Nova Scotia Construction Co. v. The Quebec Streams Commission

the petitioner presents, in my view, a question of law of certain importance. Other questions are raised in the E appeal involving the interpretation of the Bankruptcy Act in respect to the character of the debt essentially required to entitle a creditor to present a bankruptcy petition; in J. respect to the debtor's occupation and whether he was a trader according to the Act; also in respect to the true meaning of the word " goods " in subsection (t) of section 2 of the Act and whether it includes immovable property, having regard to the apparent discrepancy between the French and the English version of the Act. These questions, in my opinion, afford special and sufficient reasons why leave to appeal should be granted to the applicant. There will therefore be an order granting the application and a stay of proceedings. The appellant will not be required to provide security for costs; but should he elect to give security so as to get the benefit of subsection 4 of section 174 of the Act, I fix the amount of the security at $500. Any security already provided when the appeal was lodged in the Court of King's Bench shall remain in force in any event. Costs of this application to be costs in the appeal.

Application allowed. THE NOVA SCOTIA CONSTRUCTION

COMPANY LIMITED f

THE QUEBEC STREAMS COMMIS- SION

THE ROYAL BANK OF CANADA it. APPEAL from the decision of the Court of King's QUEC Bench, appeal side, province of Quebec, affirming the judgment of the Superior Court, S6vigny J., and maintaining the appellant's action in part.

The respondent, The Quebec Streams Commission, is an instrumentality of the Crown in the right of the province of Quebec and has been incorporated to build improvements in the rivers and streams of the province; and, under statutory provisions, it was authorized to erect certain structures designed to raise the high water level of Lake Kenogami to a certain height and to regulate and control the discharge of the lake at its outlet. The respondent called for tenders, after preparing plans and specifications.

The appellant put in a tender much lower than the other offers received by the Commission which had estimated the cost at $1,324,513, its tender being for $880,682, a difference of more than $225,000 between it and the lowest of the other tenders submitted which had been prepared on the same estimates and quantities. The Chief Engineer of the Commission warned the appellant that he considered their price too low and that he did not feel that the Commission should accept their tender. However the appellant insisted to do the work and signed a contract by which it agreed to do the work embraced by its tender and contract for the sum of $880,682 and to proceed at such rate of progress as to enable the waters of Lake Kenogami to be raised to elevation 108 on April 1st, 1924, for the further sum of $105,000, making a total of $985,682, and further agreed Smith JJ. was delivered by Smith J.-The Court was unanimous in dismissing the appeal with costs.

Mr. Justice Cannon, after stating the facts as concisely as possible (the case being printed in seventeen volumes), added the following remarks:

J.-*

Can a quantum meruit be recovered in this case?

The contract would first have to be set aside either by mutual consent of the parties or by a judgment. Arts. 1022 (3) and 1138 C.C. The works have been executed and the case of United Shoe Machinery v. Brunet (1) is authority to the effect that, even in case of false and fraudulent representations, a contract is not void, but merely voidable at the election of the person defrauded, after he has had notice of the fraud.

In the present case, the appellant asked for an extension of time, as provided in the contract, to complete the works, which was granted; but never at any time did elect to have the contract cancelled for the error alleged in the declaration, and the action itself does not pray for such cancellation by the Court. On the contrary, appellant elected to treat the contract as subsisting, claiming that it executed Co. it in its entirety and cannot and does not now asked to avoid it. Art. 1000 C.C. Error, fraud and violence or fear THe are not causes of absolute nullity in contracts. They only sr a give a right of action, or exception, to annul or rescind Commasthem.

Moreover, in this case, clause 37 protects the respondent completely and binds the appellant to suffer the consequences of any miscalculation or misinformation bona fide contained in the call for tenders or plans. We have here a "march6 sur devis " defined as follows by Planiol and Ripert, " Trait6 de droit civil frangais," 1932, tome XI, p. 163, no. 917:

917. Suite.

March6 sur devis.-A.u lieu de fixer dufinitivement par avance la somme globale A payer, les parties peuvent se contenter de simples pr6visions, bas6es sur le cofit d'ex6cution des divers d6tails. L'entrepreneur pr~sente ces pr6visions dans un borit appel6 devis, et le march6 est dit "march sur devis." Le prix total d6pendra le l'ensemble des travaux accomplis conform6ment au devis. Il peut donc varier par I'addition de d6tails nouveaux, de travaux suppl6mentaires. On peut dire que dans ce cas encore il y a march6 h prix fait, mais article par article, et non plus en bloc; dhaque d6tail du travail a son prix particulier, et le total k payer ne pourra 6tre connu qu'apris ex6cution, suivant que tels ou tels travaux auront 6t6 faite. Il est fix6 apris coup, et non d'avance comme dans le forfait. Le march6 sur devis concerne presque exclusivement les entreprises de travaux mat6riels.

If appellant had wished to protect itself and secure a possible increase in the unit price, it should have done what its witness Swan says at page 120, line 28, vol. III:

In actual practise myself, I invariably stipulate if there is some question of depth that we do not know about and that there is likely to be a variation in the depth of the foundation, we invariably put in a clause to the effect that unit rates under the contract would be applicable down to five feet below what is shown on the plans, and anything beyond that, then you have got to take the matter into consideration and try and meet the cost and work out what is a fair and reasonable price to allow for the additional cost. That is my own personal practice and has been with my chiefs for all my career.

Nothing of the sort happened; appellant took a chance and its speculation brought it a loss. Who is to suffer for its miscalculation?

Article 1012 C.C. enacts:

What I have said disposes, in my opinion, of any attempt to recover for the alleged tort, under 1053 of the Code, because the information that the appellant says it relied upon was, in its view, grossly inaccurate and misleading. Comms- Grant v. The Queen (1), under circumstances more favourable to the petitioner, was decided in favour of the Crown. J. It should have consulted an experienced engineer to prepare a well considered tender and understood that the honest belief and hope of the Respondent's engineer did not amount to a warranty as to plans and quantities; forsooth, it could have found that out by reading, with enough attention to understand them, the specifications and standard form of contract placed at its disposal.

This case is distinguishable from Pearson & Sons v. Dublin Corporation (2), as it is impossible to find here fraudulent representations. The contract in this case stands as the law of the parties. In Bush v. Whitehaven Trustees, reported in Hudson's On Building contracts, vol. 2, p. 122, there was a finding by the jury, that the conditions of the contract were so completely changed, in consequence of the defendants' inability to hand over the sites of the work as required as to make the special provisions of the contract inapplicable. Here the contract was made with anticipation of the circumstances of which the appellant complains and provided for them; it is therefore applicable and must be applied. I refer to these English cases because they have been quoted and discussed before us and below, although this case must be, and our decision is governed by the law of Quebec. These findings, on matters of fact, unanimously concurred in by the Court of King's Bench, cannot be disturbed by us, unless we reach the conclusion that they are clearly wrong or against the evidence.

The appellant has failed to establish either of these two conditions.

Under the statute 3 Geo. V, c. 6, secs. 6 and 16, any change in the consideration or price of the contract for extra work, not covered by the terms of the contract or the unit price, had to be approved by the Lieutenant-Governor in Council. The engineer, even if acquiescing to any change, could not bind the Crown and change the contract. See De Galindez v. The King (1).

The province paid appellant large sums over and above the price of its tender. It is not entitled to more, unless the respondent agrees to it. We cannot, by a judgment, order a thing, which, under the contract, can be done only by mutual consent, expressed by Order in Council, accord- Cannon J. ing to the special statute limiting the capacity to contract of the respondent. Arts. 360-364-366 C.C. We agree with the arguments and conclusions contained in the very able and complete judgment of the learned trial judge and the clear cut exposition of the law of contracts of the province of Quebec of the ex-Chief Justice Lafontaine and we concur when he says:

Plaintiff can get no relief from the courts.

His case might bring further adjustments by mutual consent, if the respondent agrees to reconsider the matter.

On the evidence, it is impossible to differ from the conclusions unanimously arrived at by the provincial courts and the appeal must be dismissed with costs.

Mr. Justice Smith agreed with Mr. Justice Cannon that the appeal should be dismissed, being of the opinion that

"in view of the provisions of the contract, there was no misrepresentation and no difference of conditions to warrant the setting aside of the contract entered into by the parties, and that the appellant must be paid for the work done according to the terms of the contract, except as varied by mutual consent."

Appeal dismissed with costs.

Boulanger, Marquis & Lessard.