STRONG J.-It would be impossible to give the appellant the relief he asks by this appeal without overruling many previous decisions of this court and disregarding innumerable other authorities. The respondent was a contractor for the construction of a part of the North V' Shore Railway and the appellant and one Leprohon S entered into a sub-contract to perform a portion of the work included in the respondent's contract.
This sub-contract was in writing and it expressly provided that the respondent should upon the certificate of his Engineer " that the work contemplated to be done under this contract has been fully completed by the party of the first part " (the appellant and Leprohon) pay said party of the first part for the performance of the same in full at certain specified rates contained in a schedule immediately following.
And it was further provided by the second clause of the contract that as regards extra work the Engineer should either before the work should be performed such prices as he should consider just and equitable and the parties should abide by such prices provided the party of the first part should enter upon and commence the work with a full knowledge of the prices so fixed by the Engineer, orif the extra work should be done before such prices should have been fixed for such work then the Engineer should estimate the same at such prices as he should deem just and reasonable and his decision should be final.
The work was completed and on the 30th April, 1879, Mr. Odell, the contractor's engineer, made his final estimate by which he found the price and value of the work done by the appellant and his partner Leprohon amounted to $79,142.65. Previously to this Leprohon, who was associated with the respondent in the performance of the work as a partner and co-contractor, had ceded and transferred all his interest in the contract and in the monies arising therefrom to the respondent.
Of this amount fixed as the price of the work $14,500 had been paid to the appellant, which after allowing to the respondent a deduction MGEEVY. $455.53, the amount of a clerical error appearing on the face of the certificate, a sum of $4,187.32 remained due J for which amount with interest the Court of Queen's Bench have given judgment.
According to the terms of the contract both parties are bound by the engineer's certificate just as firmly as they would have been if they had entered into a formal and authentic deed, fixing the amount due to the appellant for the work done at the amount ascertained by the final estimate. Then there being no dispute whatever between the parties as regards the payment and the error in the certificate it must follow that the judgment appealed against is unimpeachable.
Both this appeal and the cross-appeal must therefore be dismissed with costs.
FOURNIER, and JJ. concurred that the appeal should be dismissed.
Appeal dismissed with costs. Solicitors for appellant: Casgrain, Angers
Lavery. Solicitors for respondent : Caron, Pentland
Stuart.