Judgment of the Court
ABBOTT J.:-These appeals are from judgments of the Court of Queen's Bench', unanimously reversing two judgments of the Superior Court, the judgments in the Court below in the one case allowing respondent's action to enforce a builder's privilege in the amount of $10,121.21, and in the other dismissing appellant's action asking that the registration of such privilege be declared null and void. Respondent is the trustee of the estate of one Raoul Lamont, a bankrupt, who in April 1953 had entered into a contract with appellant to construct an extension or addition to a hotel owned by the latter at Coaticook, Quebec. The facts are fully set out in the judgment of Mr. Justice Taschereau in the Court below and I need refer to them only briefly.
The contract to which I have referred is dated April 18, 1953, and it reads as follows:
18 avril 1953. Contrat entre Mr. Charles Garceau de Coaticook, Que. pour une annexe h, I'Hotel "Child" de 40' x 80' d'une 6tage de 14', fini tel que plans et devis que j'ai en mains et avec la coop~ration de Bernard Poitras et le Propridtaire. Ceci avec un pourcentage de 10% sur un montant de $16,000.00. S'il y a un exc6dent, je me charge de continuer le contrat sans aucune charge de pourcentage h condition que M. Charles Garceau, propri6taire de 1'Hotel Child se charge de payer la diffirence de ce montant de $16,000.00 avec condition de $500.00 par mois jusqu'au riglement de la dette finale. 1[19601 Que. Q.B.
S.C.R.
Concurrently with the execution of this agreement appellant furnished Lamont with a coloured sketch and rough plan and specification of the proposed extension. This sketch and plan were both filed as exhibits and it is clear that the details of construction of the proposed building, contained in the said plan, are very meagre indeed. Lamont started work on April 20, 1953, and the whole project was completed on July 17, 1953. It is common ground that the cost of the work substantially exceeded the amount of $16,000 mentioned in the written contract. The Court below found that the cost of the work done and materials furnished by Lamont (aside from any compensation for his own services) amounted to $32,340.98. There was ample evidence to support that finding and, in fact, the appellant made no attempt to challenge its accuracy. Appellant paid $16,000 in the manner specified in the contract and subsequent to the completion of the work he also paid suppliers of material to the extent of $1,478.77 and gave Lamont two promissory notes for $3,000 each, dated July 17, 1953, and July 24, 1953, respectively, both of which were paid at maturity. Total payments made by appellant therefore amounted to $23,478.77.
As I have said, appellant made no attempt to establish that the cost of the work done and materials supplied was not in excess of $30,000. Moreover, a report of Jean Julien Perrault, an architect who was appointed as an expert by the learned trial judge, established that the work done and materials furnished by Lamont had given an added value to the appellant's property of $30,900.
In his defence and at the trial appellant took the position (1) that the contract of April 18, 1953, was a contract at a fixed price within the meaning of art. 1690 of the Civil Code, that he had authorized and paid for additions and alterations to a total amount of $7,478.70 only, and was liable for no further amount and (2) that in taking the ,UELETTE promissory note for $3,000 dated July 24, 1953, to which et at. I have referred, Lamont had accepted it in full and final Abbott J. settlement of all his claims.
As to appellant's second ground of defence, I am satisfied that there is no evidence to support his contention that the note for $3,000 dated July 24, 1953, was accepted by Lamont in final settlement of all his claims. Lamont denied that this note was in full and final payment of his claim, his evidence on this point being as follows:
Q. Maintenant, je vous repose la mime question parce qu'il y a un fait nouveau: Lorsque ce billet du vingt-quatre (24) juillet "cinquantetrois" ('53), PG-6, a 6t6 donn6, est-ce qu'il a 6t6 question que c'6tait en paiement final, qu'it ne vous devait plus rien?
R. Non. Moi, j'ai demand6 ca pour qu'il me donne une chance pour passer ra h ma banque pour que je paye d'autres cr6anciers.
Q. Pour 6viter la faillite?
R. Pour 6viter la faillite, justement.
Moreover, it is to be observed that no fee for Lamont's services was included in the total payments of $23,478.70 made by appellant. Appellant obtained no final receipt from Lamont and the note for $3,000 dated July 24, 1953, bears no indication that it was given by appellant and accepted by Lamont in full and final settlement.
The question as to whether the contract in issue here comes within the provisions of art. 1690 of the Civil Code depends, of course, upon the interpretation and effect to be given to the agreement of April 17, 1953. In the Court below Mr. Justice Taschereau speaking for the Court held that it was not a contract at a fixed price under the terms of art. 1960 C.C. I share that view and there is little I can usefully add to what he has said in this respect. Article 1690 C.C. contains an exception to the general rules as to proof and, as such, it must be strictly interpreted. Commenting on this article, Faribault in his "Trait6 du Droit Civil du Quebec", vol. XII, page 450, says:
On distingue le march6 h forfait absolu ou pur et simple, et le march6 h forfait relatif. Il est absolu lorsque le propridtaire ne s'est pas r6serv6 le droit ou le privilige de modifier les plans et devis durant le cours des travaux. II n'est que relatif dans le cas contraire. L'article 1690 n'a d'application que si le contrat h forfait est absolu: lorsque ce contra t est relatif, on doit appliquer les rfgles ordinaires de la preuve.
S.C.R.