(DE- APPELLANT;* *May 22.
FENDANT) ............................
.......
*June 5.
AND
HECTOR G. CADIEUX (PLAINTIFF)...RESPONDENT ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, APPEAL SIDE.
GTIRoUARD J.-I entirely concur in the statement of TH facts as presented by Mr. Justice Hall, speaking ap- RA parently for the whole court, but I cannot accept his .
conclusions.
The learned judge says:
The respondent and two others, with Mr. Nelson, architect, were Girouard J. appointed by the City Council of Montreal, on the 21st June, 1895, to act as experts for the tenants under the expropriation proceedings of Three other persons were appointed by the same resolution to act as experts for the proprietors under the same expropriations. Public notice was given that the commissioners for settling the terms of expropriation would not be appointed until 4th September. In the months of July and August. the subject of discontinuing all expropriations was discussed in the City Council, and in the latter month a resolution was adopted that the Superior Court be asked to grant a month's delay in all the cases, which application was granteds and on the 19th of that month a formal judgment was pronounced, terminating all the procedure in the matters of expropriations. On the 21st December of that year, the Legislature of the Province of Quebec confirmed and legalized this termination of the expropriation proceedings which had been commencd in this city.
In the meantime the persons who had thus been appointed to act as experts in case the expropriations were proceeded with, without any instructions from the city officials, and without the knowledge, apparently, of those of the officials who would naturally have been called upon to superintend such work, but with a diligence which could not have been too highly applauded had it been exercised under other circumstances, were quietly proceeding with the examination and valuation of all the properties which the expropriation proceedings of 1894 had designated as the next in order for the widening of streets in case the city should continue that work.
Engrossed apparently in the discharge of these assumed duties, they appear neither to have heard in the public deliberations in the council, nor to have read in the reports in the public press, the determination of the City Council, for reasons of economy, to seek relief from the burden of these expropriations.
The Act of the legislature in December appears to have been the first information which arrested their attention. They ceased then their labours, and presented to the council their bills for the work thus perfoimed by them since the preceding 21st June, about five months, amounting to the sum of $7,605.60 each, for the three unprofessional experts, and $9,278 for the architect-a little over $32,- 000 for the tenants' experts alone-for work for which the city had no use, which it never required and has never used.
The bills were made out upon the basis of $20 for each 25 feet frontage of improved properties, and of $8 per 25 feet frontage of vacant properties, which it appears was the scale upon which the experts had been paid in the previous expropriations.
Some opposition was made in the council to the payment of these bills, but principally upon the ground that a new tariff had been adopted of $20 per improved and 88 per vacant lot, irrespective of extent of frontage; but Gironard J. upon investigation it did not appear that this modification of the tariff had been communicated to those to whom it was intended to apply-and the experts therefore claimed payment upon the basis of their previous settlements.
A committee of the city officials was appointed to examine and report upon the matter, which they did to this effect, that one-half the amounts charged would be ample compensation for the work done under the existing tariff.
By authority of the finance committee of the city, payments were made to these experts from time to time, amounting in the aggregate to one-half the amount of their several claims.
Payment of the balance being refused, the plaintiff took the present action for the balance of his account, $3,805.
The city contested the action upon the ground that the plaintiff had never been employed or set to work to make the valuations in question, and moreover, even if he had been so employed, the value of his services did not exceed the tariff regulation therefor, to wit $20 per improved and $8 per vacant lot-being one-half the amount of the account sued upon.
The plaintiff examined as witnesses, himself, his colleagues, the secretary of the city expropriation bureau and the city treasurer. The latter testified only to the payments made on account by order of the finance committee.
All the others supported plaintiff's claim to its fullest extent, whether based on the tariff recognised for previous expropriations, or even for the actual value of the service rendered.
The city examined no witnesses in defence.
It is doubtful if, independently of payment on account, the plaintiff had any legal right of action against the city for pretended services volunteered by him merely upon a resolution of the council appointing him, and without any instruction from a responsible city official as to the commencement, prosecution or termination of his work.
But, by a payment of 50 per cent upon his claim, the city has deprived itself of this ground of its defence, and was left only with what remained, viz., a contestation over the real value of the services actually rendered.
When it is considered that plaintiff's bill is upon the basis of $18,000 per annum for the services of a carpenter expert, whose regular business, it is proved, was not much interfered with by r the attention he was obliged to give in examining the properties designated for expropriation, and that three others were engaged to perform the same service, it would seem that a reasonable opportunity existed of sustaining defendant's plea in this respect.
The city, however, appears to have considered the effort a hopeless one, or was per- Girouard J. haps convinced that this estimate of the value of the plaintiff's services was, after all, not exaggerated.
At all events, they examined no witnesses in support of their plea, and hence the trial judge, with nothing before him but plaintiff's own evidence, had no alternative but to maintain plaintiff's action to its fullest extent, without the formality even of taking it en ddlibdrd, and we equally, for the same reason, have none but to dismiss the city's appeal.
I do not agree that there is no evidence adduced on behalf of the city.
When Treasurer Robb is crossexamined, Mr. Archambault Q.C. of counsel for the defendant, declares his intention of examining witness as his own witness to save recalling him.
The witness is asked:
Q. Will you please look at this exhibit, Mr. Robb, now shown you, marked plaintiff's Exhibit P. 5, and state whether this purports to be signed by you at the end of the report 1-A. Yes.
Q. That's your signature there ?-A. Yes, I have no doubt that it is an exact copy of the report which has been prepared by Mr. Ethier and myself.
Q. And you are still of the same opinion as you were when you gave that ?-A. I am still of the same opinion as I was then. Exhibit P. 5 is the report of the city officials to which Mr. Justice Hall refers, in which the majority of them, MM. Ethier Q.O.,
Dufresne and Robb (Bourque, dissenting), considers that half of the amount charged is ample compensation for the work done, and Mr. Robb, under oath, persists in his report. It is true that there is some evidence that the value of the respondent's services was as claimed by him. That evidence was given by interested parties, his colleagues, who have similar claims still pendingand also by the secretary of the city expropriation commissioners, Bourque, who, for reasons not explained, dissented from the three other city officials, Ethier, Dufresne and Robb.
It is based upon the fact that like services were pre-viously paid at the same rate; but if the corporation or their servants, on a former occasion, or upon several previous occasions, submitted to what appears to have been most exhorbitant claims, that is no reason for the continuance of the practice in the present instance, where it is resisted. The evidence Mr. Robb and his report, concurred in by MM. Ethier and Dufresne, are more satisfactory; they establish clearly, to my mind, that a gross injustice has been done to the appellants, and although this appeal only involves a question of facts decided by two courts, we have no hesitation in arriving at the conclusion that the respondent has been well paid and that his action for the other half of his account must be dismissed. We are therefore of opinion that the appeal must be allowed with costs.
Appeal allowed with costs.