Judgment of the Court
GIROUARD J.-On the 26th March, 1900, in the City of Sherbrooke, the firm of A. Blondin & Co., plumbers and gas litters, at St. Hyacinthe, undertook to perform certain work of plumbing and heating in a certain building of the appellant then in course of construction in the City of Sherbrooke.
The work was stipulated to be finished on the 1st July, 1900 ; the price as stipulated for the plumbing.job was $1,500, and for the heating $4,000.
Two contracts were signed containing about the same clauses, especially as to the completion and payment of the work. In the plumbing contract the respondents agreed to furnish all the labour and material for a first class plumbing job al complete, according to certain plans and specifications fully set out. The price of $1,500 was to be paid when the work is all completed satisfactorily to said Whiting.
Finally the two following clauses are to be found in the plumbing contract:
All work to be completed and tested by July 1st, 1900, any work on this contract left undone after that date shall be deducted from our contract price, twenty dollars per day for each and every day, and retained by said Whiting as liquidated damages and the same shall be eatisfactory to us.
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Should the contractors not complete this contract, that is, fail so to do, they shall then pay to the said Whiting one thousand dollars within thirty days from such failure for damage she will have sustained thereby.
In the heating contract the respondents agreed to furnish all labour and material necessary for a first class heating apparatus to heat the entire building according to certain plans and specifications fully set out. The respondents guaranteed to heat the whole vnsIT building to seventy degrees Far. when the temperature would be ten degrees below zero, and that
Girouard J. they shall nob receive any pay on this contract until the work is all completed to the satisfaction of the said Whiting.
It was also understood between the parties that the price agreed upon by the said contractors will be $4,000, to to be paid when all such work is completed, not any pay before the completion of all this contract.
The following clauses are also to be found in the heating contract:
The contractors hereby agree to commence working on said contract within eight days after signing this contract, also to complete all said contract by the first day of July, 1900, that is to say all work above basement.
Should the said contractors fail to complete any of the contract above basement by that date, then the said contractors shall pay to the said Whiting twenty dollars per day for each and every day the said contract remains incomplete, and the said Whiting shall deduct such from the contract price and retain such as liquidated damages.
All work on this contract in basement must be completed by July 1st, 1900, if not, the same forfeit by the contractors, twenty dollars per day, shall be made by them from their contract price.
* * Should the contractors not carry out their part of this contract, that is, fail to complete, they then, within thirty days, shall pay to the said Whiting one thousand dollars for damages that she has sustained by them not fulfilling their contract.
The work was not completed on the first July, 1900, and in fact late in the fall, on the 10th November, 1900, and on the 15th December of the same year, the respondents were protested and requested to complete their work, giving particulars at the same time. On the 1st February, 1900, the respondents sued the appellant for the full contract price of- the two jobs, and also for certain damages, alleging that they were complete and that any defect or delay in the completion of the work was due to the fault of the appellant and her agents.
The appellant met this action by referring to the above J. clauses of the contract and that as the respondents had not completed their work no action had accrued to them for any part of the price money and that the action taken was premature, reserving to herself a right to recover such damages as the respondents might be liable for. At the closing of the enquite, the respondents moved to amend their declaration by adding a count for quantum meruit which was rightly refused three days later.
Finally on the 21st March, 1902, after a voluminous enqute covering over a thousand pages of the printed case, Mr. Justice Lemieux, who heard and saw the witnesses, found that the respondents had not completed their work and proceeded to deduct from the contract price, first, the sum of $1200 from the price the heating apparatus contract, and one hundred dollars from the price of the plumbing contract, and finally condemned the appellant to pay the sum $3,791.71 with interest and costs, the appellant paying nine tenths of the cost of enqudle. The learned judge has left no notes of his judgment, but his formal judgment is fully motiv4.
I extract from it three considdrants bearing upon the point which is the ground for our judgment:
The appellant appealed from this judgment to the Court of Review in Montreal, which, on the 18th June, 1903, purely affirmed the same with costs.
(Taschereau, Loranger and St. Pierre JJ.)
The appellant now appeals from that judgment to this court.
That judgment establishes beyond doubt that the work contracted for by the respondents, either for heating or plumbing, was not completed when they took their action. In fact the evidence shews that it was so completed by the appellant after the institution of the action.
The respondents cannot complain of this judgment as they did not appeal from it and they are consequently found in default within the terms of the contract. As we read the contract the full completion of the work was a condition precedent suspensive of the payment of any money under the contract and until it is accomplished the respondents have no action; such is the well settled jurisprudence of Quebec: Bender v. Carrier (1) in 1887; Saumure v. Les Commissaires d' Ecole de St. Jerome (2), in the Court of Review, in 1-88; Stanton v. La Compagnie du Chemin de Fer Atlantique Canadien in 1891, in the Court of Queen's Bench, and The Royal Electric Co. v. The Corporation of the of Three Rivers in 1894, in this court.
We fully realise the desire of the learned judge to J put an end to a very expensive litigation, but to do so there must be a proper issue between the parties, that is, an action by one or other of the parties to have the various accounts and claims between them adjusted and settled after the completion 'of the work. Two witnesses were examined to establish the value of the work remaining to be done, but this was done only incidentally in support of the allegation of the deferice that the work had not been completed. The evidence was never intended to establish the claim of the appellant for expenses in finishing the work or liquidated damages under the contract.
The appeal is, therefore, allowed with costs in all the courts, sauf recours.
Appeal allowed with costs.