The King v. Wallberg

The King v. Wallberg
Collection
Supreme Court Judgments
Date
1911-04-03
Report
(1911) 44 SCR 208
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Canada
Subjects
Contract
Decision Content
Supreme Court of Canada
The King v. Wallberg, (1911) 44 S.C.R. 208
Date: 1911-04-03
His Majesty The King (Defendant) Appellant;
and
Emil Andrew Wallberg (Plaintiff) Respondent.
1910: November 25, 28; 1911: April 3.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Contract—Public work—Work dehors contract—Acceptance by Crown —Payment—Fair value.
W. was contractor with the Crown for constructing a car and locomotive repair plant at Moncton, N.B., and was subject to the orders of the government engineer. By order of the engineer and with no contract in writing therefor he constructed sewers and a water system in connection with said works, and on completion of his contract the Crown accepted the additional work and agreed to pay its fair value, but not the amount claimed, which was deemed excessive. The Department of Railways referred the claim to the Exchequer Court and, by consent, it was referred to the Registrar of the court to have the damages assessed, the order of reference providing that "the amount to be ascertained shall be the fair value or price thereof allowed on a quantum meruit" The Registrar fixed the amount at $53,205, as the fair value of the work reasonably executed on a somewhat different plan. The judge of the Exchequer Court added $39,000 to this amount, holding that the Crown had admitted the authority of the engineer to order the work to be done, and that W. was entitled to the actual cost plus a percentage for profit. On appeal by the Crown:
Held, Anglin J. dissenting, that the judgment appealed against (13 Ex. C.R. 246) was not warranted; that the Crown had not admitted the authority of the engineer, but expressly denied it by pleadings and otherwise; that all W. was entitled to be paid was the fair value of the work to the Crown and the amount allowed by the referee substantially represented such value. APPEAL from a decision of the Exchequer Court of Canada[1] varying the report of the registrar on a reference to ascertain the amount due to the plaintiff for work done by him and accepted by the Crown.
The facts of the case are sufficiently stated in the above head-note.
Tilley and Friel for the appellant.
Nesbitt K.C. and Harold Fisher for the respondent.
The Chief Justice.—I agree with Mr. Justice Duff. No contractual relation existed between the parties when the works in question were executed and there was no liability in the Crown to pay for them when completed.
The power, except in certain cases, to make contracts which are binding upon the Crown is limited by section 36 of the "Public Works Act" (R.S.C. ch. 39), to such as are executed under the direction of the Governor in Council and it is not contended that any such contract was ever entered into between the parties, or that this case comes within the enumerated exceptions. The authority of the engineer to contract for the works, or any part of them, is expressly denied in the second paragraph of the statement of defence. It does not even appear that the Minister, or the Deputy Minister, sanctioned or was aware of the instructions given by the engineer.
The Crown, having profited by the work which was done upon property belonging to the Crown, the Minister of Railways agreed to refer the claim to the Exchequer Court under the powers conferred upon him by 50 & 51 Vict. ch. 16, sec. 23, and the important question we are asked to determine upon this appeal is: Assuming that the Crown avails itself of the statutory provision in question for the purpose of ascertaining what it is fair the Crown should pay for work done without its authority upon its property, and of which it has received the benefit, is it competent for the Court of Exchequer to measure the moral voluntary obligation of the Crown, without its consent, by what the work in question, proceeding by extravagant and unreasonable methods, has cost the person who did it, plus a profit thereon to that person, ignoring altogether the value of the work to the Crown, and declining to apply any measure which requires the reasonable and economical performance of the works? To this question there can be but one answer. The Crown was under no legal liability, on the facts as proved, to pay for the work; and the measure of the voluntary obligation assumed by the reference to the Exchequer Court under the statute must be the value of the work to the Crown.
It has been argued that the scope of the inquiry was widened by the order of reference made by the judge to the registrar, and that the duty of the latter was under that order to ascertain the fair value or price of the works in question allowed on a quantum meruit basis. This contention cannot be maintained, I say it with all deference. The Minister referred the claim to the Exchequer Court for adjudication but without the admission contained in paragraph five of the statement of defence there would be no liability whatever on the part of the Crown and there should have been no reference to the registrar. The liability of the Crown is to be measured and the power of the judge to refer the claim is limited, therefore, by the scope of the admission which is to the effect that, the Minister of Railways, having accepted and taken over the works on behalf of His Majesty, is willing to pay the fair value of the same; and it is not to be presumed that the judge intended to exceed his authority or to add to the moral, voluntary obligation of the Crown without its consent. The registrar, giving to the terms of the reference their plain meaning when read with the defence, reported the fair value of the works to the Crown, if proceeded with economically and reasonably. Reversing this decision, the judgment appealed from[2] allows to the respondent the cost of the work, plus a profit, without regard to its value to the Crown. If the language used in the order referring the matter to the registrar was susceptible of the construction put upon it by the judgment of the Exchequer Court on appeal, then I am of the opinion that the learned judge, in making such an order, exceeded his jurisdiction, which was limited expressly by the reference under the statute and the defence and could not be extended by counsel for the Crown. To permit the basis of liability in cases referred by the Minister under the statute, 50 & 51 Vict. ch. 16, sec. 23, to be extended by consent of counsel would lead to abuses, which it is not difficult to foresee. For the reasons given by Mr. Justice Duff, I do not think that it was intended by the order of reference to substitute for the fair value to the Crown the amount expended by the respondent, plus a surplus to him.
I am of the opinion that the appeal should be allowed with costs.
Davies J.—It seems to me this appeal must be disposed of largely, if not altogether, upon the construction put upon the order of reference made herein by the Court of Exchequer to the registrar of that court. The action was brought by the plaintiff, respondent, for payment of certain works carried out by him in connection with the Intercolonial Railway property at Moncton.
These works comprised a main sewer, branch sewers, a water-system, all connected with certain buildings which the plaintiff, respondent, had contracted with the Crown to build for the railway.
No contract had been entered into or authorized by the Crown for the construction of the works in dispute, but the plaintiff claimed that they became necessary in connection with the construction of the buildings which he had contracts for, and that the chief engineer, Mackenzie, of the Intercolonial Railway, who had been appointed to supervise and control these contracted-for works on behalf of the Crown, had authorized him to construct the sewer and water system in question.
The plaintiff contended that the works as completed by him had been accepted and taken over by the Minister of Railways and Canals of Canada, and he claimed payment for the same either as extra work done by him under his contracts with the Crown, or, in the alternative, for work and labour done and materials supplied by him at the request of the Minister of Railways and Canals.
It seems quite clear that the claim for payment as extra work under the contracts could not be maintained, and no question arises on this appeal on that ground.
It was also equally clear under the evidence that the only authority which the plaintiff had for doing the work sued for was that of the chief engineer. The Crown, in its statement of defence, denied having entered into any written or other contract with the claimant for the execution of the work sued for; and also denied having authorized the chief engineer, Mackenzie, to contract for the same.
The fifth paragraph of the defence reads as follows:
The Minister of Railways has accepted and taken over the said works on behalf of His Majesty and is willing to pay the fair value of the same, but not the amount claimed, which is considered excessive.
After issue was joined on these defences, an order was made by consent of counsel for both parties,
that it be referred to the registrar of this court for inquiry and report to ascertain the value of the works executed by the plaintiff referred to in the statement of claim, and in respect of which this action is brought.
And,
that the amount to be ascertained shall be the fair value or price thereof on a quantum meruit.
The registrar entered upon the inquiry and took an immense mass of evidence. In reaching his conclusion he stated in his report that
the only question now to be determined, the Crown having accepted and taken over the works, is the fair and reasonable value so to speak of the said works.
After a very full and careful review of the evidence, the registrar reported in favour of allowing the plaintiff $53,205.65, which he held was
not only a fair and reasonable value, but a very liberal price to any ordinary contractor.
On appeal to the Exchequer Court from the report of the referee, the learned judge held that the registrar had proceeded upon a wrong principle in reaching his findings. The learned judge held as follows;
There being no written contract making Mackenzie the sole judge, the Crown is not bound by his report as to the amount due. But the Crown does admit his authority in ordering the works. To my mind it would be manifestly unfair to the contractor in the face of what has taken place and in the face of this judgment to act on the evidence of other engineers who endeavour to shew that Mackenzie might, have adopted a. different plan which would have cost less. It seems to me the case must be viewed from the standpoint of the works being executed on the plans of Mr. Mackenzie and accepting his plans then a quantum meruit.
Now, if I could reach the conclusion that the reference meant an admission of Mackenzie's authority to order the works and an acceptance of his plans, I should have no hesitation in agreeing with the learned judge's conclusions. The plaintiff, once he proved that he had obeyed the orders of a person authorized by the Crown to give them, and had, in doing so, expended a certain amount of money in the completion of the works, would be entitled to rely upon those facts as the best evidence of what he was entitled to receive, namely, the full amount of his expenditure plus 15 per cent. for his contractor's profit in terms of Mackenzie's orders to him. .
There might, of course, be some deduction from this for improvidence or recklessness or extravagance in carrying out the orders if such were clearly proved, but apart from that, nothing remained for the referee to do but ascertain what the works Mackenzie ordered the plaintiff to do cost him and report that as the amount he should recover, plus 15 per cent, contractor's profit.
The finding of the learned judge was the logical outcome of his construction of the order of reference. He says, p. 282:
I think on the evidence as a. whole the plaintiff should be paid the amount found as due by Mr. Mackenzie.
I am not able, however, to agree in his construction of this order of reference. It places the Crown in the position of "admitting Mackenzie's authority in ordering the works," that is, of admitting that which upon the record the Crown distinctly denied, and on which denial the Crown's claim to reduce the plaintiff's demand largely depended.
The Crown in its pleadings denied that the works were done under any written or other contract with the plaintiff, or that Mackenzie had authority to order them to be done.
But the Crown went further and said in its fifth plea, that, as the Minister of Railways had accepted and taken over the works, the Crown was
willing to pay the fair value of the same, but not the excessive claim of the plaintiff.
It was under this plea that I take it the consent to the reference was given, and it is with respect to the admitted willingness of the Crown to pay the fair value of the works because of their acceptance and because of that only, that the terms of the reference must be construed.
In construing the order of reference I do not think we should either ignore the plea of the Crown consenting to the payment of the fair value of the work because the Crown had accepted it and taken it over, or the plea specifically denying Mackenzie's authority to order the works to be done. Nor are we justified in ignoring the fact that the works in question were constructed by the plaintiff in direct defiance of the provisions of the statute relating to public works. The sole and only ground upon which the Crown in its plea consented to pay the fair value of the works was that they had been accepted and taken over. To read into the order of reference an admission of Mackenzie's authority to order the works is really to give away the Crown's defence altogether and reduce the reference down to one of mere form.
The work sued for was done without any contract and in fact in direct violation of the provisions of the statute law. That fact must have been perfectly well known to such an experienced contractor as the plaintiff, and he was equally responsible with Mackenzie for the illegality of the entire proceedings and construction of the works. He knew there was no tender and that not even the sanction of the Department of Public Works had been obtained for these works.
The Crown did not agree to a reference because the contractor had carried out works which its chief engineer had authority to order. In fact it denied explicitly any such authority, and on the record before us it must be taken that Mackenzie had not any such authority.
The Crown agreed to the reference because, as said in its plea, it had accepted and taken over the work, and was willing to pay the fair value of the same. It was this fair value of the works which was intended to be referred and nothing else.
It was certainly not such fair value estimated on the assumption that Mackenzie had authority to order them and to direct the manner and mode in which they should be constructed.
I can quite understand the equity of position taken by the defence in saying, it is true the Crown did not order or authorize these works for which you claim payment to be constructed, and it is equally true that their construction has taken place in direct violation of the provisions of the statute requiring tenders to be called for, but the Crown is in the position of a person who finds his property improved by works which he did not order, and for which he did not agree to pay. The Crown, under the circumstances, however, has accepted the work. It might be said that the Crown had hardly an alternative choice between acceptance and rejection. It was under the circumstances almost obliged to accept. But having so accepted and taken the benefit, it was just that payment should be made of the fair value of the work. But such a consent cannot involve an obligation to pay more for the unordered work than its fair value to the Crown so accepting. The reference was not to find out what, under the peculiar circumstances of the case, the works did cost the contractor, but what their fair value was if they had been constructed as they should have been.
Disagreeing, therefore, as I do, with the basic principle upon which the learned judge reached his conclusions, and agreeing substantially with that on which the Registrar proceeded and made his report and valuation of the work, I am unable to find anything in the record to justify interference with his findings of fact, and would allow the appeal with costs and confirm the report of the referee.
Idington J.—The conflicting points of view taken by Mr. Justice Cassels and the Registrar of the Exchequer Court require us in this appeal to solve the question of which is right in the construction of the order of reference.
It is not pretended now, though it once was, that the appellant ever in fact authorized the works for which the respondent claims to be paid.
In the course of carrying out contracts, let to respondent for the erection of shops at Moncton for the Intercolonial Railway service, he and the chief engineer of that road conceived that a sewer and branches leading thereto and also water-pipes, might become serviceable for said shops.
Instead of bringing this under the notice of the Minister responsible for such expenditure as the execution of. such works would involve, the chief engineer improperly and illegally took it upon himself to direct respondent to carry out the execution of such works. The contractor, from what we are told of him by his counsel relative to his knowledge, intelligence and wide experience, must have known of the need for, and entire absence of, authority to give such an order.
This proceeding attracted public attention before the unauthorized work was quite finished. Yet respondent never presented his claim till some months after these works were finished. This action is the result.
In answer to the statement of claim making a case for extras under said original contracts, the appellant pleaded denying any contract or authority in any one to direct such works and that they were not extras under said contracts.
Thereafter is the following plea:
5. The Minister of Railways has accepted and taken over the said works on behalf of His Majesty and is willing to pay the fair value of the same, but not the amount claimed, which is considered excessive.
Upon this plea issue was joined and an order of reference was made by consent as follows:
2. This court doth order that it be referred to the registrar of this court for inquiry and report and to ascertain the value of the works executed by the plaintiff referred to in the statement of claim, and in respect of which this action is brought.
3. And this court doth further order that the amount to be ascertained shall be the fair value or price thereof allowed on a quantum meruit. The costs were also left to the disposal of the registrar. The registrar has reported and therein: said as follows:
The Crown having accepted and taken over the works, stands in the position of a person who employs another to do work for him without any agreement as to his compensation, and in such a case the law implies a promise from the employer to the workman that he will pay him for his services as much as he may deserve or merit— quantum meruit.
In the result he has refused to allow for more than he has found as fact these works could have been executed in the place and within the time necessary for their construction and fixed the sum due on that basis at $ 53,205.65.
On appeal Mr. Justice Cassels has reached the conclusion, although as already stated absolutely and specifically denied in the pleading, that "the Crown does admit his" (i.e., the engineer's) "authority in ordering the works." And as a consequence thereof he arrives at the conclusion that the engineer having directed, as he himself avows, that to be done which would comprehend each step taken, no matter how fruitless in value to the appellant, everything paid by respondent as part of such proceedings must be repaid him with fifteen per cent, profit added thereto, and has substituted the sum of $92,305.48 for that allowed by the registrar.
With great respect I am quite unable to accept any such conclusion.
I am unable to see how, when a party, as explicitly as is done here, denies authority, he can be held to have admitted it.
I am unable to draw any such admission by way of inference from the enforced or almost enforced occupation or possession by him of the works built without authority and an expressed willingness to pay for their fair value. Nor am I able to see how when he has agreed to refer the question of value to any judicial officer to determine that value, he can be presumed to have, by adopting the language used here, implied in such adoption some technical meaning not necessarily involved in the language and which the attendant circumstances so clearly excluded.
If the Crown intended to pay for these works not what they are or were worth, but what they cost, I see no need for a reference.
I cannot impute to the law officers of the Crown on the motion for reference or at the trial of such an issue, such an obvious absurdity, or the bad faith it must imply towards the Crown entitled to be guarded against making any such admissions, lest doing so might lead to just such conclusions as reached by the learned judge.
In other words, the language is just that used where excess of authority may have happened, yet the proprietor ought to pay that which justice demands from him, thus driven by force of circumstances to accept results and use them.
The only implication of authority is that which the law implies in order that the fair value of that used, and only so far as used, may be paid for, but never extends to or reaches any abortive efforts in producing the thing used.
In this particular case, the paragraph, in addition to the preceding words, relative to ascertaining value, was clearly to express this idea, and to shew that no such refinement of meaning, as might in its absence be contended for, was to be implied. For example, on the one hand, the works when disconnected from the building, might be held to be of little value, and on the other hand, their value when used in connection with the appellant's buildings might be almost inestimable, apart altogether from what it might have cost to have them properly constructed.
To deduce from the authority so plainly denied such consequences as appear in this case seems an absolute denial of justice.
Two illustrations may be given here of how far the learned judge's construction of the order of reference carries him.
Proceeding in a reckless way, indeed quite in keeping with the recklessness characteristic of the proceedings throughout, the chief engineer instructed the contractor to begin the main sewer through property neither had a right to enter upon, or so far as I can see either ever could have supposed he had a right to enter upon. The contractor says he spent thereon something over seven hundred dollars ($700) when one of the owners drove them off. Forced from that place the engineer and contractor abandoned that work and proceeding, and turned their attention elsewhere to the locality where the sewer was finally placed.
The expenses of this unwarranted work are included in the sum allowed in the learned judge's judgment.
Again the work was delayed in a most unwarranted manner if to be ended in 1906, as it might have been done.
The contractor having delayed beyond his instructions, began in September with a force entirely inadequate for the purpose of completing even a substantial part of the work before the winter frosts set in, which everybody is agreed forbid the prudent continuation of such work.
This feeble force dug out unevenly along the entire line of the proposed main sewer, leaving deep holes likely to catch water and produce cavings in here and there.
The contractor's own foreman speaks of this as follows:
Q. How much of the main sewer was done when you took hold? A. How much had been done?
Q. Yes? A. Well, they had done that much that if I had been taking the contract I would have taken it for less money than when I commenced.
Q. Try that again? A. If you want to understand it more thoroughly, all the work they had done I considered a detriment at that time.
The Registrar: Q. In what way? A. In this way, that as the stuff where they had scooped it out in holes had filled in with soft stuff off the banks, and slid right in there, there was no chance for the water to get away from that hard pan or get through it; it was in sort of basins.
Mr. Friel: Q. You mean by using the teams? A. It had not kept it level.
The Registrar: Q. By leaving a knoll? A. Yes, where they would go up over and down; that run in and was filled up with stuff, and you could not shovel it or do anything with it.
Q. You would not have done it in that way? A. No, sir, I would not; I would have kept it so that it would have drained.
Counsel for respondent quite properly points out that all this 1906 expenditure in the proper place did not much exceed two thousand dollars ($2,000). And according to the lordly way in which it seems government engineers and contractors are entitled to look at things, that is a mere trifle. He forgets that it is not only the direct expenditure which is involved, but the wretched condition in which it left the entire work when spring came and the work had to be done over again. Counsel overlooks the direct expenses of excavation and removal of this earth that is shewn elsewhere in the evidence to have caved in, and but for the condition created by bungling, would never have needed removal. Exactly how much that was, no one in the evidence in this case tells. He omits also to measure how much the results of this bungling hindered next year the prosecution of the work. No one can accurately tell that either.
It is, on the other hand, evident that a portion of the work done in 1906 could not have been rendered useless by the winter frosts. The best I can do is to say the amount of loss direct and indirect to cover this bungling far exceeds what counsel suggests and the problem is, if accuracy is to be reached, almost insoluble on the evidence before us. The respondent made no effort to solve it. Why should he if he has only to shew how much money he paid out and become thereby entitled to be repaid so long as the chief engineer says "yes"?
The rule laid down in the judgment appealed from relative to the quantum meruit to be applied, simplifies things and measures that by what the chief engineer may be supposed to have tolerated even though not specifically directed. It is, that whatever expenditure the chief engineer chooses to pass as in his opinion proper to be paid, must be paid, unless it is shewn he fraudulently passed it.
Respondent's counsel very prudently receded apparently from this position so far as to say that anything improvidently done could not be claimed.
His concession was more apparent than real, for he strenuously contended for the entire amount allowed and a good deal more including every dollar of all I have so far referred to. It conies back to this, that this improvident expenditure so severely condemned, by respondent's own witness and foreman, has been allowed on the supposition that the chief engineer's orders, conduct and opportunity to object, yet not doing so, have to be taken just as if he were substituted for the appellant or His Minister. The result reached is quite logical if the learned judge's construction of the order of reference is correct.
These illustrations shew the absurd consequences of such interpretation. That, of course, can have no place if the order clearly means what the learned judge puts on it. But we are face to face with the fact that no one during the reference took that position. It is one thing to say that the evidence of value given by the engineer is well worth considering in estimating a quantum meruit. It is entirely another thing to say that the order means an admission of his authority. In the latter case there was no need for expert evidence or the long expensive inquiry joined in by both sides. I cannot think this would have ensued if the parties conceived that the order meant what the learned judge holds.
Nor can I accept such construction. I must, therefore, examine the whole case so far as to see if the referee's findings are or are not correct.
Roughly speaking the total discrepancy between the results arrived at by the learned judge and the referee amounts to thirty-nine thousand dollars ($39,000) and that, speaking again in the rough, is distributable over the several works as follows: Twenty-three thousand dollars on the main sewer. Three thousand five hundred dollars on the branch sewers, and twelve thousand seven hundred dollars on the putting in of the water pipes, which were supplied or paid for by the appellant besides.
In other words, the branch sewers have had added to their estimated actual value, nearly thirty per cent., the main sewer seventy per cent., and the putting in of the water pipes nearly one hundred and fifty per cent.
It is to be remarked that the greatest discrepancy exists just where the greatest blundering or worse, according to the evidence, was made most apparent. These I will revert to in detail before concluding.
The water-works were over a mile long, and the main sewer over half a mile, according to respondent's evidence. The length of the branch sewers I am unable to fix as definitely.
This great excess of alleged cost over value in regard to a commonplace job of constructing a sewer only 2,880 feet long, of which eighty feet was a cedar box pipe at the outlet, is something so striking that I have been led to read and carefully consider every bit of evidence given by respondent or on his behalf, as well as the greater part of that given on behalf of appellant, to see if I could find any reasonable explanation for such results other than gross mismanagement or probable error on the part of all or some of those concerned in the execution of the work.
Q. I think you said the excavation was hard pan; is that correct? A. The excavation on top of the soil was a layer of peat, pretty nearly black, and that went down a foot or a foot and a half or two feet deep. Then below that was a clay for a few inches or so, a clay that seemed to be a little softer, and we got below that and got into a harder clay, and a large number of small pebbles and boulders; and you got deeper, and as you got deeper right straight along to the extreme depth, it grew harder, and the boulders grew larger, and more of them, and the soil grew harder to handle, harder to pick. Nothing very extraordinary one would say if permitted to use common knowledge.
And to make clear what is involved in the word “boulders" we find the foreman engaged in 1906 speaks as. follows:
The Registrar: Q. What sized boulders would they be, varying from what size to what size? A. Well, now, the boulders would be —I do not know as I—I never managed one, but there were some there that we chained out, and a great many the men took into the scrapers, and they would be quite a size.
Q. Those that you chained out could be drawn by one team of horses? A. Yes, sir, any of them could be drawn by one team.
Next year's foreman speaks of sometimes four horses being used to pull one out, but he fails to say how often.
Some witnesses who never saw the work in its execution dwell on veins of sand, and others who worked at it, speak of occasional veins of sand, or pockets of sand, but are very indefinite as to the extent of all that.
I suspect respondent knows a great deal more of the subject than all these other witnesses put together, yet he fails to put the stress they try to do upon that point of nature of soil.
And when any of those knowing better than he by reason of having done the work, come to speak definitely or as definitely as they could be induced to, we find one serious spot 1,100 to 1,200 feet from the lower end of the sewer.
When this point was reached the banks by reason, it is said, of this sand and gravel, began to give way and induced the men to try shoring, in which they failed. Regarding that question of shoring I will deal later on.
I am only now trying to describe the character of the soil as the evidence gives it. In addition to what I have stated there are a good many general allusions to sand mixed with clay forming a part of the soil, but definite or exact statement is hard to find save that when water touched the mixed soil it was difficult to handle, and to this I will refer when I come to speak of the water question.
I desire first to call attention to the proofs of cost.
As to whether these entire works actually cost what the respondent claims, I have the gravest doubt.
The main works executed under the contracts were going on at the same time (save in winter, when much of the water-system was done) and some six hundred men were employed thereon at times.
The men on these works now in question were liable from time to time to be called off to parts of the contract works. There was no time-keeper specially detailed for these works. There was no superintending staff of any kind, specially set apart to look after them. The division of time and material was, by reason of the want of system that prevailed, liable to become at many stages badly done. I do not say it was with one common staff impossible, but there occur at many stages of the doing so with this staff many chances for gross mistakes.
When we are told there never was an account opened in the ledger for these works during the two years they were in progress, and that the accounts which afterwards were made up and are now submitted were of such tracing as could be done from the invoices as marked at the time and the time sheets, it is impossible not to feel it was a most unbusinesslike way for handling the expenditure of so much money.
When we find the original slips on which the time was entered were kept until after each pay-day, and then destroyed, how can we have implicit confidence in what was done? If it was necessary to keep a check of that kind on file to meet the labourer and any of his possible objections, surely it was quite as important to have done so to satisfy the final paymaster.
Again as to the method, sometimes we find an alleged checking over with the foreman from day to day, yet we have not all the foremen called.
We have a foreman saying he kept a book and returned it into the office. Why so, if the time-keeper had taken it?
And when we find the respondent claiming one-fifth or one-fourth of the salary of his superintendent as against these works, though they only formed of the whole a twelfth part or less; claiming to be paid 20 per cent. of profit in face of a bargain with the chief engineer for 15 per cent, profit; claiming for weather wear on a concrete mixer standing over two years for works that should not have taken more than six months, at the outside; claiming for work done in Winter at rates involved in so doing it in excess of what it would have cost in Summer, according to an overwhelming weight of testimony, when there existed no necessity for doing it in the Winter time at all, and we find so doing it might have been for his indirect advantage in keeping men there, although work ceased on the contracts, I am not disposed to place unbounded confidence in the loose methods I have referred to as sure to result in the greatest attention having been paid by all concerned to save the pockets of the ultimate paymaster.
There were three time-keepers, of whom the first is said to have since died. The two others were examined. Jones, the next, says he came in June, 1907, and his evidence is very unsatisfactory. He hesitates and seems not to understand many questions so simple that if the man had been doing the work for months he should easily have answered. He does not strike me as dishonest, but as just the sort of man to make a bad bungle of his work of keeping and distributing time so kept in the way we are asked to believe it was kept and distributed. His self-contradictions in this regard do not tend to my putting implicit confidence either in what he is got finally to say or results derived from such a source. Yet it must have been he who kept time if it was kept during the summer of 1907, in which the greater part of the main sewer-work was done.
Gass, the next in order, came on the 11th of November of that year. He seems to have been, though inexperienced and a lad of only nineteen at the time he entered, of a brighter stamp than Jones. He had to depend in a way not quite clear upon one Manuel, who also kept time of some Italians employed. And Manuel is not called.
The whole system, if it can be called so, was at the mercy of the honesty of the foremen, and we have only the evidence of some of these engaged on the main sewer, but none of those on the other work.
We have that of Kitchen, under whose handling of the work in 1906 we have seen something.
Then we have the evidence of Godfrey, who was in charge of the main sewer-work in 1907, until the 20th of October of that year, when he left.
We have the evidence of a stable boss and a carpenter on the same work, all of which is not very important.
On such evidence and such methods I could not give with confidence I was right, any such award as the judgment appealed from if I were to adopt the cost to the contractor as the basis for payment.
But it is said the chief engineer is honest and he approves.
It is not necessary to enter upon this issue further than to point out that he is human, that he made a tremendous mistake in so far forgetting his duty and loyalty to those he served as to presume to make a bargain he had no authority or colour of right to make. If he by any possibility could have supposed this was an extra within the ambit of the execution of the contracts he had the supervision of, then the schedule prices ought to have governed him.
If the schedule prices were hot appropriate he had no right to substitute anything else. The moment he made a bargain he had no authority to make, he placed himself in a situation where his duty and his interest conflicted.
Whether from that cause or from other causes he certainly was mistaken either in his former evidence with which he was confronted, or in what appears herein.
He is not to be taken as a disinterested witness in this case.
He no doubt is a busy man and liable to err through want of time to investigate details. And I am quite sure, on the evidence, he never had personal knowledge of all these details, or investigated them.
He assumed and erroneously supposed till a late period some one on behalf of appellant kept time, and then suggested it being done with results not very clear, or at all to be relied upon.
Then we are asked to take the evidence of other experts, because eminent in their profession, who are called by respondent and say these expenses are reasonable.
For myself an expert has no more weight when speaking of matters within the range of ordinary human reason and apprehension as the subject-matter here is, than any other man when he fails to bring home to my mind as probably correct the reasons he gives and the explanation he offers relative to the matter he speaks of.
I need not enter into detail why such evidence as referred to, given on respondent's behalf, does not appeal to me herein, further than to say a close examination of the grounds therefor and reasons given for it fails to convince