Judgment of the Court
THE :-(Oral). We think this appeal must be dismissed.
As regards the objection based on the arbitration clause, the general averment in the petition of right that all conditions precedent were performed is no doubt sufficient answer to that. The learned judge of the Exchequer Court in giving judgment for the crown proceeded upon two grounds, first, that there was no stipulation in the contract obliging the engineer to appoint an inspector, and secondly, that the case comes within the special provision of the contract regarding delay.
As to the first ground, it is impossible to say that there was any obligation on the part of the crown to send an inspector, and the engineer had no authority to contract for any inspection of the timber.
By the terms of the contract no change therein is to be binding upon the Government unless sanctioned by order of the Governor General in Council, and the statute provides that no contract by any of the servants of the crown shall bind it. This shows that no contract or agreement by the engineer to send an inspector to TE inspect the timber at the place where it was being prepared could have been obligatory on the crown. Further, there is great force in Mr. Ritchie's contention that in reality the engineer never intended to bind the crown by any such agreement, and that any offer to send the inspector to North Carolina must, on the suppliant's own allegations in the petition, be taken to have been purely gratuitous.
As to the other ground, I am of opinion that the crown cannot be held liable for delay caused by the engineer because this ground of complaint is entirely covered by the clause of the contract expressly providing that the contractor should not have any claim against the crown for damages caused by delay.
Upon all the grounds it appears that the demurrer was properly allowed and the appeal must therefore be dismissed with costs.
Appeal dismissed with costs.