Supreme Court of Canada· 1898
Goodwin v. The Queen
(1898) 28 SCR 273
ContractJD
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Goodwin v. The Queen Collection Supreme Court Judgments Date 1898-03-08 Report (1898) 28 SCR 273 Judges Taschereau, Henri-Elzéar; Sedgewick, Robert; King, George Edwin; Gwynne, John Wellington; Girouard, Désiré On appeal from Federal Court of Appeal Subjects Contract Decision Content Supreme Court of Canada Goodwin v. The Queen (1898) 28 SCR 273 Date: 1898-03-08 George Goodwin (Claimant) Appellant And Her Majesty The Queen (Respondent) Respondent 1897: Nov. 6, 8; 1898: Mar. 8. Present:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ. ON APPEAL FROM THE EXCHEQUER COURT OF CANADA. Contract, construction of—Public Works—Arbitration—Progress estimates—Engineer's certificate—Approval by Head of Department—Final estimates—Condition precedent. The eighth and twenty-fifth clauses of the appellant's contract for the construction of certain Public Works were as follows:— “8. That the engineer shall be the sole judge of work and material in respect of both quantity and quality, and his decision on all questions in dispute with regard to work or material, or as to the meaning or intention of this contract, and the plans, specifications, and drawings, shall be final, and no works or extra or additional works or changes shall be deemed to have been executed, nor shall the contractor be entitled to payment for the same, unless the same shall have been execuled to the satisfaction of the engineer, as evidenced by his certificate in writing, which certificate shall be a condition preceden…
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Goodwin v. The Queen Collection Supreme Court Judgments Date 1898-03-08 Report (1898) 28 SCR 273 Judges Taschereau, Henri-Elzéar; Sedgewick, Robert; King, George Edwin; Gwynne, John Wellington; Girouard, Désiré On appeal from Federal Court of Appeal Subjects Contract Decision Content Supreme Court of Canada Goodwin v. The Queen (1898) 28 SCR 273 Date: 1898-03-08 George Goodwin (Claimant) Appellant And Her Majesty The Queen (Respondent) Respondent 1897: Nov. 6, 8; 1898: Mar. 8. Present:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ. ON APPEAL FROM THE EXCHEQUER COURT OF CANADA. Contract, construction of—Public Works—Arbitration—Progress estimates—Engineer's certificate—Approval by Head of Department—Final estimates—Condition precedent. The eighth and twenty-fifth clauses of the appellant's contract for the construction of certain Public Works were as follows:— “8. That the engineer shall be the sole judge of work and material in respect of both quantity and quality, and his decision on all questions in dispute with regard to work or material, or as to the meaning or intention of this contract, and the plans, specifications, and drawings, shall be final, and no works or extra or additional works or changes shall be deemed to have been executed, nor shall the contractor be entitled to payment for the same, unless the same shall have been execuled to the satisfaction of the engineer, as evidenced by his certificate in writing, which certificate shall be a condition precedent to the right of the contractor to be paid therefor but before the contract was signed by the parties the words "as to the meaning or intention of this contract, and the plans, specifications and drawings" were struck out. “25. Cash payments to about ninety per cent of the value of the work done, approximately made up from returns of progress measurements and computed at the prices agreed upon or determined under the provisions of the contract, will be made to the contractor monthly on the written certificate of the engineer that the work for, or on account of, which the certificate is granted has been duly executed to his satisfaction, and stating the value of such work computed as above mentioned and upon approval of such certificate by the minister for the time being, and the said certificate and such approval thereof shall be a condition precedent to the right of the contractor to be paid the said ninety per cent or any part thereof. * * * * * * * * * * * * A difference of opinion arose between the contractor and the engineers as to the quantity of earth in certain embankments which should be paid for at an increased rate as "water-tight" embankment under the provisions of the contract and specifications relating to the works and the claim of the contractor was rejected by the engineer, who afterwards, however, after the matter had been referred to the Minister of Justice by the Minister of Railways and Canals, and an opinion favourable to the contention of the contractor given by the Minister of Justice, made a certificate upon a progressive estimate for the amount thus in dispute in the usual form but added after his signature the following words:—"Certified as regards item 5, (the item in dispute,) in accordance with letter of Deputy Minister of Justice, dated 15th Jan., 1896." The estimate thus certified was forwarded for payment, but the Auditor General refused to issue a cheque therefor. Held that under the circumstances of the case the certificate sufficiently complied with the requirements of the twenty-fifth section of the contract; that the decision by the engineer rejecting the contractor's claim was not a final decision under the eighth clause of the contract adjudicating upon a dispute under said eighth section and did not preclude him from subsequently granting a valid certificate to entitle the contractor to receive payment of his claim, and that the certificate given in this case whereby the engineer adopted the construction placed upon the contract in the legal opinion given by the Minister of Justice, was properly granted within the meaning of the twenty-fifth clause of the contract. Murray v. The Queen, 26 Can. S. C. R. 203, discussed and distinguished. Appeal from the judgment of the Exchequer Court of Canada[1] rendered on the 11th January, 1897, by which the preliminary decision of that court at the time of the trial was set aside and the appellants claim upon the reference made, under the provisions of the Exchequer Court Act[2], by the Minister of Railways and Canals, was refused without costs. The Minister of Railways and Canals under the provisions of the twenty-third section of the Exchequer Court Act, (50 & 51 Vict. c. 16) referred to the Exchequer Court of Canada for adjudication the claim of the appellant arising in respect to work done by him under a contract with the Department of Railways and Canals of Canada on the construction of part of the embankments of the Soulanges Canal. Under this reference the trial took place in the Exchequer Court at Ottawa and on 20th June, 1896, a preliminary judgment was rendered declaring the appellant entitled to recover $58,260 for the work in question, subject to that amount being increased or reduced in accordance with such reference as might be directed upon the application of either party for the purpose of ascertaining, upon the basis of the said judgment, the exact amount to which he might be entitled, and granting the appellant costs of suit. Leave was reserved to the appellant to move to increase the amount to $73,260 the full amount of his claim and to the respondent to move to set aside the judgment or to reduce the amount upon certain principles mentioned in the judgment. Motions on behalf of both parties were afterwards heard with the result that the judgment was set aside as above stated. The present appeal sought to have it declared that the appellant was entitled to be paid the full amount of his claim, or at least, that he was entitled to the amount declared to be due to him by the preliminary judgment rendered at the trial. The chief points at issue in the case were as to the validity of the approval by the Minister of Railways and Canals of a certain certificate or estimate made by the Chief Engineer of the Department of Railways and Canals relating to amounts payable for work done in water-tight embankments, and as to the sufficiency of the certificate itself. The particulars of the case and circumstances under which the certificate in question was made are fully set out in the judgment of His Lordship Mr. Justice Sedgewick now reported. The clauses of the contract and specifications in question in the case are also quoted in the judgments reported. At the close of the argument it was understood that, if the court should determine in favour of the Chief Engineer's certificate relied on by the claimant, the appeal should be allowed, and the case be at an end in this court, judgment being directed to be entered for the claimant for the amount claimed, and interest, if the court should so decide, after the parties were heard on the question of interest:—But that if the court should hold that the claimant was not entitled to recover upon the certificate, then that both parties should be heard upon the contentions before the Exchequer Court as to "alternative relief," and that all objections to the jurisdiction of this court and of the Court of Exchequer should then be open to the respondent as if the appeal were being heard for the first time; and in the latter case that no judgment should be entered in this court until after the parties should have been so heard on that second branch of the case. Osler Q.C. and Ferguson Q.C for the appellant. The opinion expressed by Mr. Justice Sedgewick at page 212 of the report in Murray v. The Queen[3], is mere dictum and is not a binding decision and, in any case, does not declare that they want of an express statement that the work had been executed to the satisfaction of of the chief engineer would be sufficient to defeat an action on such a certificate as he was discussing in that case. The expression of opinion, in that case, to the effect that the Minister of Railways and Canals must express his approval by counter-signing the certificate, is not well founded nor binding as authority because the point with reference to which it was given was neither argued nor involved in the decision of that case. See Elmes v. Burgh[4]; Roberts v. Watkins[5]; McGreevy v. The Queen[6], at page 401; Kane v. Stone Co,[7]. The certificate in this case shows sufficiently that the work was done in accordance with the contract and accepted, and the evidence shows it to have been done satisfactorily. See Hudson on Building Contracts (2 ed.) pp. 294, 299; Harmon v. Scott[8]; Clarke v. Murray[9]; Galbraith v. Chicago Architectural Iron Works[10]; Rousseau v. Poitras[11]; Wykcoff v. Meyers[12], at pages 145, 146; McGreevy v. The Queen (3), at page 405. The question before the court is a legal one as to the construction of the written contract and specifications annexed. The engineer's position will appear on referring to Hudson on Contracts (2 ed.) p. 279, and the following cases. In re Carus Wilson v. Greene[13], at pages 7, 9; Sharpe v. San Paulo Railway Co.[14], at page 609; Ranger v. Great Western Railway Co.[15] at page 115; Farquhar v. City of Hamilton[16]. If, in the opinion of the Minister of Railways and Canals, or in that of his legal adviser, the position taken by the appellant with reference to any additional claim or allowance, depending upon a construction of the contract, specifications or plans was well founded, the Chief Engineer was acting in accordance with his duty in certifying as he did in this case. Appellant is entitled to judgment for the $73,260 upon the merits of the dispute, in view of the facts proved/whether his contention as to the construction of the contract, specifications and plans in regard to his right to payment for earth in water-tight embankments is or is not correct. The formal reference is sufficiently wide in its terms, to include the reference of the claim upon its merits to the Exchequer Court, and the claim was before the Exchequer Court by virtue of that reference. The learned judge of the Exchequer Court had jurisdiction to adjudicate upon the merits, and ought to have adjudicated by his last judgment, in view of his findings, that the appellant was entitled to judgment upon the merits of the claim for the full amount of 173,260. There was error in the deduction, in the judgment of the judge at the trial, provisionally of 100,000 cubic yards for "mucked material, sand, &c.," which ought not, he thought, to be paid for as earth in water-tight banks as not being selected material, and in giving the respondent the right to a reference to show if possible a still larger quantity to be deducted under that head. The engineers considered the material all sufficiently good to put into the embankments, and rejected none of it as being unfit for that purpose, but passed it and directed or approved of putting it into the embankments, and the appellant is entitled to the price under item 5 of the schedule[17]. for the whole of it. The engineer had no authority, under the contract or specifications, after the material has been put into the embankments under his directions and to his satisfaction, to say that it should not all be paid for under item 5 as "earth in water-tight banks." The appellant also submits that he is entitled to interest and his costs in both courts. Ritchie Q.C. and Chrysler Q.C. for the respondent. The dispute became subject to arbitration under the clause in the contract, and the engineer had no power to grant the amended certificate. He had full power to decide questions depending upon the construction of the contract, and having done so by the former certificate became functus officio. Lloyd v. Milward[18]. The Act respecting the Department of Justice does not apply, because the chief engineer was not acting as the head of the department, requiring to be advised upon a matter of law connected therewith, nor was he, as to the certificate in question, acting as a servant or officer of the Crown whose duty it was to sign any certificate that he was advised or directed to sign. In theory he was appointed by both parties as arbitrator to stand between the parties and do justice to both. The position of the chief engineer, under clause 25 of the contract, is incompatible with that ascribed to him by the Exchequer Court judgment, and he was not a person whose duty it was to seek and accept the advice of the Department of Justice, as upon a matter of law connected with the Department of Railways and Canals. See Hudson, Building Contracts, vol. 1 (2 ed.) p. 301. The discussion of the position of the engineer, in Ranger v. Great Western Railway Company[19] at page 91, is not a correct statement of the position of the engineer under the present and similar contracts. See also Clements v. Clarke[20], at page 221; Sharpe v. San Paulo Railway Co.[21]; Kimberly v. Dick[22] at page 19; Farquhar v. City of Hamilton[23], and earlier cases there referred to, and Peters v. Quebec Harbour Commissioners[24]. The question was not wholly one of construction of the contract, but was partly a question of fact as to what had been laid out by the engineers as watertight embankments, and how much of the banks had been constructed in accordance with the specification and of selected material. Upon both of these questions the determination by the Department of Justice, that the whole bank should be so paid for, was opposed to the views of the engineers as expressed in the certificate or therein included by reference. The certificate, as found by the learned judge himself, was in fact wrong, because upon the most favourable view for the contractor it included at least 100,000 yards of material not according to specification and was, upon the facts, given for at least $15,000 too much. Thus it is very clear, that the giving of the certificate was not a pure question of construction of the contract, to be determined by the Department of Justice, overruling the Chief Engineer. The Department of Justice did not, in fact, advise the giving of a certificate for the full amount, and it seems to have been signed under a misapprehension, as to the scope or effect of the advice contained in the letter from the Department. The letter of the Deputy Minister merely contained an intimation that the late Minister of Justice, who at the time had ceased to be such minister, and was no longer the responsible adviser of the Crown, had come to the conclusion that the contractor's claim should be entertained. The duty and power of the Chief Engineer under clause 25 of the contract, was not affected by the omission from clause 8 of the usual provision making his judgment upon questions of the construction of the contract final. The cases cited show that the claim of the contractor to recover upon this certificate is inconsistent with the claim urged in the alternative, that the proceeding is a reference of a matter in dispute. Clause 33 of the contract was only intended to be made use of in cases where the work was finished, and the Chief Engineer had finally certified under clause 25, and has no application to work under a pending contract. It contemplates a special reference of a matter in difference, and the evidence shews that there was no matter in difference but that the question was, whether the claimant had a valid certificate capable of being enforced by action. The decision of the Exchequer Court Judge is that of an arbitrator and is final and not appealable to the Supreme Court. Upon the evidence it seems clear that the certificate is bad, on the grounds that it does not express the judgment of the engineer; that the parties agreed to accept his certificate; that he is the person designated by the contract, and the Crown are not bound by the decision or judgment of any other person. Clause 25 requires that two facts or findings by the Chief Engineer shall be stated in writing:—That the work has been duly executed to his satisfaction. The value of the work computed as therein above mentioned and this has not been done. The question as to how much earth was placed in the water-tight embankments, laid out and made up in accordance with the specification, was a matter peculiarly given to the engineer, and upon which the engineer's judgment was required; it was one of the things as to which his satisfaction had to be expressed under clause 25 of the contract. The certificate not only does not state that the work was done to the satisfaction of the engineer, but, by reference to the documents incorporated with it, expressly states the contrary. See Eads v. Williams[25] at page 686; Ellison v. Bray[26]. Other cases are collected in Redman on Awards, p. 98, and Russell on Awards (7 ed.) 207. See also In re Eastern Counties Railway Co. & The Eastern Union Railway Co., Arbitration[27]; Jackson v. Barry Railway Co.[28]. The question is referred to incidently in Peters v. Quebec Harbour Commissioners[29] at page 696, by Strong J. and by Gwynne J. at page 698, and Patterson J. at page 700. The certificate is also bad because it does not fulfil the requirements of clause 25 of the contract; Murray v. The Queen[30]; The Queen v. Stars[31]. The certificate is invalid because the question was previously finally determined by the Engineer's decision. In regard to the classification of the same material in the former certificate or progress estimate, (no. 23,) is also final, and he had no power to revoke or recall his decision so given. Certificate no. 23 finally determined the rights of both parties, and the progress estimate now sued upon was void, as being made by an officer who had already given a final decision upon the same question, and was therefore functus officio, as to that question. The approval of the Minister, which should be in writing and is also a condition precedent to the right of recovery, was not established. In any event, if the court assumes jurisdiction under clause 33, to determine the meaning of clause 11 of the specification, the judgment of the court should merely be a declaratory one, leaving the contractor to obtain a certificate under clause 25 of the contract, for the amount which may appear to be due to him, applying the principle of construction declared by the court. TASCHEREAU J.—I have had communication of the elaborate notes of my brothers Sedgewick and Girouard and I agree with them that this appeal should be allowed. Without dissenting from any of the grounds upon which they have reached this conclusion, I deem it necessary to state concisely my views of the case. The claim referred to the Exchequer Court and now before us is the claim of the appellant for $73,260, based upon the Engineer's certificate no. 24. I am of opinion that this certificate under clause twenty-five of the contract, approved of by the Minister as it has been, is sufficient to entitle the appellant to his claim. It is clearly a certificate that the work "for which it is granted has been duly executed to the satisfaction of the Engineer" in the terms of the contract. It is, coupled with Munro's certificate, a certificate that this money is due under the contract and he was the sole judge of it. We cannot go behind it, and take upon ourselves to ascertain whether or not this amount is due, after he has certified that it is. I concur fully in what is said upon this point by my brothers Sedgewick and Girouard. If I mistake not such would have been the judgment of the Exchequer Court, if it had not been for a misconception of Murray v. The Queen[32]. I agree also that certificate no. 23 does not militate against appellant's claim. Clause twenty-five of the contract expressly says that the value certified to under these certificates given during the construction is merely approximate, and clauses twenty-six and twenty-seven indicate clearly that there is no final certificate at all, under the contract, but the one to be given at the final completion of the work, an event which has not yet occurred. The Crown's contention that because by certificate number twenty-three the engineer had not the power to issue certificate number twenty-four for that part of the work in question, is equivalent to nullify entirely clauses twenty-five and twenty-six and render them meaningless. The chief engineer's certificate number twenty-four must, in my opinion, be read as if all the words under the signature "Collingwood Schreiber" were struck out. I understood counsel for the Crown at the argument to rely exclusively on those words, and on certificate number twenty-three, in support of their case. The appeal is allowed with costs and judgment is ordered to be entered for the appellant for $73,260 with costs, Mr. Justice Gwynne and Mr. Justice King dissenting. We will hear counsel as to the question of interest. GWYNNE J—The question which is before us upon this appeal is whether or not the claimant is entitled to recover the sum of $73,260, which upon the evidence in the case he claims to be entitled to recover under the terms and provisions of the contract set out in his statement of claim. Upon the 9th May, 1893, the appellant entered into a contract with Her Majesty, represented by the Minister of Railways and Canals of Canada, for the performance of certain work upon sections 4, 5, 6 & 7 of the Soulanges Canal in the contract mentioned. For the determination of the present appeal it will be necessary to consider only a few of the clauses of the contract and of the specifications which are referred to therein, and made part thereof. By the specifications which were made part of the contract it was provided among other things as follows: 5. There will only be two classes of excavation recognized or paid for, namely, "earth" or "solid rock." 6. The price tendered for "earth excavation" must cover the entire cost of excavating, hauling and forming into embankments, all kinds of materials found in the pits for lock, weirs or other structures, and in the prism of the canal, raceways, side ponds or wherever excavation is necessary, except solid stratified quarry rock. This price shall include the cost of removing boulders of all sizes, indurated clay, hard pan, &c., for none of which will any extra or additional allowance be made. It is also distinctly understood and agreed upon that no excavation shall be paid for below the exact grade line of the bottom of the canal works, or outside the line of the slopes, unless the same be executed under the written instructions of the engineer. 7. No allowance whatever beyond the prices tendered for excavation will be made for haul. The surplus material arising from the prism, &c., on section no. 7 shall, after making up the banks on that section, be carried forward to widen the embankments of sections to the eastward; and the surplus on section no. 6 shall be dealt with in the same manner, so that all the excavation arising from the sections embraced in this contract west of lock no. 5, will be disposed of in making the embankments on each side of the summit level, between stations 180 and 460, filling around the various structures, &c. This distribution of material to be made as will be directed by the engineer without entitling the contractor to any extra allowance whatever. The attention of parties tendering is specially drawn to this section of the specification. 11. Wherever the surface level of the water in the canal is higher than the ground alongside, water tight banks shall be made when so directed. In these cases the top soil must be removed for such width and depth as may be considered necessary to form the embankment seats. The material arising from this mucking to be deposited where pointed out. It will be paid for as ordinary earth excavation. The seats shall also be well roughed up with a plough so as to make good bond with the first layer of earth forming the base of the embankment. Puddle walls or cut-offs to be made where required—the puddle to be prepared and laid as specified hereafter. When the bank seats are properly prepared, inspected and approved, and not till then, the bank shall be carried up in layers of selected material, of about eight inches in thickness, well spread, the lumps broken, watered, trodden down or otherwise compacted and carefully shaped to the heights and slopes given by the engineer. Only such portions of the embankments as shall be laid out by the engineer, and made up in strict accordance with the foregoing specifications, will be paid for as "earth in water tight banks." 99. The plans now exhibited are only intended to show the general mode of construction adopted; but detail drawings which must be strictly carried out will be supplied for the guidance of the contractor as the work proceeds. By the contract it was specially covenanted and agreed by and between the parties among other things as follows: Paragraphs. That the contractor will at his own cost provide all and every kind of labour, machinery and other plant, materials, articles and things whatsoever necessary for the due execution and completion of all and every the works set out or referred to in the specifications hereunto annexed and set out or referred to in the plans and drawings prepared and to be prepared for the purposes of the work, and will execute and fully complete the respective portions of such works and deliver the same complete to Her Majesty on or before the day of (a day not material on this appeal) the said works to be constructed of the best materials of their several kinds and finished in the best and most workmanlike manner, in the manner required by and in strict conformity with the said specifications and the drawings relating thereto, and the working or detail drawings which may from time to time be furnished, (which said specifications and drawings are hereby declared to be part of this contract), and to the complete satisfaction of the chief engineer for the time being having control over the work. Paragraph 8. That the engineer shall be sole judge of work and material in respect of both quantity and quality and his decision on all questions in dispute with regard to work or material shall be final, and no works or extra or additional works or changes shall be deemed to have been executed, nor shall the contractor be entitled to payment for the same, unless the same shall have been executed to the satisfaction of the engineer as evidenced by his certificate in writing, which certificate shall be a condition precedent to the right of the contractor to be paid therefor. Paragraph 9. It is hereby distinctly understood and agreed that the respective portions of the works set out or referred to in the list or schedule of prices to be paid for the different kinds of work, include not merely the particular kinds of work or materials mentioned in the said list or schedule, but also all and every kind of work, labour, tools, plant, materials, articles and things whatsoever necessary for the full execution and completing ready for use of the respective portions of the works to the satisfaction of the engineer, and in case of dispute as to what work, labour, material, tools and plant are or are not so included, the decision of the engineer shall be final and conclusive. Paragraph 24. And Her Majesty in consideration of the premises, hereby covenants with the contractor that he will be paid for and in respect of the works hereby contracted for and in the manner set out in the next clause hereof, the several prices or sums following: * * * * * earth excavation, per cubic yard, 20 cents, earth in water-tight embankments, per cubic yard, 15 cents. Paragraph 25. Cash payments equal to about ninety per cent of the value of the work done, approximately made up from returns of progress measurements and computed at the prices agreed upon or determined under the provisions of this contract will be made to the contractor monthly on the written certificate of the engineer that the work for or on account of which the certificate is granted has been duly executed to his satisfaction, and stating the value of such work computed as above-mentioned and upon approval of such certificate by the Minister for the time being; and the said certificate and such approval thereof shall be a condition precedent to the right of the contractor to be paid the said ninety per cent or any part thereof. The remaining ten per cent shall be retained, &c., &c. (unimportant on the present appeal). As the work of construction progressed, the engineer gave to the contractor monthly progress estimates which at first were for earth in excavation only as no embankment had as yet been commenced, but in the month of August, 1893, he gave a progress estimate for July, 1893. in which he estimated for earth excavation at 20 cents per cubic yard 85,300 cubic yards and for earth in water tight embankments at 15 cents per cubic yard, 20,000 cubic yards. In September, 1893, he in like manner gave an estimate for the month of August, for earth excavation 121,700 cubic yards, and for earth in water tight embankments 30,000 cubic yards, and in like manner in October, 1893, he gave an estimate for September for earth excavation 169,800 cubic yards, and for earth in water tight embankments, 43,000 cubic yards, and in November, 1893, he gave an estimate for the month of October, for earth excavation 230,000 cubic yards, and for earth in water tight embankments 67,500 cubic yards. Payments were made to the contractor in accordance with all these progress estimates. In the month of November, 1893, the contractor made a complaint to the Minister of Railways and Canals as to the manner in which his contract was being dealt with by the engineer, in a long letter dated 16th November, 1893, which is before us, contained in eight pages of the printed case. It is unnecessary to enter into the lengthy argument offered by the contractor in support of his complaint; it is sufficient to say that it related to three specific items, namely: First. The interpretation of the specifications as to whether the 15 cents per cubic yard should be paid for the whole of the embankments formed from the excavation. Second. The blue clay on sections 6 and 7, &c. &c. Third. The difficulty and expense of bringing building for concrete to the site of the proposed lock, &c. It is only with the first that we have to deal, and as to this it is sufficient to say that the whole of the contractor's argument in relation to it was to the effect that the contract and specifications afforded no warrant whatever for the action of the engineer in estimating for part only of the earth put into the embankments as to be paid for at 15 cents per cubic yard; and that by his contract and the specifications he was entitled to be paid 15 cents per cubic yard for every cubic yard of material put into the embankments in addition to the 20 cents per cubic yard on earth measured in excavation, and he added that even if the work should be done under the most favourable conditions these combined sums made but a moderate price for the work for which he claimed them, and he prayed that this his interpretation of his contract should be accepted as final and conclusive as to his right to the 15 cents for every cubic yard in embankments, or that he should be released from his contract upon certain terms proposed in his letter. The Minister of Railways and Canals submitted this letter to the late Sir John Thompson, then Minister of Justice, for his opinion, and his opinion was, by a letter from the Department of Justice dated 28th February, 1894, communicated to the Minister of Railways and Canals, which in short substance is that the specifications do not admit of the construction contended for by the contractor; which opinion was communicated to the contractor in a letter from the Department of Railways and Canals, wherein the contractor was informed that in view of such opinion the Department must decline to entertain his claim. In the meantime, while this complaint of the contractor was before the Minister of Justice for his opinion, and subsequently to that opinion having been given, the engineer continued to give to the contractor monthly progress estimates distinguishing as before between earth in excavation at 20 cents per cubic yard, and earth in water tight embankments, at 15 cents per cubic yard, until the 13th December, 1895, when the engineer gave to the contractor a progress estimate numbered 23 for the month of November, 1895, containing among other things as follows: Earth excavation—1,103,713 cb. yds. at 20c... $220,742 60 Earth in water tight embankments......450,733 cb. yds. at 15c... 67,609 50 These two sums together make............... $288,352 10 In the month of March, 1895, however, the contractor had renewed his complaint to the Minister of Railways and Canals in a letter dated March 22nd, 1895. This complaint was referred to the engineer, who after hearing the contractor upon the subject made his report to the Minister of Railways and Canals upon the matter adversely to the contractor's claim. The letter of the 22nd March together with various supplemental arguments supplied by the contractor between that date and the 10th December, 1895, was also submitted to Sir Charles Hibbert Tupper, who had succeeded the late Sir John Thompson as Minister of Justice, for his opinion. The contention of the contractor as laid before Sir Charles Hibbert Tupper is substantially the same as that which had been laid before the late Sir John Thompson, although expressed in a more elaborate argument which is contained in thirty pages of the printed case laid before us. This elaborate argument, however, resolves itself simply into the contention that the question submitted is wholly one of law involving simply the legal construction of the contract, with which the engineer has nothing to do but to conform to it, and that such legal construction is: That it is apparent from the drawings upon which the contractor tendered for the work; that what was contemplated was one continuous embankment along each side of the canal to be constructed; that the position of the embankments indicated plainly that they must be made water tight, and that the contract gave to the contractor 15 cents for every cubic yard of earth put into these embankments within the dimensions assigned to them by the specifications; that the contract does not contemplate any such thing as a portion of the embankments respectively being made watertight, or authorise the engineer to estimate for a portion of the embankments as being water tight for the purpose of thereby limiting the allowance of 15 cents per yard to such part only; and that all that the contract excludes from the allowance of 15 cents per cubic yard is such part of the embankments, if there should be any, construced by the contractor outside of the limits of the embankments as designed by the engineer and in excess of the dimensions assigned to them by him in the specifications and drawings relating thereto. In this is contained the whole substance of the elaborate argument presented on behalf of the contractor. We have not the reasons for the conclusion at which the Minister of Justice arrived, but of his conclusion we are informed by a letter dated the 15th January, 1896, addressed by the Deputy Minister of Justice to the Secretary of the Department of Railways and Canals which is as follows: Sir, Referring to your letter of the 4th October last, enclosing additional correspondence and the report of your Chief Engineer with regard to Contractor Goodwin's claim as to payment for the construction of water tight embankments on the Soulanges Canal, I have the honour to state that Sir Charles Hibbert Tupper while Minister of Justice, gave the matter very careful consideration and heard Mr. Goodwin in support of his claim. The Minister came to the conclusion that the claim was one which should be entertained by your Department, but he resigned his office before that advice could be communicated to you. He desired me, however, to inform you that he had reached the conclusion which I have stated. The question now arises: Which of those opinions should prevail? If that of the late Sir John Thompson, which by the letter from the Department of Justice, dated the 28th November, 1894, of which only the result is given above, appears to have been identical with that of the engineer in accordance with which all his monthly progress estimates up to and including that of the 13th December, 1895, for the month of November of that year were given, then it is manifest that the matter was one which by the contract was submitted to the final judgment of the engineer whose decision has been adverse to the claimant. The question arises before us in this manner: The claimant in his statement of claim filed in the Exchequer Court under the provisions of section 23 of ch. 16 of 50 & 51 Vict., rests his claim upon what he contends is a certificate of the engineer, dated the 28th February, 1896, given in accordance, as he alleges, with the provisions of the contract in that behalf. The respondent in the statement of defence sets out the material part of the contract and specifications as already given above, and in short substance and effect, insists that the document dated the 28th February, 1896, and relied upon by the claimant was not given, nor does it upon its face purport to have been given, as expressing the judgment or decision of the engineer as contemplated by the contract, but was given as shewn upon its face in deference to the opinion given by the Minister of Justice, Sir Charles Hibbert Tupper, as to the true construction of the contract, and did not express the judgment of the engineer, whose judgment and decision in the matter is contained in the certificate given by him dated the 13th December, 1895, which alone, as is contended, is binding, and that the claimant had received the amount so certified and that therefore his present claim should be dismissed. To this defence the claimant filed a replication which is in substance and effect a renewal of his contention and the argument in support thereof submitted to the respective Ministers of Justice as already mentioned, and he insists that the certificate of the 13th December, 1895, was erroneous, inasmuch as it reported only 450,733 cubic yards as for earth in water tight embankments, and that the certificate of the 28th February, 1896, was given by the engineer to correct the error in his former certificate by giving credit to the claimant for 993,340 cubic yards as earth in water tight embankments instead of 450,733 cubic yards, as had been erroneously certified in the certificate of December 13th, 1895. The first point thus raised is whether the certificate of the 13th December, 1895, was erroneous as alleged, and this is precisely the question which had been submitted to the respective Ministers of Justice for their opinion, namely: Does the contract entitle the claimant to be paid 15 cents for every cubic yard of material put into the embankments constructed under the contract, or only for the earth put into such portions of those embankments as were laid out by the engineer for the purpose of being made, and as were required by him to be made, watertight and as should be certified by him as having been so made? Now it cannot be disputed that as insisted by the claimant in his argument presented to the Ministers of Justice and urged before us on this appeal, that the drawings upon which the claimant made his tender, clearly shew that the embankments proposed to be constructed were two, namely, one continuous embankment (with which as extending from station 180 to station 460 on each side of the canal, proposed to be excavated, we alone have to deal); but the specifications upon which the claimant tendered also very clearly shew that for the earth to be deposited in a portion only of these embankments was the contractor to received sum per cubic yard to be agreed upon, and that for the earth deposited in all the residue of the embankments he was to be paid per cubic yard measured excavation. The 11th section of the specifications which provides for the construction of water tight banks can have relation to nothing else than to certain portions of these embankments on each side of the canal. It is in these embankments that the water tight banks are to be made when directed by the engineer, and the mode of constructing these water-tight banks (as they are called) is specially described thus: The top soil must be removed for such width and depth as may be considered to be necessary to form the embankment seats. These words "embankment seats here used, plainly mean the seats of the portions to be made water-tight, and the material taken therefrom, that is, from the seat of the water tight portions, is to be removed from such seats and deposited where pointed out by the engineer, and wherever placed is to be paid for as earth measured in excavation only. From this direction it is obvious that the material so removed is to be deposited outside of the "water tight banks," as they are called, which are to be constructed in the embankments. Then the seats themselves from which such material shall be removed shall be roughed with a plough so as to make good bond with the first layer of earth forming the base of the embankment. This layer of earth plainly means that one first laid on the part so prepared by the plough. That all this applies to the portions only of the embankments which portions are designated in the specification "water tight banks," is very apparent from the whole tenor of the 11th specification, which goes on to provide that when the bank seats (already spoken of), and being to be constructed as the seats of water tight banks in the embankments are properly prepared, inspected and approved, and not till then, the bank shall be carried up (on the bank seats so prepared, inspected and approved) in layers of selected material of about eight inches in thickness, well spread, the lumps broken, watered, trodden down, or otherwise compacted, and carefully shaped to the heights and slopes given by the engineer, only such portions of the embankments as shall be laid out by the engineer and made up in strict accordance with the foregoing specifications will be paid for as "earth in water-tight banks." This clause in plain language limits the right of the contractor to 15 cents per cubic yard to the earth put into those portions of the embankments which shall be laid out and so prepared as and for the water-tight banks in the embankments. Then by the evidence we see that the portions so intended by the engineer to be made water tight were laid out by him and plainly indicated by stakes planted in a line at the distance in sections 5, 6, 7, of 112 feet from a line staked to mark the centre line of the prism of the canal, and in section 4 at the distance of 101 feet from such centre line except for the distance of 600 feet where the line was staked at the distance of 112 feet from such centre line. The spaces between these lines on either side of the canal and the southern and northern limit respectively of the prism of the canal were so laid out by the engineer as the portions of the embankments required to be made water tight, and were prepared with the plough for that purpose as directed by the specifications, and the material removed from such portions was as directed by the specifications removed by the claimant and placed by him by direction of the engineer outside of the portion so staked for the purpose of being made water tight, but within the base of the embankments, the outside limit of which was marked at such distance from the stakes planted to indicate the limit of the water tight portions on one side of the canal as would enable the top of the embankment to be fifty feet in width and on the other side thirty feet only. This disposition of the material so removed from the base or seats of the portions intended to be made water-tight plainly indicated that the part of the embankments in which such material was deposited, was not within the parts designated by the specifications as being required to be made watertight, and while the contract and specifications expressly provide that the contractor shall receive J 5 cents per cubic yard only for such portions of the embankment as should be laid out by the engineer for the purpose of being made water-tight, the contractor by the adoption of the construction put upon the contract by Sir Charles Hibbert Tupper would receive 15 cents per yard for the earth removed from the seats prepared as the base of the water-tight portions as directed by the engineer and for which by an express provision in the contract and specifications he is to be paid only, where-ever it should be placed, as earth measured in excavation, and by the evidence it appears that there is on a rough calculation 100,000 cubic yards so removed amounting to $15,000. It was argued further that the portions required by the engineer to be made watertight, being so made the whole of the embankments were made water-tight; but the contract is very express that the 15 cents per cubic yard is to be paid only for earth in "portions of the embankments" and there cannot be any doubt that such portions are those only which were so as aforesaid required by direction of the engineer to be made water-tight and staked out by him for that purpose. This appears to be the plain construction of the contract and section 34 provides that: No implied contract of any kind whatsoever by or on behalf of Her Majesty shall arise or be implied from anything in this contract contained. I can therefore come to no other conclusion than that the opinion of the late Sir John Thompson was correct and that the contractor is by his contract entitled to the 15 cents per cubic yard, only for the earth placed in the portions of the embankments so as aforesaid staked out by the engineer for the purpose of being made water-tight, and prepared for that purpose as prescribed by the specifications. It was objected in argument that there was no slope given for the rear line of these portions, and that there was a variance in the mode adopted by the sub-engineers for the measurement of the earth in these portions in section 4 from that adopted in sections 5, 6 and 7, but as these portions were laid out as being well within the area of the whole of the respective embankments there could be no such rear slope. In such case the rear line of the portions laid out to be made water-tight would naturally seem to be a line drawn perpendicularly from the rear line of the base of such intended water-tight portions to the top of the embankments, and as to any variance in the mode of measuring the earth in such portions, hitherto there has been no controversy between the contracting parties upon that point; if any should arise the engineer is not only competent to correct any error if such there be, but is by the contract made final judge upon such a question. Neither of these objections, however, have any weight whatever upon the question raised by this appeal, which is simply as to the construction of the contract, namely whether it gives to the contractor 15 cents per cubic yard for all the earth in both of the embankments, the area of one of which is two-fifths larger than the area of the other, or only for the earth placed in the portions staked out by the engineer for the purpose of being made water tight, the areas of which in both embankments are equal. It was further contended before us that whether the opinion of Sir Charles Hibbert Tupper was right or wrong mattered not, that is to say that whether the contract according to the true construction of it did or did not entitle the contractor to the 15 cents per yard for all the earth in the embankments as maintained by that opinion mattered not, for that the document upon which the claimant relied as the certificate of the engineer given under the provisions of the contract having been approved of by the Minister of Railways and Canals, the right of the claimant to the amount claimed was now incontrovertible. I do not think we need upon this appeal decide whether, if an engineer should ever intentionally or in error, give a certificate for an amount in violation of the terms of a contract, such amount could ever be recovered in an action founded upon the contract. In the present case the certificate no. 23, the amount certified by which was paid to the contractor, equally required the approval of the Minister before it could have been paid, and the difference between that certificate and the one numbered 24 required explanation. The statement of defence filed in the present case opened an inquiry into the whole of the circumstances under which that certificate was given, and distinctly disputes the intent (as construed by the claimant) and the validity of that document. The claimant by his replication rests his support of that document upon the allegation that it was given by the engineer to correct an error alleged to have existed in no. 23, and has thus raised the specific issue: Did such error exist in no. 23? Now, that alleged error consisted in this, that the engineer only estimated for the earth placed in the portions of the embankments laid out by him for the purpose of being made water tight, as the earth for which the 15 cents per yard was to be paid instead of certifying (as is contended by the claimant he should have certified) for all of the earth in the embankments as entitled to be paid for at such price, and the correction relied upon by the claimant is the statement which is made in no. 24 of the amount which would be due to the claimant assuming the opinion of Sir Charles Hibbert Tupper to be correct as the claimant contends that it is. If, however, that opinion cannot be sustained, there was no error in no. 23 to be corrected, and so the issue raised by the claimant in support and justification of certificate no. 24 must fail and that certificate must therefore also fail. Now the evidence plainly shews that certificate no. 24 does not represent and was not given for the purpose of representing the engineer's own opinion as to what the claimant was entitled to under his contract, which opinion is still as is stated in no. 23, but merely to show the quantity of all the earth in the embankments and the amount which would be due to the claimant if in accordance with the opinion of Sir Charles Hibbert Tupper he was upon the true construction of his contract entitled to be paid 15 cents for every cubic yard of earth in the embankments instead of as had been estimated by the engineer only for the earth placed in those portions of the embankments which had in point of fact been laid out and prepared for that purpose and required by him to be made watertight. The certificate no. 24 moreover shows upon its face that it is intended to be qualified by reference to other specified documents which must be referred to, and which being referred to, show that the certificate no. 24 was given for no other purpose than as just stated. Under these circumstances it appears abundantly clear that whatever force might be given to the certificate no 24 if the opinion of Sir Charles Hibbert Tupper as to the true construction of the contract could be supported, as that opinion cannot be maintained no. 24 cannot have no force to invalidate certificate no. 23 which is in accord with the true construction of the contract, nor can its approval by the Minister of Railways and Canals which must be intended also to be based upon the opinion of the Minister of Justice and must therefore fail with it, give it any force whatever. For the above reason I must say that I am of opinion that this appeal should be dismissed with costs. SEDGEWICK J.—Prior to the month of May, 1893, the Government of Canada had adopted the policy of so improving the navigation of the River St. Lawrence that there should be continuously fourteen feet in depth of navigable water between the great fresh water lakes of the Dominion and the Gulf of St. Lawrence. As a part of this scheme the construction of the Soulanges Canal, a canal on the north side of the River St. Lawrence to be used in substitution for the Beauharnois Canal, a canal on the south side of the river, was undertaken. The proposed work was divided into sections, and on the 9th of May, 1893, a contract was entered into between the Crown and the present appellant for the construction of four of these sections. The clauses in the contract and specification especially affecting the questions involved in this appeal are as follows: Clauses of contract: 3. * * * The said works to be constructed of the best materials of their several kinds, and finished in the best and most workman like manner, in the manner required by and in strict conformity with the said specifications and the drawings relating thereto, and the working or detail drawings which may from time to time be furnished (which said specifications and drawings are hereby declared to be part of this contract), and to the complete satisfaction of the chief engineer for the time being having control over the work. 8. That the engineer shall be the sole judge of the work and material in respect of both quantity and quality, and his decision on all questions in dispute with regard to work or material, shall be final, and no works or extra or additional works or changes shall be deemed to have been executed, nor shall the contractor be entitled to payment for the same, unless the same shall have been executed to the satisfaction of the engineer, as evidenced by his certificate in writing, which certificate shall be a condition precedent to the right of the contractor to be paid therefor. 24. And Her Majesty; in consideration of the premises, hereby covenants with the contractor, that he will be paid for and in respect of the works hereby contracted for, and in the manner set out in the next clause hereof, the several prices or sums following, viz: No. of Items. Description of Items. Rate. 8 cts. * * * * * * * * * * * 4 Earth excavation, §§ 5, 6, 7, 9, 11, 15, 19, 21, 63, 64, 70, 76........................ Pere. yd. 20 5 Earth in water-tight embankments, §§ 5, 7, 11.. do 15 * * * * * * * * * N.B.—All materials to be measured in the work, and all cement used in the works of sections Nos. 4, 5, 6 and 7 will be furnished by the Department of Railways and Canals on the conditions set forth in section No. 89 of the specification. The figures placed after the various items in the above form of tender refer to the sections of the specification wherein they are described. 25. Cash payments equal to about ninety per cent of the value of the work done, approximately made up from returns of progress measurements and computed at the prices agreed upon or determined under the provisions of this contract, will be made to the contractor monthly on the written certificate of the engineer that the work for, or on account of, which the certificate is granted has been duly executed to his satisfaction and stating the value of such work computed as above mentioned, and upon approval of such certificate by the Minister for the time being, and the said certificate and such approval thereof shall be a condition precedent to the right of the contractor to be paid the said ninety per cent or any part thereof. The remaining ten per cent shall be retained till the final completion of the whole work to the satisfaction of the Chief Engineer for the time being, having control over the work, and within two months after such completion the remaining ten per cent will be paid. And it is hereby declared that the written certificate of the said engineer, certifying to the final completion of said works to his satisfaction shall be a condition precedent to the right of the contractor to receive or to be paid the said remaining ten per cent or any part thereof. 26. It is intended that every allowance to which the contractor i fairly entitled, will be embraced in the engineer's monthly certificates; but should the contractor at any time have claims of any description which he considers are not included in the progress certificates, it will be necessary for him to make and repeat such claims in writing to the engineer within thirty days after the date of the dispatch to the contractor of each and every certificate in which he alleges such claims have been omitted. 27. The contractor in presenting claims of the kind referred to in the last clause must accompany them with satisfactory evidence of their accuracy, and the reason why he thinks they should be allowed. Unless such claims are thus made during the progress of the work, within thirty days, as in the preceding clause, and repeated, in writing, every month, until finally adjusted or rejected, it must be clearly understood that they shall be for ever shut out, and the contractor shall have no claim on Her Majesty in respect thereof. 33. It is hereby agreed, that all matters of difference arising between the parties hereto upon any matter connected with or arising out of this contract, the decision whereof is not hereby especially given to the engineer,—shall be referred to the Exchequer Court of Canada and the award of such court shall be final and conclusive. Clauses of the Specification:— 3. Dimensions of canal. The canal will be generally 300 feet wide at bottom with slopes in excavation of 2 to 1 throughout. The embankments forming the sides shall be of such top widths as will be directed, and be carried up to the height of 161 feet above datum on the summit level. Below lock no. 5, the top bank shall be 143 feet above datum or such other height as may be directed. 5. Classification of materials. There will only be two classes of excavation recognized or paid for, namely, "earth" or "solid lock." 6. Earthwork. The price tendered for "earth excavation" must cover the entire cost of excavating, hauling and forming into embankments, all kinds of materials found in the pits for lock, weirs or other structures, and in the prism of the canal, raceways, side ponds or wherever excavation is necessary, except solid stratified quarry rock. The price shall include the cost of removing boulders of all sizes, indurated clay, hard pan, &c., for none of which will any extra or additional allowance be made. It is also distinctly understood and agreed upon that no excavation shall be paid for below the exact grade line of the bottom of the canal works or ontsid e the line of the slopes, unless the same be executed under the written instructions of the engineer. 7. No allowance or haul. No allowance whatever beyond the prices tendered for excavation will be made for haul. The surplus material arising from the prism, &c., on section no. 7 shall, after making up the banks on that section, be carried forward to widen the embankments of sections to the eastward; and the surplus on section no. 6 shall be dealt with in the same manner, so that all the excavation arising from the sections embraced in this contract west of Lock no. 5, will be disposed of in making the embankments on each side of the summit level between stations 180 and 460, filling around the various structures, &c. This distribution of material to be made as will be directed by the Engineer without entitling the contractor to any extra allowance whatever. The attention of parties tendering is specially drawn to this section of the specification. 11. Watertight banks. Wherever the surface level of the water in the canal higher than the ground alongside, water tight banks shall be made when so directed. In these cases the top soil must be removed for such width and depth as may be considered necessary to form the embankment seats. The material arising from this mucking to be deposited where pointed out. It will be paid for as ordinary earth excavation. The seats shall also be well roughed up with a plough so as to make good bond with the first layer of earth forming the base of the embankment. Puddle walls or cut offs to be made where required—the puddle to be prepared and laid as specified hereafter. When the bank seats are properly prepared, inspected and approved—and not till then—the bank shall be carried up in layers, of selected material, of about eight inches in thickness, well spread—the lumps broken—watered—trodden down or otherwise compacted and carefully shaped to the heights and slopes given by the engineer. Only such portions of the embankments as shall be laid out by the engineer, and made up in strict accordance with the foregoing specification, will be paid for as "earth in water-tight banks." The plan shown to the contractor at the time of the execution of the contract, and which formed part of it, so far as the question involved in this case is concerned, is as follows:[33] This plan shows the surface of the ground before any work was done, the intended bottom of the canal, the water-line when completed, and the embankments on each side, the northern embankment having a top fifty feet wide and the southern embankment thirty feet. The work, for payment of which the appellant has made the claim in controversy upon this appeal, has connection solely with the embankments on each side of the canal, and the only question is as to the amount which he is entitled to receive for the construction of these embankments. The work in question was to be done at places where the surface level of the water in the canal, when completed, would be higher than the ground alongside, and section 11 of the specification provided that in that particular case water-tight banks should be constructed on each side, but that before commencing these banks the top soil should be removed for such width and depth as might be considered necessary to form the embankment seats, the cost of removing this "muck" as it was termed, to be paid for as ordinary earth excavation, at 20 cents per cubic yard; (clause 24 of the contract); and that the ground where this mucking was taken from should be well roughed up with a plough so as to make good bond with the first layer of earth forming the base of the embankment. Further, that when the bank seats were properly prepared, inspected and approved—and not till then—the bank should be carried up in layers of selected material of about eight inches in thickness, well spread—the lumps broken, watered, trodden down or otherwise compacted and carefully shaped to the heights and slopes given by the engineer, and that only such portions of the embankments as should be laid out by the engineer and made up in strict accordance with the specification would be paid for as "earth in water-tight banks," at 15 cents per cubic yard. (Clause 24 of the contract). It was further understood that the material of which the water-tight embankments on each side of the canal were to be made was to be taken from the excavation of the prism, if such material were suitable for the purpose, so that in effect it was provided that the contractor was to receive 20 cents per cubic yard for all earth excavation, and that in so far as this earth excavation was suitable for, and was used in, the construction of the water-tight embankments in pursuance of the terms of the specification, 15 cents per cubic yard in addition was to be paid. When the contractor entered upon his work the engineers of the government had laid out the line of the canal, indicating by stakes its central thread and the northern limit of the north embankment and the southern limit of the south embankment; indicating, too, that portion of the bed from which the top soil had to be removed in order to form the embankment seats; but there was nothing shown either upon the ground or upon any specification or plan, or by any verbal or other direction given to the contractor, that the position, height and width of the embankments themselves were to be other than indicated on the plan forming part of the contract and upon the faith of which the work was executed by the contractor. The embankments were built substantially according to the plan. The removal of the mucking or top soil to form the embankment seats was done, and the material deposited as provided by section 11 of the specification.. Selected material of the character therein specified, taken from the prism of the canal, was, under the direction and with the approval of the Government engineers, and substantially in the manner specified in the clause last mentioned, used in the construction of the embankments and they were eventually completed as originally intended and as described in the original specifications and plans. There has never been any question or controversy between the Crown and the contractor, or between the Government engineers and the contractor, as to the work upon the embankments or the material of which they were composed, whether in respect of quantity or quality. All parties are satisfied that, so far as these matters are concerned, the appellant has fulfilled in every respect his contractual obligations; but it happened that after the completion of this particular work a dispute arose as to whether the contractor was entitled to be paid for the whole of the selected material used in the construction of the embankments, or only for a portion thereof. Sketch "D" in evidence at the trial clearly indicates the contention of the Government engineers. A line is drawn between "G" and "P" in each embankment, the bottom of the line indicating that portion of the bottom of its bed to which from the prism of the canal the top soil was to be removed and the seats prepared so as to make a good connection with the first layer of earth forming the base of the embankment, and the Government engineers claim that they have a right to draw from that point to the top of the embankment—each engineer upon the different sections having a different angle—and to say that only that portion of the embankments marked as "F" is a "water-tight embankment" within the meaning of the specification, the remaining portion of the embankments marked as "G" forming no part of such embankments, and that the contractor is not entitled to payment for that portion of them. As I have stated, there is no dispute as to the amount of material either in "F" or "G," whether as regards quantity or quality. The lines drawn as in the sketch through the embankments are purely imaginary ones. There is no difference in any respect between the work or material in "F" and in "G" (except as to the foundations), nor was there anything communicated to the contractor nor any indication given to him, but that the whole of the embankments as originally planned and as eventually constructed were to be otherwise than indicated in the plan forming part of the original contract. It was admitted at the argument, and the evidence showed, that had the embankments been built in the shape indicated in "F" they would have been altogether insufficient for the purpose; that they might possibly last for a season or so, but that they could not be considered as permanent or as properly constructed water tight embankments. Notwithstanding this, however, the engineers insisted that they had a right of their own motion, without reference to the contractor, to divide by an imaginary line the completed embankment, and to say that only a small portion of it (I have not been able to ascertain what particular portion or the dimensions of that portion) should be paid for by the Crown. Upon the completion of the embankments a progress estimate, purporting to be under section 25 of the contract, was made by the Chief Engineer of Government Railways, based upon this view of the engineers upon the ground, and the contractor was allowed for earth in water-tight embankments 450,733 cubic yards, amounting in price at 15 cents per cubic yard to $67,609.95. As a matter of fact the quantity of earth in those embankments, being selected material used in construction, was 1,103,713 cubic yards, the price for which, after deducting 10 per cent for shrinkage, at 15 cents per cubic yard, would be $149,001, making a difference in price of the amount claimed by the appellant on this appeal (less the 10 per cent deduction). The date of this progress estimate was 13th December, 1895. It appears that before this progress estimate or certificate was given by the chief engineer there had, as was natural, been differences and arguments between the contractor and Mr. Schreiber, who was Chief Engineer and Deputy Minister of Railways and Canals as well, as to whether the basis upon which the measurements for the material composing the water-tight embankments was correct in principle under the terms of the contract. The question was referred to the then Minister of Justice by the Department of Railways and Canals, and he gave an opinion based upon the statements then submitted to him as facts, that the contention of the engineers was the sound one, and it was acting upon that opinion as well as upon his own view that the chief engineer gave the limited certificate to which I have referred, of the 13th December, 1895. The contractor was dissatisfied with this action on the part of the chief engineer.. He prepared a new statement of his case, presenting additional evidence and urging its re-consideration. This new statement, together with all the papers in connection with the case, was again referred by the Department of Railways and Canals for opinion to the then Minister of Justice (Sir John Thompson having in the meantime died). In replying to this reference the law officers of the Crown advised the Department of Railways and Canals, in effect, that the appellant's contention was correct, and that his claim should be considered by the chief engineer as a legal one under the terms of the contract. Influenced by that opinion the Minister of Railways and Canals authorized the issue of a progress estimate in order to entitle the appellant to payment of his money, and thereupon the certificate in question upon this appeal was issued That certificate is as follows: FORM No. 7. TO THE ENGINEER MAKING THE ESTIMATE, INSERT AT 1. Progress or final. 2. Date up to which this estimate is made. 3. Name of contractor. 4. Contract or extra. 5. and 7. Number of the letter from the department to the engineer ordering the work to be proceeded with. 6. Name of person to whom this letter is addressed. 8. Date of this letter. 9. Maximum of expenditure authorized by letter. 10. The nature of the work for which the sum is granted. Make an estimate for contract work alone, and a separate one for each order for extra work. The several estimates to be tied together with the summary of the whole at the end. RAILWAYS AND CANALS. ———— No. of Estimate—24. Date of Contract, 9 May, 1893. Name of work—Soulanges Canal, Section Nos. 4, 5, 6, and 7. Name of Contractor—George Goodwin. Number of Contract—11,518, (1) Progress estimate of work done and materials delivered from the beginning of the work to the (2) 30th November, 1895, by (3) George Goodwin, contractor, on (4) work done by letter No. (5)................................. The works, the details of which are given in this estimate, were proceeded with under the order of the Department of Railways and Canals to (6)...................................... No. (7).............................. dated (8)...............189 authorizing an expenditure of(9) $.............................. to (10)................................ No. of Item. Description of Works and Materials. Quantity. Prices Amount. Totals. $ cts. $ cts. $ cts. 1 Clearing and grubbing Acres .................. 8,34 20 00 166 80 2 Fencing 100 L ft. .................. 328 15 00 4,920 00 4 Earth excavation on section C yds. .................. 1,103,713 20 220,742 60 5 Earth in water-tight banks—Excn. as above 1,103,713 " Less 10 per cent shrinkage say 110,373 " [*] 993 340 " 542,607 993,340 0 15 149,001 00 374,830 40 Materials delivered— 0 06 1,440 00 Woven wire for fence L. ft. .................. 24,000 700 00 2,140 00 Posts boards, etc. Bulk sum [*] Classification in accordance with decision of Minister of Justice. See letter of 15 January, 1896. T. M. .................. $700 $376,900 40 Progress and final estimate sheet. [*] Added in red ink. PROGRESS ESTIMATE ÄND CERTIFICATE. Folio 658. RAILWAYS AND CANALS. ————————— No. of Estimate, 24. Summary of the Estimates in favour of George Goodwin, Contractor, for work done and materials delivered up to 30th November, 1895, at Sections Nos. 4, 5, 6 and 7, Soulanges Canal. Authority by Department of Railways, and Canals. Date of Letter. Number of Letter. Name of the person to whom the letter authorizing the expenditure is addressed. Amount Authorized. $ 376,970 cts. 40 On extra work ordered to be proceeded with by letter No.—dated On extra work ordered to be proceeded with by letter No.—dated Less. Amount returned for Pay-lists and accounts ............ Amounts returned for work done under other contracts or for extra work authorized, and not included in present summary .......................... Amount returned under present summary.............. Forming the total amount certified up to date against sum authorized. Less drawback, 10% say...... 37,690 40 $ 339,280 00 (In pencil.) 266,020 00 73,260 00 I hereby certify that the above estimate is correct, that the total value of work performed and materials furnished by Mr. George Goodwin, Contractor, up to 30th November, 1895, is three hundred and seventy-six thousand nine hundred and seventy and 40/100 dollars; the draw-back to be retained thirty-seven thousand, six hundred and 40/100 ninety and dollars; and the net amount due three hundred and thirty-nine thousand, two hundred and eighty dollars, less previous payments. (Sgd.) THOS. MUNRO. Dated COTEAU LANDING, P.Q., [*] Signed by me subject to conditions stated 26th February, 1896. in my letter of 26th Feb., '96. T.M. [*] Total amount certified on this contract $376,970. 40/100 COLLINGWOOD SCHREIBER. [*] Certified as regards item No. 5 in accordance with letter of Deputy Minister of Justice, dated 15th Jan., 1896. Engineer's Audit Office, Ottawa, 27th Feb., 1896. Chief Engineer. Department of Railways and Canals. Examined and checked, G. A. Mothersill. 27-2-96. Progress and final estimate sheet. [*] Added in red ink. This certificate was sent to the office of the Auditor. General, accompanied by the following letter:— Form D. 30. EXHIBIT 5. Application No. 345. DEPARTMENT OF RAILWAYS AND CANALS. 173,260. OTTAWA, February 28th, 1896. To the Auditor-General: Sir,—I have the honour to request the issue of a cheque in favour of George Goodwin, for the sum of seventy-three thousand, two hundred and sixty dollars, being for work done as per Est No. 24 to Nov. 30th, 1895. Secs. 4, 5, 6. 7. Total payments, $339,280. Chargeable to Appropriation; Soulanges Canal Cap. I am, Sir, your obedient servant, COLLINGWOOD SCHREIBER, Deputy Minister. LEONARD SHANNON, Accountant. But for some reason or other not disclosed by the evidence and not known to us, except from proceedings which form no part of the record, the Auditor General refused to issue the cheque, and thus the matter stands. The matters in difference between the contractor and the Department of Railways and Canals was referred by the Minister of that Department to the Exchequer Court of Canada under section 23 of "The Exchequer Court Act." When the case was first heard before that court judgment was ordered to be entered in favour of the claimant, but upon a re-hearing that judgment was reversed and the claim dismissed, the court, however, still being of opinion that on the merits the claimant was entitled to recover, but out of deference to what was supposed to be a decision of this court in the case of Murray v. The Queen[34], the learned judge gave judgment in favour of the Crown; hence the appeal to this court. Only one question has so far been fully argued before us, namely, the question of the validity of the certificate of the 27th February, 1896, but the merits of the case were necessarily involved in that question and were therefore incidentally touched upon, and it was understood at the close of the argument that if we were of opinion that the certificate was good the appeal should be allowed, and that no further argument as to the merits of the claim would be necessary. It was contended at the argument before us that the certificate was bad, first, because it was not in the form prescribed by clause 25 of the contract, inasmuch as it did not specifically state that the work had been done to the satisfaction of the engineer; secondly, that it was bad because there had been a decision by the engineer upon the question in dispute, and that by section 8 of the contract such decision was final and irreversible; and thirdly, that it was bad because the certificate of the engineer was his certificate in form only; that in substance it was the certificate of a "third party," namely, the Minister of Justice, upon whose opinion it was said to have been issued, and that such a certificate was no certificate within the meaning of section 25 of the contract. Upon the first of these points I am of opinion that the certificate sufficiently complied with section 25 of the contract, when taken in connection with the evidence and the circumstances of the case. The clause requires a certificate that the work for or on account of, which the certificate is granted, has been duly executed to the engineer's satisfaction, and that it should state the value of such work computed at the prices agreed upon or determined under the provisions of the contract. The schedule part of the certificate which has been set out states that it is a progress estimate of work done and materials delivered from the beginning of the work up to the 30th November, 1895; and it then states the price, the items, and the different kinds of work done up to that date. The chief engineer's letter to the secretary of his Department, enclosing the estimate, states that he encloses therewith duly certified for payment the estimate in question for work done and materials delivered in connection with the sections in question. The following is a copy of the letter above referred to:— EXHIBIT 4. OFFICE OF THE CHIEF ENGINEER OF RAILWAYS AND CANALS. OTTAWA, 28th February, 1896. Sir,—I enclose herewith duly certified for payment an estimate, in favour of Mr. Geo. Goodwin for work done and materials delivered in connection with sections Nos. 4, 5, 6 and 7 on the Soulanges Canal up to the 30th November, 1895. Gross Estimate, $376,970.40. I am, Sir, Your obedient servant, COLLINGWOOD SCHREIBER, Chief Engineer. Per L. K. JONES. To the Secretary, Department Railways and Canals, Ottawa, Ont.* In these documents constituting the certificate there is, therefore, over the signature of the Chief Engineer the statement that the "estimate is correct," that the amount of money "mentioned is due," and that the estimate has been "duly certified." Having in view these statements it appears to me that it cannot be successfully contended that the certificate does not show that the work thereby certified for had been duly executed to the engineer's satisfaction. If the work was done as he certifies, it must mean—done in accordance with the contract—which means done to his satisfaction. When he said, as he did in the certificate, that the money was due, did it not necessarily mean that the
Source: decisions.scc-csc.ca
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