Grand Trunk Railway Co. v. Fitzgerald

Ontario affirming the judgment of the Divisional Court in favor of the plaintiff (respondent).

The action in this case was brought in consequence of an embankment being built on the highway in front of plaintiff's property by which, the plaintiff alleged, he was deprived of access from his property to the street. The only question raised on .the appeal was whether or not the defendants were the proper parties to indemnify the plaintiff. The defendants claimed that the work was done by the Peterborough & Chemong Lake Railway Co. who were the parties, if any, liable to the plaintiff.

The evidence at the trial showed that the Grand Trunk Railway Co. had, by agreement, the use of the railway line in connection with which this embankment was built; that its president and other officers owned the greater part of the stock of the Peterborough & Chemong Lake Railway Co. under whose charter the line was built ; that the building of the embankment was authorized by a resolution of the directors of, and paid for by, the Grand Trunk Co ; that the engineer in charge of the work received his instructions from the president of the Grand Trunk Co. of which he was an officer ; and that the road master and foreman were men in the employ of the Grand Trunk Co.

Under this evidence the courts below held that the defendants were liable to the plaintiff as wrongdoers. The Supreme Court held that this decision was justifled and affirmed it on appeal.

ROSS v. BARRY.

APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment in favor of the plaintiffs (respondents).

The plaintiffs, Barry & Smeaton, were sub-contractors for the mason work on a portion of the line of the Grand Trunk Railway Co. for constructing which Ross & McRae, the defendants, had the contract.

In a conversation between the plaintiff, Smeaton, and the defendant, McRae, before the work was begun Smeaton was given to understand that the standard of the second class masonry to be built by plaintiffs was to be equal to that on the " Loop Line " another part the Grand Trunk system, and shortly after McRae wrote to plaintiff instructing them to go on with the work " according to the plans and specifications furnished by the company."

The plaintiffs had completed a portion of their work when they were informed by the engineer in charge that the quality of second class masonry was to be of a higher standard than they had supposed, which would increase the cost of construction from twentyfive to thirty per cent, whereupon they refused to proceed until Smeaton, who was present at the time, told them to go on and finish it as directed by the engineer and they would be paid. They then pulled down what they had built and proceeded as directed. When the work was nearly done Smeaton tried to back out of his agreement to pay the increased price, but renewed it on plaintiffs again threatening to stop the work. He refused to pay it, however, when the work was completed and an action was brought to recover it, in which the plaintiff obtained a verdict which was affirmed by the Divisional Court and the Court of Appeal.

The Supreme Court held that on the evidence plaintiffs were justified in assuming, from the conversation between McRae & Smeaton, that the standard of quality for the second class masonry was to be that of the Loop Line; that their claim against the defendants was a bond fide one and the decision in their favor should be affirmed.

Ontario affirming the judgment at the trial in favor of the plaintiff (respondent).

The court held that the appeal should be dismissed the questions raised being entirely matters of fact, as to which the decision of the trial judge who saw and heard the witnesses, confirmed as it was by the Court of Appeal, should not be interfered with.