VOL. VII.] EXCHEQUER COURT REPORTS. 221 IN THE MATTER OF THE PETITION OF RIGHT OF 1901 wIS . Dee. 2. THE GILBERT BLASTING & DREDGING COMPANY (LIMITED).. SUPPLIANTS ; AND HIS MAJESTY THE KING RESPONDENT. Public work—Contract—Breach of—Contractor's duty to press claims— Extra work—Loss of profit»—Damages. • By a clause common to the several contracts of the suppliants with the Crown for the construction of a public work, it was, in' substance, stipulated that if the contractors had any claims which they considered were not included in the progress certificates it would be necessary for them to make and repeat such claims in writing to the engineer within fourteen days after the date of, the certificate in which such claims_are alleged to have been omitted ; and by another clause it was stipulated that the contractors in. presenting claims of this kind should accompany them with satisfactory evidence of their accuracy, and the reasons why in their opinion they should be allowed ; and unless such claims were so made during the progress of the work and within the fourteen days mentioned, and repeated in writing every month until finally adjusted or rejected, it should be clearly understood that the contractors would be shut out and have no claim .againit the Crown in respect thereof. The suppliants did not comply with these provisions. Held, that a petition of right for moneys claimed to be so due to contractors could not be sustained. • 2. By one of the. clauses of the contracts it was provided that the engineer might, in his discretion, require the contractor to do certain work outside of his contract. • Held, that there was no implied contract on the part of the Crown that work outside of the contract which the engineer might, under the authority so vested in him, have required thé contractor to do, should be given to the contractor ; and where this was not done by the engineer, rand such outside work was given to others, the contractor is not entitled to the profits that he would have made on_ the performance of such work. r 5
222 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 3. Where, by a change in the plan of the works, certain works were abandoned and others substituted therefor, and the contractor THE GILBERT was paid the loss of profits in respect of such abandoned works, BLASTING & he is not entitled to profits upon the substituted works. DREDGING ConAV P V. ETITION OF RIGHT for damages for an alleged THE KING. breach of certain contracts for the improvement of Argument of Counsel. certain sections on the Cornwall Canal. The facts of the case are stated in the reasons for judgment. May 4th and June 13th, 1900. E. L. Newcombe, K.C. for the respondent, moved for a non-suit at the conclusion of the suppliants' case : Section 34 of the contract reads : " It is distinctly " declared that no implied contract of any kind what-" soever, by or on behalf of Her Majesty, shall arise or " be implied from anything in this contract contained, " or from any position or situation of the parties at any " time, it being clearly understood and agreed that " the express contracts, covenants and agreements " herein contained and made by Her Majesty, are and " shall be the only contracts, covenants and agreements " upon which any rights against Her are to be founded." I submit that this clearly and insuperably prevents any contract for the performance of the works claimed by the suppliants arising by implication. (He cited Stewart y. The Queen (1)). Besides these considerations of law, upon the facts the suppliants have no right to complain. The works that are claimed by the suppliants were properly of a sort to be done by the contractors to whom they were given by the Government. There are, therefore, no merits in the suppliants' case. A. B. Aylesworth, K.C. for the suppliants, contended that the works in respect of which the suppliants (1) 7 Ex. C. It. 55.
VOL. VII.] EXCHEQUER COURT REPORTS. .223 claimed damages for not being allowed to execute 1901 them. were such as were necessitated by a .change in. TEE the plans by the Government authorised by the con- GILBERT BLASTING & tract, and that the altered works should be given to DREDGING the su la nts. If the works were substituted for COMPANY • PPi ti, works originally called for by the contracts, then we THE KINCh are clearly entitled to do. them. It is submitted that eon* for the evidence shows that.. the works were merely: a 'U~ent- deviation or variation from the original plan for the most part, and that in other particulars the works were rather a substitution. But all claimed by us should clearly have been given to us under the contract. Because the Crown has seen fit to abandon certain works originally called for, that has no effect upon our rights under the contracts. N. A. Belcourt, X.C. followed for the suppliants. The plain intention of the four contracts entered into by the suppliants is that they should get all the work . involved in the undertaking. We further contend that where work was abandoned and new work substituted therefor which we were compelled to do, we still are entitled to the profit on the work that was abandoned. THE JUDGE OF THE EXCHEQUER COURT now (Decem-ber 2nd, 4901), delivered " judgment. The suppliants, by their Petition of Right, claim damages in a very large sum for the alleged breach of contracts entered into between Hèr late Majesty and themselves for the deepening and enlarging of sections five, six, seven and eight of the Cornwall Canal. There . were, in all, four contracts each bearing date of the second day of November, one thousand eight hundred and eighty-eight. By these contracts the suppliants agreed to complete all the - 'dredging and other works connected ..with. the deepening and widening of the IS M
224 EXCHEQUER COURT REPORTS. [VOL. VIL 1901 four sections mentioned, not otherwise provided for' T E by the first day of November, eighteen hundred and GILBERT ninety,and the whole of the work embraced in the BLASTING 06 DREDGING several contracts by the twentieth day of April, COMPANY e i ghteen hundred and ninety-one. Among the works TEE KING. contemplated by the contracts relating to sections five Rea.ons and seven, were the substructures of two road bridges for Judgment. over the canal. For the work embraced in the four contracts Her Majesty covenanted to pay the several prices set out in schedules of prices forming part of such contracts respectively. The contracts were in the main expressed in the same terms, and each contained, among others, the following provisions : " 5. The engineer shall be at liberty at any time, " either before the commencement or during the con-" struction of the works or any portion thereof, to " order any extra work to be done, and to make any " changes which he may deem expedient in the dimen-" sions, character, nature, location, or position of the " works, or any part or parts thereof, or in any other " thing connected with the works, whether or not " such changes increase or diminish the work to be " done, or the cost of doing the same, and the contrac-" tors shall immediately comply with all written " requisitions of the engineer in that behalf, but the " contractors shall not make any change in or addition " to, or omission, or deviation from, the works, and shall " not be entitled to any payment for any change, " addition, deviation, or any extra work, unless such " change, addition, omission, deviation; or extra work, " shall have been first directed in writing by the " engineer, and notified to the contractors in writing, " nor unless the price to be paid for any addition or " extra work shall have been previously fixed by the " engineer in writing, and the decision of the engineer " as to whether any such change or deviation increases
VOL. VII.] EXCHEQUER COURT REPORTS. 225 " or diminishes the cost of the work, and as to the 1901 amount to be paid or deducted, as the case may be, in " respect thereof, shall be final, and the obtaining of BG IsITEI & " his decision in writing as to such amount shall be a DREDGING " condition precedent to the right of the contractors to Coahr A NY " be paid therefor. If any such change or alteration TRE KZ"' " constitutes, in the opinion of the said engineer, an for s " deduction from the works, his decision as to the 'ndig°ns. " amount to be deducted on account thereof shall be " final and binding. " 6. That all the clauses of this contract shall apply " to any changes, additions, deviations, or extra work, " in like manner, and to the same extent as to the " works contracted for, and no changes, additions, " deviations, or extra work shall annul or invalidate " this contract. " 7. That if any change or deviation in, or omission `.` from, the works be made by which. the amount of " work to' be done shall be decreased, no compensation " shall be claimable by the contractors for any loss of " anticipated profits in respect thereof. " 8. That the engineer shall be the sole judge of ".work and material in respect of both quantity and " quality, and his decision on all questions in dispute " with regard to work .or material, or as to the mean-" ing or intention of this contract, and the plans, `` specifications and. drawings shall be final, and no " works or extra or additional works or changes shall--" be deemed to have been executed, nor shall the con-" tractors be entitled to payment for the same, unless " the same shall- have been executed to the satisfaction of the engineer, as evidenced by his certificate in writing, which certificate shall be a condition pre-" cedent to the, , right of the contractors to be paid " therefor.
226 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 " 26. It•Ys intended that every Y allowance to which T " the contractors" [are] " fairly entitled, will be em- GILBERT " braced in the engineer's monthly certificates ; but BLASTING DREDGING " should the contractors at any time have claims of COMPANY " any description which they consider are not included THE KING. " in the progress certificates, it will be necessary for R451 f % o 6011. " them to make and repeat such claims in writing to Judgment. " the engineer within fourteen days after the date " of each and every certificate in which they allege " such claims to have been omitted. 27. The contractors in presenting claims of the " kind referred to in the last clause must accompany " them with satisfactory evidence of their accuracy, " and the reason why they think they should be " allowed. Unless such claims are thus made during " the progress of the work, within fourteen days, as in " the preceding clause, and repeated, in writing, every " month, until finally adjusted Or rejected, it must be' " clearly understood that they shall be for ever shut' " out, and the contractors shall have no claim on Her " Majesty in respect thereof. " 33. It is hereby agreed. that all matters of differ-" ence arising between the parties hereto upon any " matter connected with or arising out of this contract, " the decision whereof is not hereby especially given " to the engineer, shall be referred to the. award and arbitration of the chief engineer for the time " being having control over the works, and the award " of such engineer shall be final and conclusive ; and " it is hereby declared that such award shall be a con-" dition precedent to the right of the contractors to " recover or to be paid any sum or sums on account or "• by reason of such matters in difference. " 34. It is distinctly declared that no implied con-" tract of any kind whatsoever, by or on behalf of Her
VOL. VII.] EXCHEQUER COURT REPORTS. 227 " Majesty, shall arise or be implied from anything in 1901 " this ' contract contained, or from any position or T " situation of the parties at any time, being clearly B?As IHC ". understood and agreed that the express contracts, DREDGING COMPANY " covenants and agreements herein contained and made " by Her Majesty, are and shall be the only contracts, THE SING. " covenants and' agreements upon which any rights suers " against Her are to be founded." • Jnd g m°'" t . During the progress of . the work it was decided to strengthen and reinforce the south bank of the canal, which was adjacent to the Saint Lawrence River. 'AAs part of such work of strengthening that bank, and to hold in position the material by which it was proposed to reinforce it, it was decided to build a stone toe at the foot of the' south side of the bank. By` a letter of the 13th of February, 1890, the suppliants called the attention of the chief engineer to. their facilities for building the stone toe in connection with their existing contract, and offered to do the ' work for a price mentioned in that letter. By a letter 'of the 22nd of the same month they called 'his attention to their " fender for the stone toe on the . south bank of the Cornwall Canal." There does not appear to have been. any acceptance in writing of this offer,. or any written direction to the suppliants to do the work, but between the dates mentioned and June, 1891, when the work 'of constructing this stone toe was discontinued, they' did a part of the work under direction of the chief engineer and were paid for it, and no question arises ' as to that. It appears, however, that in or before the year 1892, Wm. Davis & Sons, the contractors for. section four of the -canal (the adjoining section) built 'at the foot of the south side • of the southern bank of • the canal, for: a distance of about three hundred and fifty feet within' the limits of section five, a stone retaining wall which had' t he same object and answered the same
228 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 purpose as the stone toe that has been mentioned, only THE it was, it seems, more substantially built. Wm. Davis B GILB l i R G & Sons also did the other work of reinforcing the DREDGING south bank of the canal where the wall was con-COMPANY strutted. The work of building the retaining wall THE KING. and strengthening the canal bank at this point in the ~~."o for way in which it was done, formed no part of the work jli °mi" contemplated when the contracts mentioned were entered into. It was extra work. After large sums had been expended in executing in part the work covered by these contracts, and after the time therein limited for their completion had expired, another and a very fundamental change in the work as originally contemplated was made. That part of the old channel of the canal that was embraced within sections six and seven, and within the upper sixteen hundred feet of section five, and the lower thirteen and seventy-six feet of section eight was abandoned, with all the work that had been done thereon, and in place thereof the north channel of the Saint Lawrence River, the channel between the mainland and Sheiks Island opposite thereto, was utilized for the purposes of the canal. This was done by putting a dam across the north channel of the river at the head of Sheiks Island, and, then at this point and below the dam cutting a passage or way from the old canal into the channel ; and also, by putting another dam at the foot of the Island, and then at a point above such dam cutting another passage or way from the channel into the old canal. In this way the north channel of the Saint Lawrence River opposite Sheiks Island was . made a • part of the Cornwall Canal. - The work of making these dams and the ways or entrances from the canal to the, channel was also given to Win. Davis & Sons. The notice givento the suppliants that further work on sections six and seven would be abandoned, is
VOL. VII.] EXCHEQUER COURT REPORTS. 229 dated on the 2 Ith of February, 1893. The notice of 1901 the chief engineer that -the suppliants would not be T R required to do any more work on the upper sixteen BLdB (I T iI,B IN RR T Q ÔG hundred feet of section five, or on the lower thirteen DREDGING CO hundred and seventy-six feet of section eight is dated ANY v. on the 6th •of March, 1893, and there is also.. a letter THE KING. to the same effect, from the secretary of the Depart- ern• ment of Railways and Canals to the suppliants, under 3114:8111. date of the 8th of March of that year. The contract with Wm. Davis & Sons to make the dams mentioned bears date of the 19th' of June, 1893. On . the.20th' of March of the same year the suppliants had, by a letter of that date to the Minister of Railways and, Canals, stated that they'would look to the' Government for reasonable compensation for the delays, disbursements and loss of profits which would necessarily result from the course which his department had decided upon with reference to the sections of the canal in .question. The matter having been'considered, the Minister.offered the suppliants to pay them, in settlement of their claim for loss of anticipated profits on the work so abandoned, a sum equal to fifteen per cent. on the estimated value thereof. The value of the work so abandoned was $195,663.62, a;nd fifteen per cent, thereof would 'amount in even figures to the sum of $29,350. This offer was, on the 12th of March,1894, accepted for the suppli- ants. by Mr. Ferguson, their solicitor, in a letter ia. which ' he stated that the claims, if ' any, ()Nile com- pany in respect of or arising out of the works actually done would of course remain to be .dealt with apart from the settlement. On the •28th of March an order in council was passed authorising the payment. of this sum of $29,350 to :the, suppliants in full of the claim then made for loss of profits. • The receipt `for this amount was given on the 19th of April following-and purported to be in full of alt claims in respect of the
230 EXCHEQUER COURT REPORTS. [VOL. VIL. 1901 abandonment of parts of sections five and eight, and. THE the whole of sections six and seven of the Cornwall GILBERT B LASTING ôL Canal, in accordance with the letter and order in DREDGING council mentioned. On the 24th of April, 1894, by a COM PANY v. letter of that date, the suppliants submitted to the THE KING. Minister of Railways and Canals a claim for extra ite~ ro . w o ,.~ work, damages, etc., in respect of the works executed, J":;"' by them on sections five, six, seven and eight of the Cornwall Canal, and it was thereby pointed out that this claim was separate and distinct from the claim paid to them for loss of anticipated profits on abandoned work. The particu ars of this claim are not in evidence, but I infer that it was to something of the kind that Mr. Ferguson referred in his letter of March 12th, already mentioned. Mr. Aylesworth, when putting in this letter of April 24th, 1894, in answer to a remark made by Mr. Newcombe, admitted that it did not refer to the claim now under consideration. The next matter, in order of time, to which it is necessary'to refer, is the correspondence in November, 1895, between Mr. Rubidge, the Superintending Engineer of the Canal, and Wm. Davis & Sons that led to the work of building the piers and abutments for a bridge over the canal, and within the limits of section five, being given to them. On the 20th of April, 1896, Mr. Rubidge gave the suppliants notice that they would be relieved from any further work on that part of section five west of the lower end of the east rest pier of the new Milleroches Bridge ; that is, as I understand it, of the bridge, for the building of the substructure of which Wm. Davis & Sons had in November preceding been given the contract. The claim for which the Petition of Right in this case is'brought was presented by the suppliants to the Minister of Railways and Canals in. a letter to him, dated the 29th day of June, 1897 ; the matters then
VOL, 'VIL] EXCHEQUER COURT REPORTS. 231 complained of being substantially those now put for-' 1901 ward. The claim made is, that under a fair construe- T tion of their contracts in question, the suppliants were LA ING BLASTING' Ri bound to do the work hereinbefore mentioned that D REDGING CoMv. N. r was given to Wm. Davis & Sons to do, and that there was a corresponding obligation on the part -of . the Tax "KING, Crown to give them the work to do ; that the failure >r of the Crown to do so constituted a breach of contract '4; 1" for which they are entitled to damages, to be measured by the profits that they would have made. had they' been afforded an opportunity' of executing the work. The Crown denies that it was under any obligation to give the suppliants 'any of the work to do that was done by Wm. Davis & Sons ; and a number of special defences arising upon the . several contracts in' question are set up. The payment of 'the sum of $29,350 fo loss of profits on . the abandoned works is also' relied upon as a . defence to the petition.' Now the same considerations are not in all respects applicable to the different branches of the suppliants' claim. Some are applicable to the claim as a whôl`e; but others are not, and it will be convenient in the first place to discuss those considerations or matters' that affect only a particular part of the claim. In regard to the retaining wall 'built by Win. Davis `& Sons at the lower end of section five and the strength- ing of the canal bank there, it will' be .- Observed ' tha this work was not connected in any way with the principal change 'in the ' work that Was made, and which, as we have seen, resulted in the abandonment of a large part of the work as originally contemplated, and for the ' loss of profits on which' the suppliants have been paid. 'The case as to this part of the claim is that the work was not within the contemplation . of the parties to'the 'contract when it was entered. into ; that it was extra work, 'and that the chief engineer or
232 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 engineer did not, as under the fifth section of the THE contract he might have done, require the suppliants GILBE m BLASTING to do the work. It was given to another contractor a DREDGING to do. There is some question as to whether this part COMPANY of the claim is included in the petition as filed. The THE KING}. claim, if any, arose in 1892, and the petition is founded Reasons on acts that were done in 1893 and afterwards. It is lbw a,l°smerns. a very old claim, and does not appear to have been put forward until 1897, and if an amendment of the petition were necessary to include it, it is not at all clear that any such amendment could or ought to be made. For reasons that will appear I do not think the claim to be well founded and there is no occasion to determine the question of amendment. The second or main branch of the claim is for loss of profits on the dams at the head and foot of Sheiks Island and the work incidental thereto, such as the channels or ways that have been mentioned, between the old canal and the north channel of the River Saint Lawrence. This work was done opposite to or within the limits of sections five and eight of the canal for which the suppliants had contracts. I shall assume (without deciding) that the chief engineer or engineer was at liberty under the fifth sections of such contracts to require the suppliants to do this work. It is certain that he did not exercise that power. This part of the claim is also affected by considerations arising from the acceptance of the $29,350 in settlement of loss of profits on the abandoned work. If this work of making the dams and ways between the canal and north channel of the River Saint Lawrence had been given to the suppliants, if they had been required to do this work as ,a change in- the character, nature, location or. position of the works as originally contemplated, no question of loss of profits on the work _ abandoned, in consequence of such change could
VOL. VII.] EXCHEQUER COURT REPORTS. 233 have arisen. There would have been no breach of the 1901 contract, and no consequent claim to damages. There TH was no breach of any contract in the Crown abandon- B GT& LASBE ing the work that was abandoned. It had a right to DaEDGINGI do that. The breach, if any, consisted in giving the CO T" substituted work, the new work incident to the change THE KING. in plan, to another contractor. If that had not been - Rea=w done the suppliants would, it is certain, have had no- judgment " cause of action. It is not necessary to decide whether . what was done really did constitute a breach of the contracts in question and give a cause of action. The Crown accepted that position and paid the damages agreed upon. Such damages if reasonable might, if they had not been settled, have been assessed with reference to loss of profits on the work that was actually done under the change that took place, and not with reference to the profits that might have been made on the execution of the work as originally contemplated.. But it is not possible, it seems to me, that the'suppli- ants can keep' in their pockets the profits on the work that was abandoned and at the same time recover profits,on the work that was substituted therefor. By accepting the profits on the former, they put it out of their power to recover the latter. They are not entitled to both. These considerations 'apply only to such work done by Wm. Davis & Sons as was reason- ably incident to and connected with the change in the work that has been 'mentioned. They do not apply to the building of the piers and abutments for • the Milleroches Bridge. ' As to that the facts, some of which have not been allùded to, are these : The work contemplated by the contract for section five, ' as has • been stated, embraced' the substructure for a road bridge over the canal within that section. The .substructure, the abutments, piers and foundations of . another bridge, were included in the contract relating
234 EXCHEQUER COURT REPORTS. tVOL. VIL 1901 to section seven. A large part of the work on the THE foundations of the bridge within section five was done GILBERT BLASTING & when work on that part of that section was abandoned. DREDGING For the work so done the suppliants were paid, and CIAIVANr on the value of what was not then done the suppli- THE KING. ants received as part of the $29,500 mentioned, a profit x°= " of fifteen per cent. The work on the road bridge con- judgment. templated within the limits of section seven formed part of the work of that section, the estimate for which, at the suppliants' prices, amounted to $141,280. Other work on this section not contemplated in this contract brought the estimate up to $156,927.80. The value of the work done on the section at the date when work thereon was abandoned was $86,947.87. Whether this included any work on the foundations of this bridge is perhaps not clear. But it was either included therein or in the work on that section then remaining to be done, the value of which was $69,979.93. On the latter sum the suppliants were paid a profit of fifteen per cent. as part of the $29,350 mentioned. That is with respect to the work that the suppliants contracted to do in connection with these two bridges, they were paid for all the work that was done according tc. the prices agreed upon ; and they were also in 1894 paid in respect of the work not done a profit of fifteen per cent. on the value thereof. They now claim that they ought, in addition, to have a profit on the work done by Wm. Davis & Sons on the bridge that was subsequently in 1895 or 1896 constructed across the canal, on the ground that the site of the bridge is within the limits of section five of the canal. The two bridges embraced in the contracts were settled for. The claim is for profits on work on a third or extra bridge that was not done by them. That does seem somewhat unreasonable. But the question is not
VOL, VII.] EXCHEQUER . COURT REPORTS. 235 whether it is reasonable or unreasonable, but whether 1901 the suppliants are entitled to what they claim. E By reference to the third paragraphs of these con- ~.iS t NRT BLABT IN(7} ôL tracts it will be seen that the works to' be . executed ,DREDoIN4 are those mentioned and " not otherwise provided for." ConIÛeNY: The works in respect of which the present claim is Tx' Kn . made were " otherwise provided for," and would 'Neae o= • fo apparently fall within that exception, unless it were ;rna.reas• limited to works not otherwise provided for at the date of the contracts. It seems to me that it is . fairly arguable that these words have reference to works otherwise at any time.provided for. Their presence in these contracts would of themselves be sufficient to distinguish this case from cases in Canada in which it has been held that where a contractor is by a contract with the Crown required to do anything, there is, a corresponding obligation on the Crown to give him that thing to do ; and one . would be free to follow the English cases which have been decided in a different way. But I do not rest my judgment on that view of the case. The fifth and sixth paragraphs of these contracts should be read together, and in construing them the' thirty-fourth paragraph should be kept in mind. The latter paragraph declares ,that no implied contract of any kind whatsoever, by or on behalf of Her Majesty, shall arise or be implied from anything in the contract contained or. from any position or situation of the parties at the time. By paragraph five the engineer is at liberty at any. time to. order any extra work to be done by the contractors ; and ,to make any changes which he may deem expedient in the dimensions, character, nature, location or position of the works, or any parts thereof, or in any other thing connected with the works ; and the contractors are bound to comply with any written requisition of the engineer in that behalf.
236 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 But they are not to make any change in, or addition T to, or omission or deviation from, the works, unless GILBERT they are first so directed in writing by the engineer ; BLASTING DREDGING and without such direction in writing they are not COMPANY v. entitled to any payment for any change, addition, THE KING. deviation, or extra work. When in paragraph six it is. Rein. provided that all the clauses of the contract shall apply a,.agn.ena to any changes, additions, deviations, or extra work in the like manner and to the same extent as to the works contracted for, and that no changes, additions, deviations or extra work shall annul or invalidate the contract, the meaning no doubt is, that such clauses shall apply to changes, additions, deviations and extra work directed in. writing by the engineer as provided in the preceding paragraph, and that these shall not annul or invalidate the contract. Now it seems certain that the contractors were not under any obligation to do any extra work or any work involved in any change without the written requisition or direction of the engineer, and without such written requisition or direction they were not entitled to any payment therefor. No such requisition or direction was made or given ; and the contractors being under no obligation no question of a correlative obligation on the part of the Crown arises. To hold the Crown liable for not giving the work in question to the suppliants one would have to imply a contract on behalf of Her Majesty that whenever there was extra work to do, or whenever there was by reason of some change, addition or deviation, other work to do, the engineer would give such extra or Other work to the contractors. But in view of the thirty-fourth paragraph no such contract can be implied. By the twenty-sixth and twenty-seventh paragraphs of the contracts the contractors agreed that they should have no el aim on Her Majesty for anything not included
VOL. VII.' EXCHEQUER COURT REPORTa. 237. in the progress estimates, unless the claim was made 1901 and supported by satisfactory evidence, and repeated ria every month. Nothing of the kind was done with B?sT INGT & respect to the present claim. Sometimes one feels DREDQiN(} CoM r &N that there may be some hardship in the Crown invok- ti ing these provisions against a contractor's claim. But THE gn e. perhaps one ought not to have that feeling where the R ; o n contractor during the progress of the work lies back, J u dgment. and does not give any intimation that he thinks himself entitled in any way to that for which afterwards he puts forward a claim. At all events it is for the Crown to say when these provisions shall be invoked against' a claim, and when they may be waived. In the present case the CTown relies upon them, and they constitute, I think, a bar to the whole claim. Then, by various provisions of these .contracts, the engineer, that is, the chief engineer and his assistants, acting under his instructions, is made the judge of divers matters, and his certificate is necessary to the payment of any money thereunder ; and by the thirty- third paragraph it is provided that all matters in dif- ference arising between the parties upon any matter connected with or arising out of such contracts, the decision whereof was not thereby specially given to the -engineer, should be referred to 'the award. and arbitration of the chief engineer, whose award should be final, and that his award should be a condition precedent to the right of the contractors to receive or be paid any sum or sums on account or by reason of such matters in difference. In view of these provisions also it is difficult to see on what ground the petition in this case can be sustained. The suppliants have no decision Or certificate of the engineer in their favour and no award of the chief engineer; and there has been no waiver by the Crown of any of these matters. Tkese .considerations, as well as those aris- 16
238 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 ing upon the provisions that require any such claim to Tim be made and supported in the manner pointed out in GILBERT BLASTING the twenty-sixth and twenty-seventh paragraphs of ÔG DREDGING the contracts, apply not only to the extra work and to COMPANY the substituted work done by Wm. Davis & Sons, but THE KING. also to any work done by them which may have been embraced within the contracts themselves. For for Judgment. i .s tance, where the suppliants and Wm. Davis & Sons were working over the same ground, or adjacent to each other, there may be some difficulty in determining what work was entrusted to the latter as extra or substituted work ; and what work the former were entitled to under the contracts. The culvert on which Wm. Davis & Sons did some work affords an instance of this kind, and perhaps also the widening, or part of the widening, of the canal on section eight to get a borrow pit for material to be used on the upper dam. But the claim not having been made in the way provided in the contract, and there being no decision, certificate or award of the chief engineer in the suppliants' favour, and no waiver by the Crown of any such defence, the petition, it seems to me, must fail. At the conclusion of the suppliants' case Mr. New-combe, for the Crown, submitted that no case had been made out. That question was then argued and reserved, on the understanding that if it were thought that a case had been made out, an opportunity would be given to the Crown to answer. That, in the view I take of the case, is not necessary. There will be judgment for the respondent, and a declaration that the suppliants are not entitled to any portion of the relief sought by their petition. Judgment accordingly. Solicitors for suppliants : Belcourt 4- Ritchie. Solicitor for'respondent : E. L. Newcombe.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.