assuming that the landlords are right when they say that the work set out in Tidey's estimate was all that was necessary to put the roof in a proper state of repair, the question arises whether the landlords made known to the tenants that they were ready and willing to do this work. The contention of the tenants is that at no time did they have enough information of the proposed work to enable them to form any opinion as to its adequacy. From time to time in the correspondence they ask the landlords for a written specification of the proposed work which the landlords refuse or neglect to give. The case is complicated by the fact that the lease does not give to the landlords any power to enter upon the land to perform their covenant. Mr Megarry, however, referred us to Saner v. Bilton from which it appears that such a right may be implied. But, he argued, that this was a right to be exercised reasonably, and in these circumstances it was reasonable that the landlords should inform the tenants of the work proposed to be done. For the landlords it was argued that they had discharged their obligation if they could show that they had engaged a competent surveyor and builder, and were acting on their advice. The tenants, on the other hand, contended that they were entitled to know exactly what it was the landlords proposed to do. In my judgment each of these submissions goes too far. The tenants are, I think, entitled to know the general nature and purpose of the work to be performed. They have to put up with the inconvenience of having workmen on the premises, and it is reasonable that they should have such information as would enable them to judge whether the proposed repairs would be likely to fulfil their purpose. There is no doubt that the landlords made it known to the tenants that they proposed to do some work. They not only said so in their letters, but they sent a builder to the premises who actually started to do the work, but was sent away by the tenants' manager. It is clear too from the correspondence and from the evidence what work the landlords proposed to do. Whether that work would have been a sufficient compliance with the covenant is a question which will have to be determined by the learned Judge. The question now is whether the tenants were sufficiently informed.
On the 7th July, 1955 (page 48) Mr Rusha, the landlords' architect, wrote as follows: "Subject to my clients' approval, I recommend that a reputable firm of builders should be employed to overhaul both the roofs, replacing broken and cracked slates and refixing where necessary". This was substantially in the terms of the tenants' notice of the 51st January, and would seem to indicate that Mr Rusha was prepared to seek the landlords' approval to carry out the work necessary to put right the state of affairs of which the tenants complained. The landlords, it is true, do not appear to have acted with great dispatch, and in July there was a heavy rainstorm which caused water to leak through the roof into the auditorium of the cinema, and the correspondence shows that pressure was being put upon the landlords to come to a decision on the matter. On the 29th July Mr Rusha wrote to Mr Coles, the tenants' architect, the letter at page 67 of the correspondence which has been read and I do not propose to read it again. It is contended by the tenants that the use of the phrase "make the roof watertight" in this and subsequent letters indicated that the landlords intended to do no more than patch up the obvious leaks in the roof, which would not amount to putting the roof in repair. Reading the correspondence between the parties as a whole, I do not think this contention is justified. The question of the roof being watertight wag a matter of urgency and was no doubt uppermost in the minds of the landlords' architect, but the reasonable inference appears to be that the landlords intended to carry out the work set out in the letter on page 48. That such was in fact their intention is made clear from their correspondence with Mr Tidey, the builder engaged by the landlords, and from the evidence given at the trial both by Mr Tidey and Mr Rusha. It is unfortunate that by September, 1955, the parties and the respective architects representing them appear to have been at loggerheads. The tenants and their architect were demanding a specification of the proposed work, and the landlords were falling for some reason to make any attempt to comply with the demand. Mr Rusha had in his possession an estimate from Mr Tidey, a copy of which he could have sent to the tenants' architect. He did not do so, and it appears from the evidence that in this he was acting on the instructions of his clients. However, on the 26th September Mr Rusha made what appears to have been a sensible suggestion. That is the suggestion contained in the letter on page 80 of the correspondence which has been read, one paragraph of which I think I should read again:
"In order to achieve amicable working quite clearly it is necessary for us to get together on the matter as was suggested in earlier correspondence by the solicitors and with this in mind, may I suggest that you ring me with the intention of making an appointment mutually convenient when detailed arrangements can be made regarding the extent of the work to be carried out, facilities and working times etc."
It seems extremely likely that Mr Rusha would have given particulars of the work he proposed to do if such a meeting had taken place. However, the only reaction to this proposal was a letter from Mr Coles of the 28th September in which he again reiterated that his instructions were that he was to receive the proposals for repairing the roof in writing. On the 5th October Mr Rusha wrote informing Mr Coles of his intention to instruct his contractor to repair the roof, and on the 11th October he write the letter at page 83, which has already been read, saying:
"I must advise you that my client will accept no liability for any work carried out to the roof by your contractor".
The reply of Mr Coles on the 17th October wag;
"I would like to record, however, that I have never received a written specification of the work you propose to do at the above theatre".
In my judgment it appears sufficiently from the correspondence between the parties that the landlords were prepared to do such work in the repair of the roof as would have complied with the tenants' original notice of want of repair. If the tenants were in any doubt about this, such doubt could in my view have been resolved if Mr Coles had complied with Mr Rusha's suggestion for a meeting, a suggestion which in my view was a very sensible and reasonable one. Mr Coles and his clients, however, continued to insist on a written specification, which, as I have already said, they were not entitled to demand. I think the real trouble between the parties was that the tenants, on the one hand, were not prepared to be satisfied by anything less than stripping and recovering the roof, and, on the other hand, the landlords took the view that this was unnecessary, and that the replacement of broken, cracked and slipped tiles was all that needed to be done. In my view the tenants had sufficient notice of work which the landlords proposed to do. If the learned Judge is of opinion that the proposed work would have been a sufficient compliance with the landlords' covenant, it would seem that there is no liability now on the landlords in respect of this item of the tenants' claim. The tenants have themselves stripped the roof and covered it with asbestos, so putting it out of the power of the landlords to comply with the covenant. If, of course, the learned Judge is of a contrary opinion, the landlords will be liable in damages for such sum as it is eventually found would have been necessary to put the roof in proper repair.
Order: That the Judgment of Mr Justice Vaisey is set aside in so far as it was adjudged that the defendants were liable to the plaintiffs for damages in respect of their failure to carry out the repairs to the auditorium roof of the cinema referred to in the particulars of claim given pursuant to paragraph 9 of the statement of claim herein, and it is declared that the defendants are liable for such repairs only if the repairs proposed to be carried out by them, if completed, would not have constituted compliance with the covenant in clause 3(2) of the lease. It is ordered that it be referred to Mr Justice Vaisey for him to determine whether the repairs proposed to be carried out, if completed, would have complied with the covenant. Order of Mr Justice Vaisey as to costs set aside. All costs, including costs of appeal, to be in the discretion of Mr Justice Vaisey. Save as aforesaid, appeal dismissed.
