VOL. XVIII.] EXCHEQUER COURT REPORTS. 103 IN THE MATTER OF THE PETITION OF RIGHT OF • 1918 NAPOLEON TRUDEL, Mai-27. SUPPLIANT, AND HIS MAJESTY THE KING, RESPONDENT. Contract—Hire—Bhcilding contract — Working days—Delay—Damages—Admission—Error----Costs—Interest. Where dredges or machinery are hired from the Crown by the day, only working days can be charged for. The Crown, by failing to deliver a tug, as required by the terms of the lease, cannot recover the rent therefor, but is not liable for damages to the lessee, more or less remote, by reason of delays in work occasioned thereby. 2. An offer or statement of settlement . based on error is not binding and cannot operate as a judicial admission under the Quebec Civil Code. 3. The Crown cannot be held for delays occasioned by it in the performance of a building contract, where by the terms of the contract it was 'relieved from liability in any such event. The Court, under sec. 48 of the Exchequer Court Act, is bound to decide in accordance with the stipulations of the contract. 4. Where a party does ' not succeed on all the issues of an action, the Court has a discretion to deprive him of the costs. 5. The right of action having arisen in the Province of Quebec, . interest upon the 'amount due under the contract was allowed from the date of the deposit of the petition of right with the Secretary of State. PETITION OF RIGHT to recover a balance due upon a contract and for damages occasioned • in the performance thereof. Tried before the Honourable Mr. Justice Audette, at Quebec, April 29 and May 1, 1918. Pierre D'Auteuil, K.C., and R. Langlais, for -suppliant. E. Belleau, K.C., for respondent. AUDETTE, J. (May 27, 1918) delivered judgment.
104 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 The suppliant by his petition of right, seeks to TR UD$L recover the sum of $17,056.90 for an alleged balance THE KING. due upon contracts, and for damages resulting from Reasons for Judgment. suspension of the works or delays in the execution of the same. The case as presented is composed of two distinct issues. One is in connection with works done at Matane, and the other with respect to works done at Cap a l'Aigle. MATANE CONTRACT. The works, at Matane, consisted of the construction and completion of a breakwater on the east side of the mouth of the River Matane, at Matane, in the County of Rimouski, P.Q. The works were duly executed, under a contract, between the suppliant and the Crown, and finally accepted by the latter. There were also, in connection with this contract, extras to the amount of $8,000, which the Crown has duly recognized and paid. The total amount of the contract was for the admitted sum of $55,021.00 together with the sum of 8,000.00 for the extras, which amounted in all to the sum of $63,021.00 The Crown has so far paid the sup- . pliant in satisfaction of the con- tract, the sum of $39,810 and for the extras 8,000 47,810.00 leaving uncovered or in dispute the sum of $15,211.00
VOL. XVIII.] EXCHEQUER COURT REPORTS.. The suppliant, under his contract, as required by clause 3 thereof, had to provide for all kinds of labour, machinery and other plant, etc. fore hired from the Crown, as he might have done Rea from anyone else, at the rate of $236 per day, the use of the dredge "Progress", 2 scows and a tug, to remove the sand and prepare the foundation for the breakwater to be by him erected. The lease for such plant and machinery, reads as follows : "Montmagny, Que., "Je soussigne, Napoleon Trudel, entrepreneur "pour la construction d'un brise-lames. a Matane, "m'engage per les presentes a payer au, Departe-"ment des Travaux Publics du Canada, la somme "de deux cent trente .six piastres ($236.00) par jour "pour l'usage de la drague "chalands et d'un .remorqueur, "et preparer la fondation du dit brise-lames. "Le temps du loyer de la dite drague & C.,• devra "commencer a compter au moment de son depart du "quai de Rimouski jusqu'a son "quai. "Le Departement devra fournir "nécessaire 'au bon. fonctionnement "de ses 'accessoires durant toute la duree des tra= "vaux. "Signe a Montmagny, ce vingt deuxieme jour de "juin, 1911. "Temoin: Louis v. Gadbois. "Nap. Trudel, Entrepreneur." .. On June 29th, 1911, the dredge and scows, in tow of the tugs "Evelyn" and "Wetherbee," left. mouski, at 7 a.m., and arrived at Matane at 5 p.m. • It being found the tug "Wetherbee" was drawing 105 1 91 TRUD.EL tJ He there- THE KI NG. som ns for 3 d u g ent. le 22 juin, 1912. • ' `Progress', de deux pour enlever le sable retour au meme tout ce qui est de la drague et Signe Ri-
106 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 too much water to enter the River Matane, and TRUvDEL . finding no haven, she returned at once to Rimouski, THE KING. although she had been assigned to serve the dredge. Reasons for Judgment. The dredge remained without any tug to serve her, and her first work, after setting up her spuds and general installation, consisted in casting over. The Crown having failed to supply a tug, as bound to do under the lease, Trudel, the suppliant, hired, at his own cost and expense, first the "Shelby" and then the "Victoria." The dredge was engaged in Trudel's work, at Ma-tane, up to August 25th inclusively, when she finished dredging for the suppliant. She was then for a while engaged on some other government work at Matane, with which the suppliant has nothing to do, and finally was towed up to Rimouski. The controversy with respect to the dredge is as to the number of days she was engaged working, and the rate at which the suppliant should pay, having regard to the fact that the Crown has failed to supply a tug, as called for by the lease. Under the uncontroverted evidence adduced by the suppliant, it appears that when dredges or machinery of any kind are so hired by the day, that only the working days are to be reckoned exclusive of the Sundays. Moreover, this dredge was hired by the suppliant, as I have already said, under the provisions of clause 3 ; but, under clause 35 of the same contract the suppliant is absolutely forbidden to carry on any work whatever on Sundays. Were the , dredge hired by the month, it is apparent that the full rent should be exacted; but it is otherwise under the custom of trade established by the evidence, when the hire is by the day,—in that case only working days should be charged.
VOL. XVIII.] EXCHEQUER COURT REPORTS. We have in June In July 7 And in August To which should be added another day 1 Which must be allowed to tow the dredge back to Rimouski, as provided by the lease, making in all From the 59 days should be deducted the Sundays and Dominion Day (July 1st), when the machinery was not used. There were 8 Sundays within the period, and July 1st, a red-letter day, when no work was done—In all On those 50 days; we have 2 days only in which the Crown supplied the tug,—that is, the day the dredge was taken from Rimouski the return day— Two days at $236 Now it has been established by the evidence at trial that the value of the tug per day represented about $50 in the $236 .a day, the Crown having failed to supply a fug for 48 'days, the lessee, the suppliant, should only pay $236, less $50. $186 for these remaining 48 days .. $ 186 1O7 Days. 1918 2 TRUDEL V. 31 THE KING. 25 Reasons for Judgment. 59 9 50 to Matane, and $ 472.00 48 $1,488 7,44 $8,928 8,928.00 $9,400.00
108 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 It is clearly spread upon the record by the evi- TRU D.EL V . dence that the suppliant had to hire—outside of his THE KING. lease—the necessary tugs to replace the one the Reasons for Judgment- Crown was bound to supply and which it failed to do. The first obligation of a lessor, under Art. 1612 C.C., is to deliver to the lessee the thing leased. The Crown did not deliver the tug, and cannot recover the rent therefor. • The suppliant claims damages in the delay of execution of his contract which would have been occasioned by the want of tugs. These damages are more or less remote and not of a tangible nature, ,and have not been clearly established. The suppliant, in the course of the excavation made by the dredge, was allowed to cast over, to remove sand with shovels drawn by horses, and in addition thereto in the result paid much less than $50 a day for the tug's service—having the advantage, with respect to one of the tugs, to pay only so much per hour when needed, being thereby freed from the obligation to pay for that part of the day when the tide was low and when the tug could not be used,—and these small tugs gave better service at Matane than larger ones, according to witness Murphy. Moreover, the Crown, in the course of the negotiations of settlement, finally abandoned the claim for overtime. If the suppliant actually suffered any of the damages claimed, a very doubtful matter, they are more than amply set off by the full allowance of ,$50 per day for the tug, coupled with the circumstances =above mentioned. It will be noticed that considerable delays have elapsed since the termination of the works in question, and it appears that negotiations of a protract-
VOL. XVIII.] •EXCHEQUER COURT REPORTS. 109 ed nature were kept on until legal proceedings were.Isis instituted. In the course of these negotiations it TRU:EL. appears in some of the letters and statements sub- Tan Kixc. mitted to the respondent by the suppliant, that he âgét-r at one time was willing to settle upon his paying; $11,800. From these offers of settlement, counsel- at-bar for the Crown contends that the suppliant is bound by such offer, which he terms under Art. 1244 C.C. an extra judicial admission: He further contends . that Art. 1245, under which a judicial ad- mission can be revoked through an error of fact, does not apply to an extra judicial admission. There may be some authority for such a contention, but the preponderance of the jurisprudence is, against it. Mr. Mignault, Droit Civil,1 contends that such revo- cation applies to both in case of error.- Indeed, if this admission has been based upon an error of fact, he has made a mistake, an error, and it is the duty of such party to declare he was in error when he made such admission, instead of persisting in a con- tention which he has discovered to be false. In any case, if there was error, there was no admission: Non fatetur qui• errat. It cannot be contended that the Crown can say it has been led into error by such an admission; because if the suppliant omitted to deduct a certain, amount for the tugs the Crown had failed to supply, the Crown was well aware of this fact it had not supplied the tugs. I find that the suppliant is not bound, under the circumstances of the case, by any such statement or offer made in error, against himself, in the course of his endeavour to arrive at a settlement,—a state- p. 126, vol. 6.
110 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 ment or offer which the Crown never clinched by an TRUDEL ro. acceptance. THE KING. iieasonsfor I therefore find, as above mentioned, that Judgment. the suppliant performed works, includ- ing extras, for an amount of $63,021.00 That he has been paid on account thereof by the Crown the sum of 47,810.00 Leaving uncovered and in dispute the sum of $15,211.00 That the suppliant owes the Crown, in re- spect of the lease of the dredge, etc., the sum of 9,400.00 Leaving due him by the Crown the sum of $5,811.00 which he is entitled to recover. Under sec. 48 of the Exchequer Court Act, the Court is denied the power to allow any interest upon this balance, but, following the cases of St. Louis v. The Queen,' and Lainé v. The Queen,2 this being a - case where the right of action has arisen in the Province of Quebec, interest will be allowed upon the sum of $5,811, from the date the petition of right was Left with the Secretary of State, as provided by sec. 4 of the Petition of Right Act, namely, from May 8th, 1916, to the date hereof. CAP-A-L 'AIGLE CONTRACT. On December 26th, 1916, the suppliant entered into a contract with the Crown for the construction of an extension to the wharf at Cap-a-l'Aigle, as provided by the contract filed herein as Exhibit No. 10. 1 25 Can S.C.R. 649 at 665. 2 5 Can. Ex. 108. .......~~.- ~
VOL. XVIII.] EXCHEQUER COURT REPORTS. 111 The question arising under this contract, freed 1918 .and segregated from the numerous branches of TRUUDEL money claims made by way of damages alleged to THE KING. Reasons for have been occasioned by delays, resolves itself, in Judg ment. the result, in the question as to whether or -not the :suppliant can, under his contract, make such a claim for which the Crown would be liable. . In the course of the preliminary work for the exe- cution of, this contract, and after the foundation for the extension of the wharf had been duly staked, a diver was sent to the bottom to ascertain the condi- . tion of the bottom of the river, and having then re- • ported verbally t.o the Government Engineer, the latter took upon himself to suspend the execution of the work,—having, I presume (because he was not heard as witness), some doubt as to whether the nature of the material at the bottom could be built upon in the manner required by the contract. Indeed, it was not unreasonable to verify the nature of the foundation, but what is claimed as unreasonable and is the source of all the trouble on this issue, is the alleged unreasonableness of the delay of such suspension, and especially so in view ,of the fact it was found the engineer should have :gone on, • and did finally go on, building upon the foundation or bottom .as described by the diver at the time of the suspension. As flowing from that suspension in the execution. of the works, the completion of the enterprise was carried over to the following Year. Now, the question to be determined is whether under the terms of the contract and sec. 48 of the Exchequer Court Act the suppliant is entitled to recover $9,333 claimed in that respect—a claim embodying all manner of dam-agès—some of the most remote class or kind.
112 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 The contract entered into by the suppliant is one TRUDEL V. substantially identical in terms to those commonly TNE x'NG' in use in undertakings of this sort, whereby the con- Reasons for Judgment. tractor is, if the literal terms of the contract be ad- hered to, handed over, bound hand and foot, to the other party of the contract, or to the engineer of the other party, and is absolutely without any recourse or remedy.' It is unnecessary to review the several clauses of the contract into which the suppliant entered with his eyes open. He must be held to them notwithstanding that they might appear oppressive. Modus et conventio vincunt legem. The law to govern as between the parties herein is to be found within the four corners of the contract. The form of agreement and the convention of parties overrule the law.' The suppliant cannot reject the terms of his contract and claim the damages flowing from delays, in view of clause 44, which reads as follows : "The contractor shall not have, nor make any "claim or demand, nor bring any action or suit "or petition against His Majesty for any damages "which he may sustain by reason of any delay or "delays from whatever cause arising in the pro- gress of the work." Clause 15 of the contract also relieves the Crown from any liability in respect of any loss or damage whatsoever which may at any time happen to the "materials, articles and things" required for the contract. This clause is casually mentioned because the contractor has set up a claim in that respect. (See also clauses 11 and 49.) ? Bush v. Whitehaven Trustees, Hudson on Contracts, vol. IL, 124, 4th Ed. 2 Broom's Legal Maxims, 8th Ed. p. 537.
VOL. XVIII.] EXCHEQUER COURT REPORTS.. 113 Under the provisions of sec. 48 of the Exchequer , 1918 Court Act, the Court is bound to decide in accord- TRUDEL ance with the stipulations of a contract in writing THE KING. and it must be found that, under clause 44 of the J a éntr contract, whether the suspension of the works occasioning the delays was rightly or wrongly done, the suppliant is out of court,----as the delays alleged to have given rise to the claim are such as are covered • by this clause 44. In arriving at the . present conclusion, I am also following a similar decision of this court and of the Supreme Court of Canada in the case of Mayes v. The Queen.' There is also a long catena of cases upon this class of contract consecrating the same principle; but it is unnecessary to mention them. It is also unnecessary to either, consider or decide other qûéstions raised at bar. The case 'of Mayes v. The Queen (ubi supra) is a ,direct answer to most .of them. Coming to the question of costs, it is well to .bear in mind that while the suppliant succeeds on one is - • sue, the respondent succeeds on the other. Each issue covered a distinct claim arising out of two separate contracts, and if there is any difference be- ° tween the actual time engaged 'on one issue as compared with the other, I would say, besides being for larger amount, the issue upon which the Crown suc-seeds is the heavier one and upon which pleadings and evidence were more lengthy. • "It seems to me," says • Bowen, L. J., in Badische Anilin and Soda' Fabrik v. - Levinstein2 that, with-. "out laying down any hard and fast line, or, trying "to fetter our discretion at a future period in any 1 2 Can. Ex. 403, 23 Can. S.C.R. 456. . 2 29 Ch. D. 366 at 419.
114 EXCHEQUER COURT REPORTS: [VOL. XVIII. 1"8 _ "other case, we are acting on a sensible and sound T=ag'. "principle, namely, the principle that parties ought THE KING. " not, even if right in the action, to add to the ex-or Judgmnsent s "penses of an action by fighting issues in which they "are in the wrong. It may be very reasonable as "regards their own interest, and may help them in "the conduct of the action, that they should raise "issues in which in the end they are defeated; but "the defendant who does so does it in his own interest, and I think he ought to do it at his own ex-"pense." See also Bennington y. Hill.' Again, in Dicks v. Yates,' Jessel, M.R., said: "I "think that the Court has a discretion to deprive a "defendant of his costs though he succeeds in the "action, and that it has a discretion to make him "pay perhaps the greater part of the costs by giving "against him the costs of issues on which he fails." Under the circumstances of the case there will be no costs upon either of the issues, each party paying. his own costs. Therefore, there will be judgment entitling the suppliant to recover from the respondent the sum of $5,811, with interest thereon from May 8th, 1916, to the date hereof, and without costs. Judgment for suppliant. Solicitor for suppliant : Pierre D'Auteuil. Solicitor for respondent: Jules Gobeil. a 18 R.P.C. 326. 2 18 Ch. D. 76 at 85.
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.