Boone v. The King

Boone v. The King
Collection
Supreme Court Judgments
Date
1934-04-24
Report
[1934] SCR 457
Judges
Rinfret, Thibaudeau; Lamont, John Henderson; Smith, Robert; Crocket, Oswald Smith; Hughes, Frank Joseph
On appeal from
Canada
Subjects
Contract
Decision Content
Supreme Court of Canada
Boone v. The King, [1934] S.C.R. 457
Date: 1934-04-24.
Frank L. Boone (Suppliant) Appellant;
and
His Majesty The King Respondent.
1933: October 18, 19; 1934: April 24.
Present: Rinfret, Lamont, Smith, Crocket and Hughes jj.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Contract—Construction of ice pier for Crown—Alleged delay of contractor—Work and contractor’s plant, etc., taken over by Crown for completion of work—Claim by contractor for damages—Proposed change in plan of work—Lack of instructions in writing—Alleged conduct of Crown’s engineers as excuse for contractor’s delay—Petition of Right—Parties—Non-joinder of co-contractor.
Appellant and one V. (who was not a party to the action) contracted with the Crown to build an ice pier, and did some of the work. In the foundation work, the contract required excavating the bottom to bed rock by dredging. Dredges chartered by appellant abandoned the work because of difficulties encountered, and appellant complained to the Crown’s District Engineer that the dredging was impossible of performance. The District Engineer changed the plan of the work so as to eliminate the dredging and secure the foundation by other means, and directed appellant to proceed on the plan as changed. The District Engineer and appellant differed in their estimates of the nature of the change made and of the extra cost involved, and appellant asked for written instructions, which were not given. A deadlock ensued and the time within, which, under the contract, the work was to be completed, expired. The Crown’s Chief Engineer gave notice to the contractors, in pursuance of a clause in the contract, to put an end to their “default and delay” and that, if within a certain time satisfactory progress was not made, the Crown would take the work out of their hands and complete it; and, the work not being proceeded with, the Crown, on further notice, and purporting to act under said clause, took over the work and appellant’s materials and plant and proceeded to complete the work according to the plan as changed. Appellant sued (on petition of right) for damages.
Held, reversing judgment of Maclean J., President of the Exchequer Court, [1933] Ex. C.R. 33, Lamont and Hughes JJ. dissenting, that, upon all the facts and circumstances and the proper construction of the contract, the appellant was entitled to succeed.
Per curiam: The nature of the change made in the plan was such as required, under the contract, written instructions from the Chief Engineer; also, in the absence thereof, the Chief Engineer’s said notice requiring satisfactory progress to be made, must be taken to mean to proceed under the original plan. Per Rinfret and Crocket JJ.: Previous to the change of plan there was no delay of which the Crown could now complain; and the delay after the change of plan was directly attributable to the Crown itself, because, while its District Engineer (a recognized departmental representative and the real controlling spirit in all that pertained to the contract and its execution throughout) had directed to proceed on the new plan, it failed to give written instructions, in accordance with the contract, to do so; therefore the taking over by the Crown of the work and materials and plant was not justified (Roberts v. Bury Improvement Commissioners, 39 L.J.C.P. 129, Lodder v. Slowey, 73 L.J. P.C. 82, cited). Further, the Crown did not bring itself within the clause under which it purported to act, as that clause, fairly construed, contemplated that the contractors should be made aware of the specific default or delay with which the engineer was dissatisfied, and, to justify under it, the Crown must show that the contractors were guilty of some default or delay in diligently executing some part of the contract work to the engineer’s satisfaction (the intention being that the engineer in the exercise of his judgment should act justly and reasonably); and the facts failed to discharge that onus and, further, absolutely negatived justification of the Crown’s act. The case should be sent back to the Exchequer Court for assessment of damages, with right to appellant to join V. in the petition (though quaere whether this was necessary, in view of the terms of the partnership agreement between appellant and V. Atkinson v. Laing, 171 E.R. 901, referred to).
Per Smith J.: There was actually little delay on the contractors’ part that counted, except what was caused by the miscalculation that it was practicable to do the dredging in the manner attempted. This was a miscalculation of the engineers that was relied on by the contractors, though they were not warranted in doing so by the terms of the contract. But, when the District Engineer directed the change of plan, the contractors were justified in insisting upon approval thereof by the Chief Engineer in writing before proceeding further. Although the notice by the Chief Engineer to proceed could mean only, in the absence of written instructions to the contrary, to proceed on the original plan, yet, as the Crown subsequently proceeded on the changed plan, the latter was the one clearly contemplated, and there was never any intention of resorting to the original plan. The contractors were never in default as to the changes, and appellant should ‘ succeed on his claim. The case should be sent back for assessment of damages in the manner directed by Rinfret and Crocket JJ.
Per Lamont J. (dissenting): There was unreasonable delay by the contractors in engaging dredges. It was not established that the dredging was impossible of performance; on the evidence, it could have been done, though probably at considerable expense. Moreover, in view of provisions of the contract, appellant was not entitled to recover from the Crown his expense in connection with the attempt to operate the dredges on the footing of impossibility of performance. The contractors, with the contract before them, must be held to have known of the lack of authority to make the proposed change in the plan of the work in the absence of written instructions from the Chief Engineer. The trouble arose by reason of their failure to examine the bottom, though a certificate in their tender indicated they had done so. They should have known beforehand whether dredges such as were employed were sufficient for the work. The Crown could not be mulcted in damages for alterations made by an official who had no authority to make them. The judgment of the Exchequer Court should be affirmed, with the variation suggested by Hughes J.
Per Hughes J. (dissenting): The District Engineer had no power to make the proposed alteration in the work, and, in the absence of written instructions from the Chief Engineer, the contract, plan, and specifications remained as they were originally. The contractors must have been aware of said lack of power in the District Engineer. The contractors were in default on the date limit set by the contract for completion; and the difficulty in dredging was not a valid excuse for such default (Thorn v. The Mayor and Commonalty of London, 1 App. Cas. 120, at 132; Connolly v. City of Saint John, 35 Can. SCR. 186, referred to). Under the terms of the contract the Crown was entitled to take over and use appellant’s materials and plant to complete the work, even with changes in plan. The appeal should be dismissed, but the judgment should be without prejudice to any proceedings in proper form which appellant might, if so advised, subsequently take against the Crown for the return of, or damages in respect of, any materials or plant not used up by the Crown in accordance with the contract and improperly withheld.
APPEAL by the suppliant from the judgment of Maclean J., President of the Exchequer Court of Canada[1], holding that he was not entitled to the relief sought by his Petition of Right herein, in which he claimed damages from the Crown in respect of a contract for the construction of an ice pier at Barrington Passage, Nova Scotia, the Crown having, by reason of alleged default and delay in the work, taken the work out of the contractons’ hands and taken possession of appellant’s materials and plant for purposes of completion of the work. The material facts of the case are sufficiently stated in the judgments now reported. The appeal was allowed with costs and the judgment of the Exchequer Court was set aside and the case sent back to that court for the assessment of damages, with a reservation of the right of the suppliant, if deemed advisable, to join in the Petition one Voye, who had, with the suppliant, been a party to the said contract. Costs in the Exchequer Court were left in the discretion of that court. Lamont and Hughes JJ. dissented.
P. J. Hughes K.C. for the appellant.
A. N. Carter for the respondent.
The judgment of Rinfret and Crocket JJ. was delivered by
Crocket J.—I find it impossible upon the evidence to avoid the conclusion that the real reason for the action of the Department of Public Works in terminating this contract and confiscating the contractors’ material, plant and equipment was the impossible situation in which the contractors were placed by the failure of Locke, the supervising resident engineer, or the Chief Engineer himself to provide the necessary written confirmation of the radical change which the former had ordered in August, 1929, in the contract plans and specifications regarding the construction of the foundation for the pier, and not any default or delay on the part of the contractors before that time, as the Department is now contending.
Locke admitted that on August 13, 1929, after the powerful dredge Leconsfield had tried unsuccessfully to do the required dredging for the foundation of the pier, following the failure of the dredge J. A. Gregory, he told Boone that it was not feasible to excavate by a dredge to the rock, as required by the contract specification, and that he would make a change in the plans. He admitted that he did make a change in the original plan, for another foundation than that specified in the contract, which it was not denied affected not only the foundation itself but necessitated the reduction in the height of the crib, which the contractor at that time had built on the shore, all ready to float and place in position on the site as soon as the foundation was prepared. He admitted that he delivered a copy of the changed plan to the contractor and another to Mr. McKay, the inspector, and that he notified Mr. Allison, an engineer also employed in his office and to whom much of the supervision of this contract work was entrusted. On August 28 he telegraphed Boone to start the bag concrete foundation on the changed plan. Boone wrote Locke the following day acknowledging this telegram and requesting, as he had previously personally done, to have the instructions concerning the proposed changes made in writing before commencing the new work. This letter Locke did not acknowledge and in his testimony, under questioning by the respondent’s counsel, admitted that he deliberately waited until the expiration of the contract and then reported to the Chief Engineer of the Department at Ottawa and that the Chief Engineer then notified the appellant’s firm of the expiry of the contract.
The Chief Engineer’s notice appears under date of September 11, 1929, and recites the making of the contract on September 22, 1928, and that by the terms thereof the work should have been satisfactorily executed and completed within twelve months from the date of notification of the acceptance of the firm’s tender, viz., on or before September 1, 1929, and then proceeds:
And Whereas, you have made default and delay in diligently continuing to advance or execute the said works to the satisfaction of the undersigned;
Therefore, the undersigned, in pursuance of Clause 19 of said contract, hereby requires you to put an end to said default and delay, and if within six days from the service hereof on you, satisfactory progress is not made with the said works, His Majesty the King, represented by the Minister of Public Works, intends to avail Himself of the provisions of said Clause and take the said works out of your hands and complete them.
To this notice the appellant’s firm replied on September 18, giving, as my brother Smith states in his judgment, an accurate account of the situation which had developed in connection with the dredging, calling the Chief Engineer’s attention to the fact that he had asked for written instructions covering the changes which had been made by the resident engineer in the plan and stating that as soon as the Department gave them these instructions they were prepared to deal with the work just as expeditiously as they reasonably could and asking that the written instructions be given them without delay. This letter, it seems, was not acknowledged either. On September 25, after receiving a long telegram from Locke, which shews that the Chief Engineer had forwarded to him the contractors’ letter of the 18th, and which telegram advised that the Department was fully justified in completing the work itself, the Chief Engineer on September 25 again wrote the appellant’s firm that,
as no satisfactory progress has been made since my notice has been served upon you it has been decided to take the work out of your hands, in pursuance of Clause 19 of [the contract],
and that “the materials, tools, equipment, etc., become the property of the Department.” This letter stated that “the required instructions have been given Mr. District Engineer Thomas J. Locke,” to whom the firm was referred for any further information.
The Department afterwards proceeded with the work itself under Mr. Locke’s supervision and upon the changed plan which the latter had made, using the appellant’s materials and equipment therefor.
The Chief Engineer’s notice of September 11, 1929, was the first complaint made to the contractors by that official of any default or delay in diligently executing any part of the work to his satisfaction after the signing of the contract by the Deputy Minister on September 22, 1928. There is not a written line of any such complaint by any officer or representative of the Department in the whole record from the date of the signing of the contract until that notice was served. The only exhibit containing even so much as a suggestion that there had been any delay of any kind on the part of the contractors is Locke’s letter of May 8, 1929. This is the letter in which Locke confirmed his conversation of the previous day regarding the creosoting of the timber for the crib after six weeks’ seasoning instead of four months’ seasoning which the creosoting plant usually insisted upon. “This concession,” Locke stated in that letter, “was made you in order to expedite commencement of this work at the earliest possible date,” and he added:
I wish to emphasize the importance of your not neglecting any opportunity of procuring a suitable dredge quickly for the purpose of having the foundation excavated and work commenced June 1, 1929.
It is true that on the trial he said, in answer to questions by the respondent’s counsel, that he was not satisfied with the progress the contractors had made up to May 7, and that he felt that they should have made arrangements the first part of September when they heard they had the contract—that was before the contract was signed—and it was the first of May when they were trying to procure dredges. In cross-examination, however, he admitted that he approved of the creosoted timber; that he did not expect any actual work to be commenced before spring; and that the earliest time he would expect the contractors to undertake the dredging would be between the middle of May and June 1. His letter of May 8 itself, it will be noted, made no complaint of any delay that had occurred in connection with the dredging, but merely impressed upon the contractors the importance of procuring a suitable dredge quickly in order that work might be commenced on June 1, 1929. As a matter of fact, the contractors had tried to secure a dredge some time before that from the Saint John Dredging Company, which was unwilling on account of the small quantity of material to be dredged to undertake the job, and Boone on the very day of the conversation mentioned, May 7, according to Locke’s own testimony, negotiated with the manager of the Beacon Dredging Co. of Halifax to do the dredging, and informed him that the latter had agreed to do the work. It was May 27, however, before the formal charter was signed, whereby the Dredging Company agreed to send its dredge J. A. Gregory from Parrsboro, where it was, to the site within a week of that date with a tug boat and scows with three days’ allowance to make the trip. On account of repairs which had to be made, this dredge did not arrive at the site until late in June and it did not make its unsuccessful attempt to do the dredging until July 2. No complaints were made by Locke or by the Chief Engineer or anybody else of the delay caused by the dredging company, and after its failure Locke himself made arrangements for the contractors with the manager of the Saint John Dry Dock Co. to send the Leconsfield into the site while on its way to Liverpool, N.S. McKay, the resident engineer’s inspector, admitted that at the time Locke made the changes in the plan all that could reasonably be done on the crib had been done by the contractors, and it is obvious that no progress could be made with the actual erection of the crib and pier until the foundation was prepared.
So far, therefore, as the Chief Engineer’s notice of September 11 is concerned, although it recites the fact that the time for performance of the contract had then expired, it conclusively shews that this was not the reason for the contemplated action. The notice on its face carries with it an extension of time and commits the Department to the second preamble as its justification, viz., that the contractors had “made default and delay in diligently continuing to advance or execute the said works to the satisfaction of the undersigned.” If this preamble refers to any default or delay in the execution of the work before the resident engineer changed the foundation plans, it is clear from what has already been stated that there is no evidence whatever that there was any default or delay of any kind on the part of the contractors before that time in diligently continuing to advance or execute the work to the satisfaction either of the Chief Engineer himself or of the resident engineer or of any other officer or representative of the Department. It must accordingly be taken as referring to the delay which took place afterwards. If there had been any delay of any kind previously it could only have been in relation to the contractors not having arranged immediately after being notified of the acceptance of their tender for the procuring of the timber for the crib and for the hiring of a dredge, notwithstanding that the dredging for the foundation was not expected by the resident engineer or the Department itself to be commenced before June 1. These were the only pretended grounds of previous delay suggested on the trial. If they were real or in any light fell within the terms of the contract they were clearly condoned, as clause 55 of the contract shews that any breach or default might be condoned, though providing that no such condonation shall operate as a waiver of any term of the contract if it is a breach or default “similar to that for which any action is taken or power exercised or forfeiture is claimed or enforced against the Contractor.”
What then are the true facts as to the delay for which it must be taken, as already intimated, that the Department’s action was taken and the forfeiture of the contractors’ materials, plant and equipment claimed?
The resident engineer finds the original foundation plans unfeasible, informs the contractors to that effect and that he is going to change them and substitute a new foundation, furnishes the contractors and his own inspector with copies of the changed plan, admits that the substituted plan involved the abandonment of ten feet of the crib the contractors already had constructed, new work in the rock talus and many other important items for which no provision was made in the original contract, telegraphs the contractors on August 28 to start work on the new plans, notifies his assistant supervising engineer, ignores the contractors’ request for written confirmation covering the changes in accordance with the terms of the contract, deliberately waits until the date for completion expires, and then advises the Chief Engineer to take the work out of their hands. The Chief Engineer consequently directs the necessary notice to the contractors. The resident engineer’s report which brought this notice to the contractors was not produced on the trial for some reason, but the notice to the contractors brought a letter from them to the Chief Engineer, which advised him of the true facts and that the contractors were awaiting the written confirmation to which they were entitled from him before proceeding to construct the new foundation which Locke had ordered them to do. The Chief Engineer, without acknowledging this letter or either confirming or repudiating Locke’s order to the contractors to proceed on the changed plans, sends a copy of it to Locke. The latter replies on September 23 with a telegram of over 500 words. In his telegram he states that he instructed the contractors on August 13 to immediately proceed with the foundation work on the changed plan; that their complaint as to non-receipt of written confirmation did not bear on subject as his instructions were given in the presence of three witnesses and that the change was not a sufficient radical departure to justify their complaint, and then he proceeds to formulate complaints of previous delays on the part of the contractors in connection with the procuring of the dredge, alleging, quite contrary to the evidence adduced on the trial, that the contractors made no move to procure a dredge until practically compelled by him to do so, and that their entire conduct had been unsatisfactory and unprogressive. Not content with this he went on to bolster up a case against the contractors by stating that he had learned from outside sources that Mr. Boone did not intend to move “until he received a letter from me promising much larger prices than he was getting”—a statement for which no justification whatever is to be found in the record, and concludes with the statement that he considers the Department fully justified in completing the work itself and “not trusting contractor who pursues such dilatory methods with the evident intention of forcing our hand if possible to receive a larger remuneration for work which he should have completed long ere this date” and an urgent recommendation “for early action” to this end. Then follows the final notice of September 25, from the Chief Engineer, taking the work out of the contractors’ hands without any acknowledgment having been made of their letter of September 18, though a later note of September 20, referring to a claim received from the Beacon Dredging Co. for its futile attempt to do the dredging, was acknowledged on September 24 with the mere statement: “the contents of which have been noted.”
That the Chief Engineer’s notice of September 11 was, directed to the contractors at the instance of the resident engineer cannot, in my opinion, be doubted. That the contractors had previously been advised by the resident engineer of material alterations he had made in the original plans and definitely ordered by him to proceed with their work under the altered plans and at the time they received the Chief Engineer’s notice were awaiting the written confirmation of the resident engineer’s directions, which they had requested of the latter, is alsо beyond question. That the Chief Engineer’s notice can only be interpreted as a notice to proceed with the work under the original plans is self-evident. The learned President of the Exchequer Court so construed it, and held that, at the time the Chief Engineer gave notice, the original plans and specifications remained unaltered because of the failure of that official to approve the changes and instructions, made and given to the contractors by the resident engineer. The result of the whole situation is that we have the Department terminating the contract and declaring a forfeiture of the contractor’s materials, plant and equipment because of the Department’s own failure to approve the resident engineer’s orders in accordance with the terms of the contract, and refusing to do so upon the representations and advice of the resident engineer himself, and then immediately proceeding to do the work itself, not upon the original contract plans and specifications, but upon the very plans, as altered by the resident engineer, which it had refused to confirm in writing for the contractors.
This seems to me, not only to constitute harsh treatment of the contractors and to have placed them in a most awkward position, as stated by my brother Smith, but to constitute on the part of the Department itself conduct which cannot be defended or justified under any of the very onerous and oppressive terms of the contract which the contractors were required to sign before entering upon their work. It surely ought not to be permitted to justify its harsh and arbitrary action by putting forward as a default or delay of the contractors “in diligently continuing to advance or execute the said works,” a default or delay which is directly attributable to the Department itself. That the law precludes the Department from doing so is clearly shewn by Roberts v. Bury Improvement Commissioners[2], and Lodder v. Slowey[3]. In the former case Blackburn, J., enunciated this principle in the following words at p. 136:—
for it is a principle very well established at common law that no person can take advantage of the non-fulfilment of a condition the performance of which has been hindered by himself.
Kelly, C.B., in delivering the judgment of himself and Channell, В., in the same ease, said:—
In this case we should have been content to have simply adopted the judgment of my brother Blackburn, in which we in substance concur, and observing that, inasmuch as it is admitted on the record that the alleged failure by the plaintiff to use such diligence and to make such progress as to enable him to complete the work by the day specified, was caused by the failure of the defendants and their architect to supply plans and set out the land necessary to enable the plaintiff to commence the work, the rule of law applies, which exonerates one of two contracting parties from the performance of a contract when the performance of it is prevented and rendered impossible by the wrongful act of the other contracting party. And again:
Now, in considering this question, we agree that we are not to assume a jurisdiction which we do not possess, to mitigate the hardship upon contractors of clauses, however oppressive, which are sometimes, and indeed most commonly introduced into agreements of this nature; but we must take care also not to add to their severity, and to the injustice which they are often the means of inflicting upon a contractor, by imagining stipulations which are not to be found in the contract, and which the parties have never entered into or contemplated.
In Lodder v. Slowey[4], in delivering the judgment of the Judicial Committee of the Privy Council, Lord Davey pointed out that the jury had found that the corporation, meaning the borough council acting by their engineer, prior to the seizure of the works improperly prevented the respondent from proceeding with the works in the manner authorized by his contract and also prevented him from proceeding with the works with sufficient expedition, and said:—
Their Lordships hold that a party to a contract for execution of works cannot justify the exercise of a power of re-entry and seizure of the-works in progress when the alleged default or delay of the contractor has been brought about by the acts or default of the party himself or his agent
—citing Roberts v. Bury Improvement Commissioners[5].
In this case the Chief Engineer and the resident engineer between them just as effectually held up the contractors as if they had directed them to suspend all work. One was ordering them to proceed with the foundation work on a new plan, while refusing to obtain for them the written confirmation which they demanded and to which they were entitled, and the other, knowing this fact, was notifying them to proceed on the original plan, while ignoring their specific request to him for written confirmation of the resident engineer’s orders to such an extent that he would neither signify to them his approval or disapproval thereof.
Apart, however, from this feature of the case, I go further and hold that the Department did not bring itself within the terms of clause 19 of the contract, under which it pretended to act. I have already pointed out that the Chief Engineer’s notice committed the Department to the second preamble as the justification for its action, and did not claim to exercise the power of re-entry and confiscating the contractors’ property because of their failure to complete within the contract time, but in point of fact notified them to proceed with the work after the time fixed for completion had expired. The Department, therefore, was bound to justify under the following words of that clause:
In case the Contractor shall make default or delay in commencing, or in diligently executing any of the works or portions thereof to be performed, or that may be ordered under this contract, to the satisfaction of the Engineer, the Engineer may give a general notice to the Contractor requiring him to put an end to such default or delay, and should such default or delay continue for six days after such notice shall have been given by the Engineer to the Contractor * * * the Minister * * * may take all the work out of the Contractor’s hands * * *
On a fair construction of this language it must, I think, be taken to pre-suppose the existence of some specific, definite default or delay on the part of the contractors in diligently executing any of the works or portions thereof to the satisfaction of the Engineer, of which complaint has been made to them; otherwise what effect can be given to the words of the notice “to put an end to such default or delay”? If by “the Engineer” is meant, as is contended, the Chief Engineer, he certainly had never apprized the contractors of any dissatisfaction on his part with the progress of the work in any manner or form, and there is no evidence of any complaint having been made by the resident engineer or any of his representatives other than that already pointed out of any default or delay prior to the time when the resident engineer recognized the un-feasibility of the provision in the original specifications requiring that the footing for the pier be excavated to the rock by means of a dredge. The words of clause 19, under which the Department purported to act, clearly contemplate that the contractor shall be made aware of the default or delay with which the Engineer is dissatisfied. Otherwise how could the contractor reasonably be expected to put an end to such default or delay within six days? The clause is a confiscatory clause and as such should be strictly construed against the party seeking to enforce its provisions. It was incumbent on the Department, in order to justify under it, to prove by a preponderance of testimony that the contractors were guilty of some default or delay in diligently executing some part of the contract work to the satisfaction of the Engineer, the intention of the clause, of course, being that the Engineer in the exercise of his judgment should act justly and reasonably. The undisputed and indisputable facts al- ready pointed out not only fail, in my opinion, to discharge that onus, but absolutely negative the claim that the Department was justified in taking the contract work out of the contractors’ hands and confiscating their material, plant and equipment.
Notwithstanding the one-sided character of the contract and the limitation prescribed in clause 37 of the specifications as to the power of the Department’s supervising District Engineer in respect of it, I can find nothing in that clause or in any other clause of the contract or the specifications from beginning to end, by which it is provided that the action of the District Engineer or any other representative of the Chief Engineer or of the Department may not be relied upon by the contractors as an excuse for any default or delay which may be charged against them in the execution of the contract work, even though such action may not be approved in writing by the Chief Engineer. The question to be decided here is not whether the contractors are to receive compensation for work ordered by the District Engineer, without the written authority of the Chief Engineer, but whether they are to be debarred from claiming for the work which they performed under the original contract and specifications because they declined to proceed with their work on the foundation on the orders of the District Engineer under plans delivered to them which constituted a radical departure from their contract without the changed plans and the resident engineer’s order to execute these changes first being approved in writing by the Chief Engineer in accordance with the terms of the contract. That the Department entrusted the whole supervision of the work to the District Engineer cannot be disputed, and I am not at all sure that, apart from the limitation prescribed in clause 37 of the specifications, the words “the Engineer” used in many other clauses of the contract should not be construed as the District Engineer. The definition of the term “Engineer” provides that it “shall extend to and include any of the officers or employees of the Department of Public Works acting under the instructions of the Chief Engineer or Chief Architect,” while the introductory words of the interpretation clause provide that it is only where the context does not otherwise require, that the definitions stated shall apply. It is a matter of common knowledge that the Chief Engineer himself does not personally witness the progress of any of these works, and that he necessarily relies entirely on the reports of the supervising district engineers throughout the country, and moreover, that these District Engineers are permanent and highly responsible representatives and agents of the Department in the supervision and direction of the execution of all such works. Indeed in the case at bar the evidence indicates that Locke’s was really the controlling mind from the very inception to the termination of this contract. The original plan of August 7, 1928, bears his signature as having been checked by him as Supervising Resident Engineer. It was he who notified the contractors by telegram on September 1, 1928, that he had been advised directly by the Minister of the passage of the order in council accepting their tender, and of his anxiety to have the work commenced at the earliest possible date, as the Minister wished to make “important announcement in address Clarks Harbour his constituency Monday matter urgent.” It is true that he denied on the trial that this message was dictated by his desire for political reasons to get something which could be seen on the ground, even before the contract was signed, but the message none the less shews to what an extent the Department relied upon him as its representative in the district, and the facts as above outlined as to what occurred in connection with the creosoting of the timber, the dredging, the changing of the plans, the giving of the notice terminating the contract, the appropriation by the Department of the contractors’ materials, plant and equipment, its immediate approval after the termination of the contract of his change in the plan, and the prosecution of the work by the Department under the changed plan and under his supervision and direction, are, in my opinion, conclusive as to his being, not only a recognized representative and agent of the Department, but, as I have already said, the real controlling spirit in all that pertained to this contract and its execution from beginning to end.
As to the objection which was raised on the trial regarding the non-joinder of Voye as a suppliant, I am inclined to think, having regard to the terms of the partnership agreement between Boone and Voye whereby Boone was to supply without charge all plant, tools and equipment which he owned as well as all necessary funds for the completion of this and the two other contracts to which the partnership agreement was confined and that all moneys received by the partnership in respect of the three contracts were to be deposited in the name of Boone and that Voye’s interest in the partnership was limited to his right to share only in the profits of the three contracts after payment of all moneys properly payable by the partnership, that Boone had a right to bring his petition in his own name. See Atkinson v. Laing[6]. Whether I am justified in this view or not, it is clear that the mere failure to join Voye in the petition could have made no difference in the attitude of the Attorney General in granting his fiat and that the respondent was in no way prejudiced by such non-joinder on the trial of the cause. If, therefore, there should be any doubt upon this question of non-joinder, I have no doubt as to the right of the Exchequer Court to allow an amendment joining Voye in order that the petition should not be defeated upon that ground. The learned President of the Exchequer Court in his judgment expressed the same view, though, as he stated, not without some doubt, and granted leave to add Voye as a suppliant upon the condition that Boone indemnify Voye, if the latter so required, against any costs to which he might be subjected thereby. Apparently this suggestion was not accepted on the trial.
In my opinion this appeal should be allowed, the judgment of the Exchequer Court should be set aside and the case sent back to the said Court for the assessment of damages, with the reservation of the right of the suppliant, if deemed advisable, to join Voye in the petition.
I would therefore allow the appeal with costs and remit the case to the Exchequer Court for the purpose and with the reservation stated. Smith J.—The appellant, having been the successful tenderer for the contract of Ice Pier No. 5 at Barrington Passage, Shelburne County, Nova Scotia, entered into a contract for its construction with the Department of Public Works.
The plan and specifications of the work, upon which the appellant tendered, required that the pier should be founded upon bed rock, necessitating the removal of an accumulated mass of what was called “sand, gravel and boulders,” amounting to 975 cubic yards. The specification provides that the footing for the crib must be excavated by means of a dredge to the rock, and cleared off by a diver. A crib of the size of the proposed pier was to be built of 10˝ by 10˝ square creosoted timber, to be placed on the prepared foundation.
The contract was signed on 22nd September, 1928, and provided that the work was to be completed by 1st September, 1929.
The first question that arose was as to the timber. The ap