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0^'
In the High Court of Justice
Queen's Bench Division. -^^^
Between
coNMEE & McLennan,
AND Plaintiffs,
THE CANADIAN PACIFIC RAILWAY COMPANY,
Defendants.
^^ MILE CONTRACT
20 MILE CONTRACT
TIE CONTRACT
iPLEj^IDHSra-S
McCarthy, osler, hoskin & creelman,
Plaintiffs' Solicitors.
WELLS & MacMURCHY,
Defendants' Solicitors.
TORONTO :
PRINTED AT THE MAIL JOB DEPARTMENT
1889
C67
*/ d
INDEX.
33 MILE CONTRACT.
Sr.vi'EMKXT OF Claim •■'*o«
Statkment of Defenok and ('oijnteuclaim I,
Repkv "^
••'■• , If
Repi,v to Amended Statement of Defence \l
1)EFEN(JE TO Amended Countehclaim ly
20 MILE CONTRACT.
Statement of Claim
Phoposed Amendment to Statement of Claim
Statement of I)efenc:k ...
90
Joinder of Is.sue an« Rh>lv J:
Zo
TIE CONTRACT.
State.ment of Claim
, 9J,
Statement of Defence
Joinder ^^
25
In the Hiirh Court of Justice
QUEHX'S BHNCII DIVISION.
Between
Wi'it issued fclie 5tli day of Oetobi-r, 18.S5.
coNiViEE & McLennan,
AND
Plaint if 8.
rHE CANADIAN PACIFIC RAILWAY COMPANY,
Defendants.
STATEMENT OF CLAIM.
10
1. The plaintiffs are contractors, resident at the Town of Port Arthur.
2. The defendants' railway company is a corporation duly incorporated by an Act of the
Parliament of the Dominion of Can ad i, passed in the 44tli year of the reiyn of Her Majesty
Queen Victoria, and chaptered one.
3. The ohject of tlie said corporation wns to construct a line of railway connecting the sea-
board of British Columbia with the railway .^system of Canada.
4. In order the more easily and effectually to carry out the construction of the said railway,
and for the purposes of the defendant corporation only, a charter was obtained by the defen-
dant company for a corporation .,'alieil the North American Railway Contracting Company, the
name of which latter corporation was used by the said defendant railway company in entering .^q
into contracts for the construction and ecpnpment of the said railway.
5. On or about the ;h-d day of September, A. Yi. 1883, the said plaintiffs entered into a contract
with the said " The North American Contracting Company," acting for and on behalf of the
defendant railway company, wliich contract has subseciuently been adopted, ratified, assumed
aii.l iictfil iijMm liy t\\v. (lefcii.Imit railway company, uii.l which contract amonjrst othi-r provi-
sions (to which the plaintirts for jrrcater certainty beg Icavo to r.-IVr when pnxluccd to this
lionoialih- Court) contained tlie following,': —
That the specification annex.'d to tlie said contract marked 'A," and the accepted tendci
unnoxed niarl<ed " 11," and tlie several parts of tlie contract, siionid >«' tal<( ii to;,'etl)er to explain
each other, an.l to make the whole consistent ; and .should it be found that anything,' had been
omitted or .nis-stat.'.l, which was neces.-ary for the proju-r perfornwinco and completion of any
part of tlie work contemplated, tlw contractors should at their own expi-nse exeeute the same as
if it had been properly describ.-d, and the .lecision of the manaevr was to lie final /is to any such
error or omission, and the correction of any such eiior or issiun shoidd not be deemed to be 10
an addition to or deviation fiom the works thereby contracted for.
(!. Jiy such contract, the contractors (the plaintiHs) were to furnish all labor, machinery
Iilant, articles and things necessary for the execnt ion (.r the work referred to in .said specitica-
tiona, and in the i)lans und profiles therein referred to as prepared :)r to be prepared for the
I)ur])Oses of the work.
7. The sidd work was by the .saiii specilication described as tin; work upc.n Mag])ie Riv.^r
Station, No. 5440, to the east end of division of that portion of the Canadian Pacific Railway
between Nepigon and Michipicoten, a distance of thirty-tliree nnie.s or therealnuits.
-S. By the .said contract tli(^ word "mnnntr,.r" wh.'i'ever u.sed sliould mean the manager of
constructi.^n for the time being having control of the work, and should exten.l to and include ^o
any of his assistant.s acting under his instructions, and all instructions, dirc^ctions or certificate,-? "
given (..• d.'cisions made by any one acting for him, or of the engineer, should be .subject to his
approval, and might l)e cancelled, altered, modified or changed by him.
!). The .said manager was also by the .said contract permitted at any time before the com-
mencement of the work, or during its eon.struction, to order any work to be done or to make any
changes wliich he deemed expedii^nt in the grades. The manager also to be at liberty to give
an3- orders he de,;med fit as to cuttings or fillings, dimensions, character, nature, location or
position of work, the price to be according to the tender forming part of the contract where such
class of work was specified.
10. The manager by the said contract was constituted the .sole judge of work and material ^q
ni respect of both (juantity and quality; and his decisions as to woi-k or material, or the meanincr'
or uitention of the contract, plans, profiles, specificati*,ns and drawings to be final. "
11. The manager's decision was also made Hnal and conclusive in reference to what work,
labor, material, tools and plant v/ere included in any price.
12. By the said contract it was further agreed the plaintiffs should be paid of the prices
named in .said tender, ninety pe • cent, in cash of the value of work done on the nro-rcss tsti-
mates of the manager, the balance to be paid on completion of the work to the satisfaction of
the manager.
U. The contract furtlier provided for the plaintiffs being di.s.satisfied with the manacrer's
certificates, and for the method of appeal therefrom. " a(^
14. The work has within the time, intent and meaning of the .said contracts, specifications
tenders, plans and profiles been long since completed, a.id the said manager has expresseil him-
.self as satisfied with tlu; same, and has passed the final estimates of the plaintifii^ for such work •
but the defendants have restrained the said manager from granting his .said certificate, and have'
wrongfully ordered the .said manager not to sign or grant the same.
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15. All tliingH Imve liivppi.no.l oth.«r ihaii tlm ^mutiiiK of sucl. cntilioat.- afore.- M, and nil
times elaim.Ml ami ull thiii^h Im-oii porfoniio.! not. H.sary to oiititlo tlu* plaintiHs to lie ivpai.i fcr
tlM'ir w.rk s(. (lone for tlm .IffriMlniit railway ouipany an.l nm.pte.I l,y ilwiv nn<l now hving
used hy tliniii. yet tlio deft ndant railway company have for a Ion;; tinir wron^d'nlly witlilnld
from til.- plaintitls lar;?.; .sums of mon.-y dw under such |>ro;.rr.-.s.s and (ituil <',stimute and the
plaintiffs claim payment of tlui Hamu, tojfcther with intfrcnt npon all sums from the date when
j.ropeily payal.Ii' an-' wroii^d'ully withh-l I, .iinonntin^' in all to the ,sinn of «:{()0,()()(), l„.i,„r
SJ27!»,00() for ini|)a.d pri'Kiipal and !!52l,()0() fur unpaid inti-rest.
I(i. And for a further cause of action, the phdntiUs .say that nt the n.pie.st, an.l upon tho
order and .lirections of the dcfen.hn.ts' proper oUieer in that hehalf. the plaintiffk l.uilt an.. |()
completed a r.w,d from the 1,as(. of siip;.h'es for the defendants' railway cotnpany to tho lin.' of
railway which was taken over and accepted l.y the railway company aiul u.sed l,y them, nnd
upon which a I.alance remains payahle to the piaintitl's of SI,(iO(». of all of which .sums and
interest thereon the plaintiffs pray payment ; ami the plaintiffs further .say that wlien thengree-
meiit was made for the huildini; of this said roid the .said mann^rcr a;r,ved with the plaintiHs
that should the nature ..f th.. work he fnun.l to he such that a greater allowance shoidd he made
than thai aeree.l upon, upon the nature of tin- ground has.id upon the r.^pr.'.sentations as such wre
then made up.ai which tin- ahove Imlance is due, that he wouhl go over the saiee and make .such
allow lice. irp„n this conditicm the plaintifKs carried on the • -Md work to completion and the
sai.l manager went over it and insprrted it and agree-l ^ ..,.„w plaintiffs for .same a sum of'JO
*l(i,0()() further than that returned in the estin.ates, tnd the piaintiffs therefore claim payment of "
the sai<l sum.
17. And for a further cau.se ol aetic.n tlu; i)laintilf:s say that tho .hd'endants, hy their mnna-'er
of C(mstruction and tlieir officers d dy (pialitie.l to make .sneli an agreement, agreed with the
l)laintiHs over and heyond the contract refenvd to that they, the defendants, would furnish fioni
time to time, and not later than the close of navigation f„r the fall of IHH'.i, to wit, prior to the
1st day of Novemlier of that year, the neee.s.sary plant, provisions, tools and .supplies for not less
than .SOO men fora term of twelve months.toenai.le the plaintiffs to carry on the .said contract, and
also agreed to supply, not later than the close oF navigation, to wit, the 1st of Novemher, LS.S.%
and deliver at the Micliipicoten River, on a dock to he erected hy the defendants, 100 tons of so
hacon, 200 tuns of hay and 30,000 husliels of oats, for the use of the said plaintiHk in and al.out
the ,sai<l work.
18. The plaintiffs say tliat the defendants did not deliver a.s agreed the said .supplies dui-in.^
the season of n.vigation as aforesaid, to the great loss of the plaintiffs, causing them to expend
large sums of money in <.btainii!g .such supplh-s', h<.th from the fact that they had to pay exor-
bitant rates for such .sui)plies, the season of navigation having closed, and also were unable to
ship the same to the delivery points upm the line of w.adc during the winter of 1.S.S4, and were
put to an enormous expen.se in hauling .said .supplies to the line of work .luiing the .spring an.l
sunnner of 1.S,S4, and also l.,st a great number .)f supplies en.leavoriiig to get tlie .same in^after
the close of navigation, including the cargoe? of two barges, namely, the " Enterprise " and the j,n
" Kincar.line," an.l \oy^ a great number ..f Imrses owing to such non-delivery, the defendants
Iruing ha.l n.)tice, mu.I well knowing that such jo.sses w.nUd and were likely to ..ccur ; an.l the
plaintiffs claim for the extra cost of hauling the necessary supplies, etc., the .sum of Si 50,000
also for a rea,sonable poiiion of the cjst of constructing a roa.l which had to he built for the'
purpose of summer .leliv.ry, along the line . f n.a.l, re.ider..<l necessary as aforesaid by the afore-
said non-lehvery, an.l which the defea.lants w.ail.l have had to make for other purposes
connectKl with tl.eir line an J whicl. they use.l continually, the sum of $.%.500,and for the loss of
supplies on sai.l l.ai-ges the sun. of .«8,000, in all the sum of !^1 61 nOO
m The pkintitts further say that the .ief.n.lants agree.l to n.aintain at the landing place at
2!). The plaintiffs say that l.y reason of the non-erection a.id maintenance of a proper and
sufteient dock tor the unlading of supplies at Michipicoten as agreed by th I^LTnts "e
phun^tls were oh hged to and did incur la.^e expense in the han.Uing of goods to tTe^^o
.^.S.OOO and ost a arge nu.nher of supplies which were washed away through the non-ex Xn
21 The plaintiffs fiu-ther say that .luring the continuance of the contract the .lefendants
'1-nnnl up he waters ot ])og Lake and Manitou i, ke so as to create a serious flood wro "^^
an I agamstthe r.ghts of the ph.intiffs, whereby a nund,er of can.ps, store houses c^Hftl^
P un ,«s were washed away and Hooded, an.l whereby the line of rill way was Ho.' led In
p a,nt.Hs thereby prevented from working the said line, entail" • a large amount o^" los. bo h t "
U e sau ca,nps an.l store h.>uses an.l the supplies contained therein, and loss caused bv the flood-
m> ot tlH hue as atoresmd, an.l the planitiffs claim therefor the suiu of .<^8,000 .laniac'res
22. Ihe pimntiffs farther say that they at the request of the defen.lants sinndied them
..several tents for the use of tl. troops then being transported by the said railway ^.^ 20
to the seat of the rebellion ,n the North- West Territories of Canada
tlu.mt le slim :" lo^ "'^^ '^^ ''' ''''''' '' ''''' *^"^" ^'^ '^'^^'-^^ - -^^''^ed to
24. An.l the plaintiffs further say that the defendants further agreed to have the work on
he hne referred o ,n the saul contract rea.ly to be procee.lo.l with by the first day of October
18,S.3, at the latest an.l as an in.lueement to enter into the said contract, and as an a^reemenfi
ZoTsiSoO ^""'"''' *'"' "" '^'' ""■' "P"'^ ''''' ^-''''''' wouhlamouTittotL
2o. The plaintiffs further say that owing to the non-location of the said line, the plaintiffs
were delayed t<n- a long time in the commencement of the work, having pr..pare.l fo:- such com- ,o
mencement at and before the sai.l period as the defendants well knew, and had fathered
together a large number of men, to wit, 600 or thereabouts, who were thereby kept idle for a
long time an. under wages from the plaintiHs, and the plaintiffs were also by relvson of the
d..fendans de ay in location of said line, obliged to carry on the said work durin. the
winters of 1884 and 1885, putting them at a great lo,ss and e.xtra expenses, among other Items
of extra expense, o larg.- expemlitur.-s for the removal of ice an.l snow ; and^the plaintiffs
.uither say that after the location of the sai.l line in a number of places where Hllings Ld been
agreed upon, and after the work ha,l proceeded f.n' about nine months an.l the plaintiffs had
made all preparations to carry it out as propose.l an.l had sub-let the work so struck out the
defen.lants ,ntro.luce.l trestle work, cutting down the amount of the said contract which' the 40
planit.ffs had at a much greater expense than woul.l have been necessary pivpare.l themselves
tor, up..n the basis of the agreement for such g;<)ss,.xpenditure of $1,750,000. an.l the .lefen.lants
also at various places narrowed banks an.l cuts an.l lowered gra.le. thereby also reducii... the
work, entaihns a very great loss of plant, and upon the extra materh, . and supplies, the plai",tiHs
having on hail. ..n the faith of such agreeu.eut a much larger q, atity of plant an.l supplies
than was foun.l necessary for the completion of the said work, an.l the plaintiffs claim f.n- the
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cutting down of such contracts reasonalilo profit upon the amount, nanioly the su:.i of $100,000,
and for the loss of phint, supplies, etc., tlic stun of iJi^oO.OOO, and for the removal of snow and ice
during the winter of 1.S84 tlie sum of So.OOO.
25 («.) And the plaintiffs say that owing to tlie changes made in. alignment over the portion
of the work covered by their said contract, after they had made all arrangements to connnence
work and employed men for same, the (pianlity of work was very considerably reduced from the
sai.l estimate of iii!l,7.)(),000, thereby causing a reduction of some 100,000 yards of work and
delaying the location of the line, thus throwing the plaintiffs' men idle and disorganizing their
forces, thus causing great loss and damage to then), anil the plaintiffs claim on account of th-
said reduction in amount of work, a reasonable profit on the amount of such reduction, for which, 10
together with the loss surtered by reason of such ielay, tlicy now claim the sum of $20,000.
26. The plaintiffs further say that owing to the non-payment of the cash on the progi-ess
estimates as stipulated in the contract wrongfully and maliciously by the defendants, the
plaintiffs were put to large expense in the raising of money for the purpose of buying supplies,
and were largely danuiified by strikes occurring upon the said works amongst the laborers, and
were obliged to borrow money at high and exorbitant rate of interest, which the defendants
well knew were likely to occur, and on account of which the plaintiffs claim the sum of
$75,000.
27. The defendants allege that the certificates of the said engineers under the contract are
not binding and conclusive upon them, and should the Court be of opinion that such was the 20
case, and that the parties were at large upim the contract, the plaintiffs claim that the work
done was worth on a classification, such as they always claimed, the sum of $282,500 more than
the classification of the engineers in charge under the contract gives them by the said certificates,
and in case the Court should hold that the said certificates were not binding, the plaintiffs claim
the said amount of classification extra for the said work done.
28. By an order of the Divisional Court of the Common Pleas Division of this Honorable Court
made on the 2nd day of January, 188(J, in a certain action in the said Division, and wherein the
parties hereto were parties thereto respectively, it was ordered, reinstating the order of the
Master in Chambers made in said action on the 23rd of December, 1885, that the plaintirts' said
action be stayed and that they set up by way of defence, set ofi' on counterclaim to an action 30
in the Chancery Division of this Honorable Court brought by the said defendants against the'
said plaintift's, which action has since been stayed, all their claim in said first mention^ed action,
and these plaintifi's for a further cause of action therefore .say :—
29. Between the IHth of July, .1885, and llth Septem'ber, 188.-, the plaintifi's supplied the
defendants, at their request, with explosives, the delivery of which was as follows :—
July 13th, 1 885 (JOO lbs. Dualiu @ 40c $240 00
4 Coils Fuse (a 45c 1 80
July 81st, 1885 2,400 lbs. Dynamite, 50%, @ 40c 900 00
200 lbs. Dynamite, 40%, @ 35c 70 00
500 lbs. Dynamite, 30%, @ 30c 150 00
August 3rd, 1885 300 lb.s. Dynamite, 30%, @ 30c 90 00
August 31st, 1885 900 lbs. Dualin @ 40c ° 360 00
2,100 lbs. Dynamite, 50%, @ 45c 945 00
September llth, 1885 300 lbs. Dualin @ 40c .". 120 00
40
$2,936 80
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.30. Tlic plaiiitifis also in March Inst sold to tiio defendants a lot of camps and stables, etc.,
at and for the price of $200.
31. All of the above goods were received and accepted by the defendants on the dates above
mentioned.
32. The defendants throujrh their agents have always admitted, and never denied, the
correctness of the above acconnt and their lial)ility for tlie amount of .same, but they have
always put off the plaintiffs and postponed payment of the above amount thoui;h fre(juently
asked and pressed by plaintiH's to pay it.
33. The defendants have ne\er paid any of the above amount, and the full sum thereof,
namely, ^3,136.80, is still due and payable to the plaintiffs. 10
34. The plaintiffs claim the said sum of S3,13U.80, with interest from the dates of delivery of
above goods, and costs.
3."). And the plaintiffs further claim that should the Court hold that the payments made on
account to the plaintiffs by the defendants, as above set out, do not cover and a^.. not to be
applied in liquidation of any amoimts outside of this contract, and which the 2)laintifi;s have so
applied on the following amounts, which were paya1)le at the time the payments were made,
then the plaintiff's as a further claim .say that they are entitled to the payment of the followino'
amounts, viz. : —
I. On account of a certain supply road mentioned hereinbefore, which the plaintiffs agreed
with the manager acting on behalf of the company to construct for the said company and for 20
which they were {)romised payment by the said manager for the company, and which amount
has as above been admitted by the said manager and the other officers of the company who had
charge of the work to be done, the sum of $87,105.57.
IL On account of goods supplied to the Canadian Pacific Railway for their use and at their
request at lied Rock, Michipicoten and ]:>c4Lake, and accepted by them, and the bills for which
were passed and certified to in their office Hy the proper officer in that behalf and thus admitted
by the said company, the sum of .'ii!2, 194.37.
III. On account of supplies, labor and cash furnished at the defendants' request to the Dog
Lake Ho.spital, which hospital belonged to the Canadian Pacific Railway and was managed bv
them, and which goods were received and accepted by them and the bills^for same admitted and 30
certified to, the amount of $4,453.03.
IV. On account of orders given on the Canadian Pacific Railway and accepted by them by
Boland & Savage for the sum of 1^1,175 ; by W. J. Connolly, the sum of $150.50 ; by Joseph
Whalen, the sum of $200 ; by James Winstan, the sum of $401.75 ; by J. A. McRae, the .sum of
$101.03, in all the sum of $2,088.88.
V. On account of supplies furni.shed and labor performed by the engineering department of
the Canadian Pacific Railway at their rec^uist, and the several amounts of which have always
been admitted to be due by the said company, and the total amount of which is $12,041.31.
VI. On account of explosive and other goods delivered to David Ogilvy for the defendant
company, at their recpiest acting for the said company, and received and accepted by them for 49
the said company, and the amounts of the bills for which have always been admitted by the
defendants, a sum of $5,347.
VII. On account of explosives used in blasting hard pan on the work under the said con-
tract, and the amount for which has been certified to and allowed by the proper officers of the
company, the sum of $0,957.80.
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VIIT. On account of supplies und labor furnished and frtijrht carried for the telecrraph
department of the defendant company at the re(|uest r,f the company, and which supplii* and
labor have been received and accepted by the .lefendant company, and the change therefor
adnntted and certiHed to, as is also the charyo for the said carriage of freight, the sum of
IX. On account of goods ami board furnished and iivl^ht carried for the employees of the
defendant company working on construction of Dog Lake Hospital, and which were furnished
and earned for said emi)loyees at re.juest of defendant company, and the account fo.- which
has been admitted ami allowed by them, the sum of Sl.OSO.Mf).
X. On account of freighting done by the plaintiffs' tug "Silver Spray" for the said .lefend- 10
ants at their request, and supplies delivered to her while used by tlie said defendants on the
defendants' order, and the amount of which has been admitted by them to be due, the sum of
$1,587.00.
XI. On account of overcharge on 11 carloads of goods carried from Dog Lake to Port
.'Vrtliur by defendants for plaintitts in Augu.st, 1885, the sum of $110.
The plaintitts propose that this action be tried at Toronto.
STATEMENT OF DEFENCE AND COUNTERCLAIM.
1. The defendants admit the 1st, 2nd and 3rd paragraphs of the Statement of Claim
2. The .l.-fendants say that by the terms and conditions ot the contract and agreement
mentioned ni the said Statement of Clain,, progress measuren.ents and estimates of the M^ork 20
under the sai,! contract were to be furnishe.l monthly, with the written certificate of the
manager that Lne work for and on account of which the certificate was granted had been duly
executed to h.s satisfaction, and stating the value of such work computed at the prices agreed
upon or determined under the provisions of the contract.
3. The defendants further say that no such certificates were ever made or granted by the
manager, and that although certain papers purporting to be approximate measurement; and
estimates were from tnne to time presented to the manager, the san.e were never certified to by
him in accordance with the terms and conditions of the said contract, and no proper or valid
measurements and estimates of tlie work done by the plaintiffs as required by the said contract
have ever been presented or received by the defetidants. 30
4. The defemlants further say U.at the said pretended approximate measurements and cer-
tificates were and are false and fraudulent, and therein the n,easurements and classification of
work pre ended to have been done by the plaintiffs were largely overestimated and stated, and
thereby it is made to appear that the plaintiffs had done and executed a much greater amount
erf;'';r r'" i'"''; •^''"'''" ""'"""'"*■ ""^*^""^'^' ^'^^^ ^^^^ actuaUvthe fact,havin.
lega d to the erms and conditions of the said contract ; and that the plaintifik were entitle.l to
be paid much larger sums of n.oney than, having regard to the terms and conditions of the said
contract, they were justly and truly entitled to receive.
5. Tlie .said pretended measurements and esti.nates were and are false and fraudulent a«
aforesaid to the knowledge of the plaintiffs, and they were made and furnished at their instanL^ 40
and by persons acting collusively and in connivance with the plaintiffs
6. The defendants further say that they have paid the plaintiffs for all the work justly and
truly performed, done and executed by them under the said contract or otherwise.
th
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the Jt,.":::f J,'",;:-: ' "'" """'■"'-" """"'""' ■" '"» »"■■ '••"" -'' '«'■ .-'«™. >■
«g.-,oJ t» oxceute ,.,„1 fully > , c , " ' , ,';','"" '"':■' ^'""™'' ""-' ™"'"'"'°'-»
„ ,p. , , ■>, I"' ■'''.' '''y » '""liii iiMiic'cl till. \v(>rk tK-rc II ,lcsci-il.cJ
pan, per cubic yaid, 80 cents- f.„. c,.,„ !;„ ? f , ' '^ , '■" >'"'''■ "^ °"'"i '"'' '""'l
in the saia contract, an. L:t t : ^ ^f/; .f;;':^^'^^'"-^'^''?
iletendants ha.l been parties thereto f,™ ' ' ' "\""'""»''f >1™"I and aele.l upon n» if the 30
the .aid North Anreriln^Ii*:^ cJZtt ^:^' '"" '"^ ""'"»■' "'= » ■»*»<' "'
this contract and the plan. .T.d prohle,,. Z^SIl^^^^^l^ ^J^:^::C,:Zl"''^ "'*'
works, or extra or additional works or clian-e, ,h.dl I,, I ''*>' '""' '« *""' • '^<"> 10
shall the contractors he entitled to ,LZon t t^ '" '""■*-• '"™ '•~^«-"'«l. "«■
directed in writing as he," „reLenr.^^^ T","' ""''"' "" "'""" *°" '""•« '■«■>
as evidenced by hFs stlltrc , Z " » ' l" """^ ' -tisf.etion of the .nanager,
the right of th^econtrrr;'i;rL::^;:..''rrti;:::';:;der;::;:" -"-^
H
"2i). Cash payments equal to f)0 per cent, of the value of the work dono, approximately
made up from returns of pi'i^ress measiinMn-iitH, and eomputed at the prices ii;,M'ee(l upon or
determined under the pruvisionM of this eontriiet, will lie made to tiie contriictorH niontidy, on
the written certificate of the manager, that the work for or on account of which the certiHcato
is granted has heen duly executed to his satisfaction, and stating the value of such work com-
puted as above-mentioned, ami such condition shall be a condition pric(<ient to the rif>ht of
the contractors to be puid the said !)0 ]m- cent, or any part thereof. The remaining 10 per
cent, shall be retained until the final completion of the whoh? work to the satisfaction of the
manager; umi within two months after the eompletion, tlie remaining 10 \n:v cent, will be paid.
And it is herel)y tieelared that the written et-itiHcate of the manager, certifying to the final 10
completion of said works to his satisfaction, shall be o condition precedent to the ri<dit of the
contractors to receive or to be paid t'ne said remaining 10 per cent, or any part thereof." And
it is ah'o provided that :
"20. The progress measurements and ecrtificates shall not in any respect be taken as an
acceptance of the work or release of the emitractors from responsibility in resp<'et thereof, but
they shall at the conchision of the work, deliver over tlie same in good order, according to the
true intou*'' m and meaning of this contract."
15. Upon assuming the podtion of manasrer of construction, the said John Ross established
an office at Port Arthur, being the western end of the said section, and from thence carried on
his supervision and management of tlie s lid works ; and for the pnrpo.se of carrying them on, the 20
defundants from time to time furnished him with large sums of numey, to be paid to the various
contractors upon the said section, relying upon the perfoimaiiee by the .said John Ko.ss of the
duties imposed upon him of ascertairdng and certifying that all work on which payments were
made by him had been executed to l.l.s satisfaction, and also ascertaining and eertifyin<' the
value of such work. And that from and out of the moneys ,so remitted to him, the said'john
Ross paid to the plaintiff's Conmeo k McLennan the sum of §1,427,089.74; but as the
defendants have since ascertained, ami as the fact is, without having ascertained or certified to
the character of the work alleged to be done, or to its value.
16. The defendants oidy discovered that the said John Ro.ss had made the said payments to
the said plaintiffs Conmee & McLennan, and that he had done so without any veriHcation orJJO
certificate being provided by him of the work done or of its value, after the termination of the '
engagement of the said John Ross, on the completion of the said work, to wit, in or about the
month of August last, when tlie papers, accounts and documents were removed from his office
at Port Arthur, and transmitted to defendants' head office at Montreal.
^ 17. The said approximate estimates purport to show tliat the aggregate amount of work
performed under the said contract, being the whole work contracted for as aforesaid, was :—
Solid trap rock excavations under three feet deep, 38,770 cubic
yards, at S3.40 per cubic yard §131,838.40
bohd trap rock in excavations over throe feet deep, 179,855, at
,,. *^^?; •. : '....'... 503,594.00
Mica schist ni excavations, 25,192 cubic yards, at S2.75 69,278 00 *"
Granite in excavations, 19,383 cubic yards, at 82.20 ". . . . . 42 642 60
Loose lock in excavations, 241,278 cubic yards, at 81.10 . . 265,405.80
Earth, ordinary in excavations, 266,973 cubic yards, at 38 cents 101 449 74
Earth stripiiing, 11,774 cubic yards, at 42 cents 4,945 08
Earth in muskeg, including removal of snow, ice, grub, etc.",
61,558 Cubic yards, at 33 cents 20 314 14
Hard pan i^ -^rcavations, 203,979 cubic yards, at 80 cents! . . . . 184 783 20
Cemeuted gi^.el in excavations, 23,396 cubic yards, at 75 cents 17i547.00
40
$1,341,797.96
It
c.rkifl!'l T'" ' '*' "'T" ''''""^" '"""'?'""• ^"'■"''''"' *" *^^ 'l«fo».l«„tH as «fore«ni,l, appear to \^
cert.H ..I o as , re.t, „. sonu- .as-s hy o„.. VV. M. .IoIl,u..|, for the ..„gi.u.er i,. .Uar.l, in som!
«H m.gn.et.r in vnnr^o. In no can. avo. t\u-y ....rtiti...! t., or si.n.xl hv tlw n n ll ' m
conKtruotion po.Honally.altlu.uKh in a few cJ. tl.enan.e of John iLl , i n . •/ 3.1; "
,>..n>..r^^to..si^...., tl...M..,,-on..Tl U. NfoHat, a.l in no el ' f J ;:^ ^
ot lu, SHwl John KoH. t atth.. ..i.l wo,.i<. for ..on a.vonn. of whi.h th. s.i.l .v.tifi"ftr' ^
..^havo ..en .granted, ha.) h..n .h.ly cxocut..! to hin natLsfuetion and .statin, the v.l.' ."'C
«aid !;;p:;:i;:ttr;::;':;;;r
Z'TT'T" H f«-"'r^^" "^- '<' ''nK..onsif^:;;n;l::, ;:;:;;:, :;;;;t;z
an,] th. la.- ..s, tha tho sa.d ,.stin,at,.s .show ai-ont 200,000 cnbic yards n.oro than t u sa
w..rk aetnally contain.nl. an.l that thcv w..,v ,,,„,.« .,f ,he n..,st s.M-i.a.s ,L t 7 a
ration of th. work. Tho partL-nlar. ..f th.- s.i.l .rn.r,s =:: 1 "!!'' : fe ^U^ *'"' "'r^^'^-
d:;r;;^^rr.:;^" -'•-— ^<'rv.,dnpon t.. iziSrr;:::^
;:^;;t::ir;;i:t;t,t;:;^::r:'^:^^.,:^^^^
payahh. to tJ.-n. in .vsp.ct theivofis only S7,S7 1( 7 •>. ' '"' ";.';;:""*^ .I"'^tly an.l truly
™cl, <Iclo,-,„i„„tio„, ,u„l i„ t„rt,,e,-„„c;il,c,.c.„f p «" t , t ■, r '," ,'""■"'"""' "'
and become ontitlcl t. n,uC "ii c , , 1 , , ,' . "T" ,"■'"':'' ""^' '""■'■' P^P^'-'J' '■■'"■"«<i
t:
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trnof !: f T P'°'''/"' '^"*^ •■ " ^'^"'^^ constructed for the convenience of the con-
a tors for the eonvoyarce of n.atcrials or otherwise, must beat their own risk cos and
c arge ; whereas the sau approxi.nate cstin.ates embrace, and the said contractors have been
a lowed and pa..l for supply roads made solely for their own convenience, at least ths^m of
.^40,000, and tor repairs to same about .$9,000, and for docks built at nnrf«rr»l ,, ""' "*
roads *5,4f)0, and for tu,,s for the conveyance of contractors' sup^i "^'^ ^iTf'"'' '':"'
to the said tugs .$2.8.1, and also large sums for n.akingdams. h:^^ :l^^::tr^:\2Z
scows, all of which work amounting to over .$90,000, as the contractors wel knew w^^f
ho,r sole conven.once in the conveyance of their supplies, and should, under the x pre s terms o
the said contract, have been made at their own "risk cost and ch«rr^.« " n , ^.^''P'^'^f. '^""■'' »*
2.5. T; '• said conti-act also provides that the contractors ivill nt fi •
estimates, but iievcrtbcless the d,.f, ,„, ,.f '»*;"' '^"° ^^^cuiacy ot the said approximate
The defendants by way of counterclaim claim •
^^ ^1= :i:— ;: :? - s- — ^ - ^;^....^
o. lliiit an account may be taken of *■]•<■ vnln,> ,>p ;.i i i- , .
niee & McLennan are justlv and t X e t itied to 1 ''"""^'^ f^, -'-'' ^he plaintitfs Con-
..e,amti.m,. ;l.....,;U;:^^^^^^^^
.5^ And that the plaintiffs may be ordered to pay the defendants' costs
inclusive. " ""'"P"'''''' ^^'thin the paragraphs L5 to 3.5 thereof, both 40
2,S. In reply to paragraphs numbers Hi, 17, IS, I!) 20 "4 9^ 9^ /^^ or- , o- .,
ants say that they never entered into the .uv, , ' ^ ^' "'' ''"'"' ^•^' ^'c defend-
the offieerswithllumitl"!^ e I J r'1 ""''""^'^ "'"•^''" ^^* -^' -'' that
authority to enter into the sa;;;::j;;U!!;^^;i^>::::^i:;:;;-^^ --'^ "-< no power or
14
taiutho whole agreement between tlio oni-tios „i,.l tl,„t ,1,, ° " ' '"' ""'It'istooil to con-
a...v,.,„ent.s therein contah.ed slioul^ L t , l" I ''""" """'™"'' ''''™"»"'-^ "■'
Stat "ei:; :z:. :::':;:Lr ■ :: ti::r!;r ,^„is.r ;,'""'ir' -^ "•» -™"'"
bef„re referrc.l to, it h nroviJe.l tl,-,t , v,..-, , 1 ! , • ? "■■ "■'■""'" ~"'"'=' l"»i"- 10
entitle! .„„„h, bo;.n,Wr:,,e 1 :/,.:' :™^^^^^^^^^^^^ -WW '-riy ta
tor, at any time have chiims of anv ,hl,tV "'"""l.\ «■'"":»'», but tiiat should the contrac-
pn«,.e.s, oertihcate, it w^^U Z^:^:^^ ^:::;1"''r'l T "'*''^"' '" "'«
tlK- manager .-ithin U ,,a,, iron, the ^dtsZ^Z^I^^':::;' ZtZ^i:'::^'^"''^ '°
snch clanas to have beeh on.itlej, anj the ,leten,Iant, sav ll„r ) 1 « '"'^ "ny aljese
nnder the »aid written contract do not =001,,^ 1 , " '"■"''"■'" ">"■«»''■» i«™ed
in,, to the n,ana,.„. a, prov d«l I tt ° h "7 "■ '"" ""''"' "'" ■"""" "'"™ '" «■"'-
»«i»faetorv evidence orthdrclc', ">'""";•"<>■■ "«■'« »'«!■ «!»""» aecon.panied with
".■ t..o wori, in con.. :e:::':;;::r ;„ rT;t . r :;•",! .*;;,;"::"■ 'tr '"'r"-
contract the same l,eca„ie forever barred " ""-' """' "■""«" 20
State!,',;.,;!:]',:,;; Tz"z.!:>!7f"^V!'- "• '"■ ■» •■■"' ^" ■■' "- '-""i-i
provided that the pHe.:: n't;;- 1;:' V;',,' ^ h^int .^"rr "ti: rr" "■;■'?" n ""■°°' '' ■■»
and every kind of worl,-. laho,- tool, a„,I „I„ , , «''«''«■ "to annexe.l shonW inehi.lc all
.^-y .'or the ,,,1 ...eonti;,,, and^ c^l^^lLrS'ln™'-;:* ^' «'^"«» -'■— --
»«yttatlh;;s„:;;,!:"z;::;;,;i!w;:™::;,f't'n'' n "'""'"" "''™^-" "-"-
tion 15 of tl, »i,l u-ritten »nlra i „. Z , ■ , /^ " " "' '"■""•*•«•»■ ""'l »i» that by sec-
all lo« or da,na„e whatsoevc t I Iv hall ^ ' """""'t"" »'"'" '- "t H'» risk of
and delivered to'and t::;^ b;t„:X:;;: ""° "™'"« ""'" "'» -* " '""^ -*'«'"• 30
.■ore chibite,. npon the p.ui";;.;;';,',:' ":; :;:'■«,;' i:,!:::™::;,',';:";:^'""';"" '"'■'■1'-
n^cHy at a.,y ti,„e befo,.e rirc:m,;;::::;;e: :: ; ;: i;;:: :: ;^^^^^^
ton contract, that the sa.'e sb a 1 „ I ^ p'"" T' M " "'" ''""'''"'' ''J' "'" «"'l "■"'■
M. The dete, ,- l^,rt e Iv th t be " "' '"' "' "'" """■-'»■■»•
Staten,ent of Clai,n, and the v^ril ,.',:.; Z'Z:!^- "'„' :", I" "■" ■"'''' »'""■"'"'
as provided by the said written contact ""'"'"-' '°' "'''^ ""' "' '"'"■'"«.
15
37. The tlefondants further say tlmt the prices agreed to be paid to the plaintiffs for work
done under the written contract, as shown by the list or schedule thereto annexed, were much
larger than the prjces usually allowed for sinnlar work, and the defendants further say that the
said large prices were so agreed upon to cover every possible contingency, such as the difficulty
of getting supplies and the building of roads and other matters set up in the said amended
htatement of Claim.
38. The defendants further say that the .said written contract bars and precludes any re-
covery by the plaintiffs in respect of the claims sued on in the said amended Statement of Claim
and the defen, ants crave leave to refer to the several provisions of the said written contract
applicable to tiie said claims as if specifically pleaded thereto respectively
39. And by way of counterclaim to the plaintittV amendments to their Statement of Claim
the defendants .say that in and by the said written contract it is provided that the plaintiffs
should execute and construct the works therein referred to in a good an<l sufficient workman-
like manner ready for use by the defendants, yet the plaintiffs failed to perform the said
contract, and constructed the said works in a careless and improper manner, and did not com-
S Ibt tbr' r"f; abandoned and left the same in an incomplete condition, unready for
use by the defendants, and the defendants aver, as the fact is, that they were put to great
12ZI" --P e -g the said works and making the same ready for use as provkled by the
said contiact, and the defendants claim in respect thereof the sum of $100 000
40. And for a further counterclaim the defendants say that in and by the' said written con- 90
tract It IS provided that should material be wasted from cuttings or borrow pits, witlTout specTal
of the estimates, and the defendants ver, as the fact is, that the plaintiffs without such permis-
:z^^:^iZz:j^^ '"'-' ^-^"-^-^ ^^^ '--- '-''- -^ *^^ ^^^-^-*« ^^^- -
.nil ^•'' "^"fwu *" w "'?"" '=*^""*'^'-«'^»» the defendants say that the plaintiffs improperly and in
coilu.sion with the defendants' officers procured the said officers or some of them L Lue to he
plaintiffs estimates or certificates for work alleged to have been done bv the plaintif^^ und 1
aid written contract and otherwise, but which said work had not been^one as t e d
fendan ts will show whereby the defendants were obliged to re-measure and re-ckss v tie ,n
excavations upon the said works, in order to ascertain the actual work done, and were tl ilrebv
put to much damage and expense, and the defen.lants cldm in respect thereof the sum of $20 OOO- '
Hi
REPLY.
1. The pkintifls join issue upon the amended Statement of Defence of the defendants
2. And by way of reply to tl.e said Statement of Defence and Counterclaim of the defend-
ants the plaintiffs say : —
8. That they entered into tlu, contract Mith the North American Railway Contracting
Company, who, as the plaintiHs allege, were nuTely the agents of the defendants in makin<rthe
said contract, the said Jolm Ross heing at sucli time manager of construction of the det'end-
ants.
4. The plaintiffs say that in the said contract it is provided that where the word
manager ,s used the same shall mean the manager of construction for the time being havino lo
control over the works on behalf of the company, and shall extend to and include any of his
assistants actuig under his instructions, and that ^he said assistants by reason of the largo
arnount of work necessary to be done under such contr.^ots, did in fact act for and on behalf of
the saul Koss as manager ni the greater portion of the work.
5. The said contract further provides that the meaning or intention of the contract or any
question ansmg out of same, should be solely under the judgment of the said manage; in the
.sen.se above used, and the said plaintiffs say that the said assistants, acting as managers also
Zetr'Tr'^'^'^l" '"",''•" *"''"^ "P'^" "^^^^'' pay-ents were "„ade, and 'the 'sat
wie treated a.s properly complying with the said contract by the said manager. And tlie
plaintiffs say that they were not at any time in a position to know whether such certifi at 20
as between the company and the said manager were granted or not, but relied upon t e saS
p^gress estimates and went on and completed the work on the faith of the Lne beTn!
ceitihed to by such manager, .nd the plaintiffs submit that the defendants cannot now
If any such deads as are required by the contract have been neglected by the manager taTe
advantage of the same as against the plaintiffs. °
6. The plaintiffs further say that it is provided by the contract that at the time the
battle a? n ^'^ I'l T "'"""" P""''"^ ^^' '''' '""'^ ''''''^''' and the plaintiffs say
t at the said progress certihcates were issued after due consideration and discussion between
the parties and were arrzved at as a proper estimate of the work done; and they submt tha^SO
the defendants cannot now say that such estimates were not the proper estiL es he
same being made under the contract, and being made by the parties who' we e the ^e udg
of the work as to quantity and quality of material, and submit that the said defendants fre
estopped from any such contention now. ueiendants are
C. (a) And the plaintiffs further .say that the said company, the defendants by accenting
the said progress certificates and paying under the same, are unable to re,sciiu same ow a!
he position of the plaintiffs has been greatly altered by relying upon such pro.! e s eiSte
ueuaueu tiom taking any such objection
OouIerllS''""™' '""" "" "'"""'■'"• "' '■'■'"' ■"""" "' -* S"'"-"' of Defe„.o and «
17
S. Tlu) pliiintirtw Hay tliat the inattcr allcf'ed in thp T5tJ, «r„l irn> .. , o .
10. The plaintiHs furtl)or say that tho roaii ivferrol h, in th.. -i
oate, „„, ,„.,,,.,,„ f„, „„ „„x„i„„„ „. t,.:; 1::, i'',: :t zLtz r" ;'°
convenience o£ the contractors alon.r tlio to«,] nn,l f h . general
wor.. .., .as n..o entirely ll 'l^Jt,;;:: J^ s^ ZT^^r^i-roi ^ ^^ "^I
referred tc, and was done solely upon the un.lerstanding that the a e was not to be inH^T
in the contract, or in any way to be included utwI,.,- fl... f .1 1 7. included
such ,tcra.,, if ,„,y oxi»t. which the plainliHi ,1„,„I,1 „ot be paid ^ "" ■"■"
'30
h(
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18
KEI'I.Y TO AMKNDKf) STATRMKNT OF DICKICNCE .
,l,.l,v,';.I'"' '"""' ■'"'■" '"" "■'■ «"' "' "'■ "'■'•-« l-i" f. «... » n,l„,o„t.
'c an
i Tlif plaintiflk lurtlK.. s„y tliut Hi,, dnin,, irfVrml t., ,,s l„.i,„, „.i,l . .
r;;:':,::;r""' ► "" ' "">— "-"■ ■ « .::.. :::i Li:irrt"r,;:
DEFENCE TO AMENDED COUNTERCLAIM.
this book). ''"- '^tuten.ei.t ot Defence as printed in 2()
feel-
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in
10
In the Iliirli Court of Justice
Qin'i;\'S BHNCII DIVISION.
Be'iwkkn
^^''■'*^ '^^ 1 "" 2h<l December. A.l). IHH5.
(;OXMK|.: \: McLK.VXAX
A\n
Plaintifti,
7^i^;rv^,?:^^^:;^i^'^s™i?--:-v
De/endantft. 10
STAT .iVIHNT OF CLy\IM.
1. The plaintiffs are c.,„u.aeto,-s, r..si.I..„t at the T,.wn of Port Arthur
MHjesty g„oen Vietoria. an.l chapter..,! on, ^-'t^ -t«".rth year of the ,,.i,^.n of H,.r
i..cut_oftl,e».f,l r„i|„„,, - °""^""= ""° cw'tafts tor tl,e coi,»traclio„ ,„„| ,,|„i|,.
o. In or about tlie vem- H<V9 *i,« -i , .
w.,c, contact ha. been «„b,e^„enSy .Zed ,t « , ' ''','""'''"" ""'""J' """'I'-'y
.lelen, ,„,t ,.»ilway eornp,™,), to b„il,l „„d Zt u tt Tt i T'Tr' "'"' '"■"■■'' "1'"" '•.>• "-
^"r; :s ii"""°" '"'"«'■" "■" '"■-'3.-c.i;i::;:: r:it°o/p:,, t';f'''' "f r-^: - •'»■"'»
miio oast inclusive. '■ "^ f^""^ Aitiiur and the fortj-ei(r|,t]i
20
6. By sijcli conti-act tlic plaintiffs wore to furnisli nil lol.n,. i •
tilings necessary for tho execution of fcl.e wn.I 7 f >»achmery, plant, articles an.l
conte-acfc, and in plans an.l^ht tll-e n T .";"'"' '" "" '^I'-^^-t-- -"--"1 ^ th.
poses of the wort. ^ ''"" ''^''''"'^ *" ^''^ P'"^!'^^'^'' "^^ *« 1-' P^'^pare-l for the pnr-
7. By the said contract the word '• manager " wlienever used s1.n„I 1
construction having control over the work, and all dir^^J ^^ ^ ^ ::^:^,^;: "'^"'^Sor of
iiiaile l.y any one actin.-^ for or nn.lor I,;,., i ii i ,- '^^"'"'^'"'•'' M'^cn or decisions
«n«Hc<.it..<,,,„.„,v:i!,;:,;;;„;;:;°',;';;;;,,*""''' '« "■'■j»' '» »« .'pi.~v«i, a,„i ,„igui,„
tl,c ,„«a„i„s a,„| |,L,ti„ , S I 2 , ; l""'"^'- "'"' '"■■' *■<''«»" "« "> "0,-k „, ,„atc.,.ial or 10
law.., n,atHau»,, ana ,,:;:::::;::;; ;:;■;;;;;;•;;-■'-■- "■ ■*■■«■■- '■> "-'»" -^.
<i.«-..on. a,„i u„ .,,,,ta„e, „a„.o,, Howani Zi' s.iaf'T, r!;!;,:;:;';::"'-' ""^''"'■«' ■■?'","'
work as It progressed and returned snol. ,„ T\ V '^■^*'>^*'"'* engineer measured the
nordon. ^>e;iaintifl.clai:;u;:;^ ~:;;r;^^,, - V .^Ik- district engineer
forworkdoncLutcut.lowntheainount^ rZ, iV .1 ''" '^"^^'^•^^"^1^ ^'^^'li^ amounts
...anager of construction, the .e Join; Ro s ' '' T "^'^-^"^:"---«- --> ^'-7 .«ay that the
plaintiffs, but he has not yet Ze so h udf T' T^'^f'' ""'> ^°"*«"^-" "^' *'- ^^
doing, who have thus prevented the plai'n iff ' " " ^^■'■ "'■'^V'"'"' ''^' ^'^^^ ''^'^-^'I'^'ts from ...
ior by the contract irL said John Rolr " """'^' ''^" '"^^ '■^^■'■^-' -^'^i^-^^' -^"-1
11. After the expiration of about three months tlie ^nil p i •
notwithstanding the objection of the T^lnini^ ;"'"'"' '"^'P'^"^^^'' '^^^^
with the Hnal estimates.' Also l^c^ tl™n V ' i''"'"'' ''"^' ''''''"'' ^«"''' ^^ *'- ''-
<-ordon died, the result to th pi S,' ,■, '£: T "' ""^ '^""^'iT^ «°---'' ^'— -sane and
the men who measured the work and w " bot? T""'""' ""''^'' *" «'^'' ^ «"'^' -"-^^^ f™-
'.ad agreed to reconsider the ,uesZ of da S f '"'"" "'""^'''^' P''"^'-« -*"-*->
the plaintiffs say the said V^r^X^^T^t' " TJ "^' ^'" "^^ -^--^es whereb.:
upon them. ^ ^^ estimates aie ,n no way binding nor were intended to be suc'h 8
12. The defendants then made nn n finoi r , r
^'--nanager repeatedly applied :\;^;:J^t:rt"t'"'"'V"^^^^^^^^
sider the cla.s.sification previously to fii IS '/'"'^'^^ '•^•-' t'-' work and recon-
certificate of correction of such fina 11.1" '"'"^^'r" ^''^ ■'-' "Ot so done, and the
Mr. Ross, and payment offered 1,. d tuk " o ,1" ri;^ I,'' "" ''' "" ""'''-''' '^ '^'--'^ "->-
l..-n>e.its and gave receipts the.^for ^^^ h t^^ '^ t ^ P "' v" ^'^'"""^ '''^'^'' ^^'^
ior the Canadian Pacific Railway Company ,n , ■^,, ''"" '''"' """ ^^"«'^t, who acted
that such receipt was not to del.r the p 2 .^ ^^ "t '''"'•"' ""' "'"^ ''^^ '^'''"'^t-' --•
I-<1 1-n long promised and the right to t^ ! J;"' --'-^^x- ''^ the manager which
Payment was made as aforesai.l ' "^ "''* '"'''^ "^^"^''^ '"'^J certificate upon which 40
^">-ti"i;r;;::;s::sr?ot 11^:^^ ':vt"- -^-- - ••■a-^^ t,.. certam
■•oward..n classification, their ret;ri:^h:vt^',::^r";r '""'^ "''• '"^' ''°^'' «"•''- -''
paration of final estimate. ^ '" cli^'uted. agreed to reconsi.ler same on pre-
80
21
tlie etuin. of the suh-ono-meers, they have not receive.) imyuu-nt fur tlie work they have well
and properb^ -lone for defendants under the above eontn.t work to the an.unt " f: (^18 4
X^^^;^::;^::r '''' ''- ^""" -' '''''''■''' ^"- ^---^ '^ ^^'^- eiair t
the ^^:::::^'rI::::^Z:'^ ':f^'^''' l-e in.proi.rly and u^ustly prevented
Pflh-n„ .,« .n.,. I 1 " pi-o-rress estnnates and measurements and clas-iH-
ihe plauititts propose that this aetion should be tried at Toronto
Cree^:;-^;trs;^,t^^^^ ---- -. Ho.kin .
PROPOSED AMENDMENT TO STATEMENT OF CLAIM.
in the s'^;'.S': -iS/:; t' ^V^'!"/ r"" «^ ^'^^ ^'-"^- •" ^^^ --thod of exeavation an<l
l.y the n.an,.ge:;;^^. !' ; r^L^lr, ' ^"V''^'',^'-'^- ^^ P^P-'y ordered
e<>ntract,the^vereput;<.nL;e^e:;ens: ' "" ^^■''^■' ""^ "^^^^ """ ^^''"^■•' *^'^ «^"^
reu.>let Z::u.;l ';:!:• u'rT *^;rf •'\*" -^«»S« ^^^^ ^avin, re„.oved gullets and''
and of extra haul and "'^ ''" '"^''' *''"^ "'"■^"^■^"'^' ^'"-' ^P-^ ^>^' --*"»- Plant
tho.;ni;™;;:;;L;',!;:;::;;^t:':;'""*^r ^'■*"" -'^^'"^^ -"'^" --^ *^> -^e
engineers. "' "'^^ '^'' ''"''''' "^ ^'"-^ nnrro^.ln. of the bank ordered by the
but r dZZiis'c' :r i?' ri"^ '" '^"^^ *■" p'"'"^'«^ ^^ ^'"^ -"-- -^ --i. work
eontraet requires. ^ ^""" ''"" "^""'■^"^^ "^" P™^"""^^ the eertiheate whieh the
30
On those aceounts, the plaintiffs clain. the sun, of 81.5 000 -xn,! nr... fl f H '
be allowed and directed to make snob .,11,,.. , P ^^ ^'"^'^ *'"' "'•inug<.r may
^.rtificate therefor. allo.-ances and elassiHcation an,l to give the nl^cessary
b
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22
STATEMENT OF DEFENCE.
-in, tl.,t portion tI,.vofU.tu.,..:^^,i:,';\^^ "' *''""' '•""-^•- ""^
4. TJ. plaiMtins perforn....] tl,.. w.'., ^i L e '; h' r""!' '" ''"'""^^ ""^•" ^t'' -^^s. 10
tI.c.ofor, una tl,o defendants say tlu.ttlK;"r,r ""'^ I"^''' "' f""
respect thereof. ^ ' ^ ""'^ ".del.ted to tl,,.,., tor anytl,i„»- whatever in
'^^^^^^^'i^'^^^^^J;^^^ 'Tr^' •''■"^- '-^ ^"" -" -'-
^i-l -tin.ate, as stated i.Uhe mh ^^^ , Zt^l^i^^^'rTnT' " "'""^'"'^ "^ *""
any power to bind the defendants to an.^sud, a.a.c^nent "'"' "' ^'"' "'^"^ ^"^^
in ^'-2l;:riS:;t^:::r^^^ ''•■•.- ^-.e a,h,ations contained
Howanl and Gordon had no pow or tW '',.;"'','';'''' '"' ^'"^' ^''•- -''^ ^otfat,
iiailway Con>pany, by the agree nent or ^^^^^^^^ '"' 'T "'"r'"'*'^' ^'^ ^'-'-J'-^ facitic20
7. The dei^.ndants, the Canadi^ pISc^r:. ^^^r" ''^' '' ''"" '"-'' '"'^'"'^ ^'^^ t'-"-
agreed to reconsider the rettn^ns of tlH^^^.r-r'"^ "'■''* *''^ ^'^i'» J"l'» Koss
tms for the said wo.l, as .u'l: 1 ^ ^ u ,:S:'::"' f t f" ""' ^^^^'^"""^ -'*" *'- P'-- '
!-• l.ad any power or authoritj- io e^^^-n U e • f^^ ""^ ''-"'' ''^^'^^---^ "^ Ch.in,, o 't„.t
'.^or..aid without the anthorii of ^i^i^ii^:: t ^ t;^: ;i;;;: ,;-r ^'":i'^ --'^'^ -
.S. ihe sa.d contract amongst other thir.o-., contains t ''^' C'on.p.u.y.
entit^, ^^n;:::;;;:;:Lf ;i z :"^^^-^ ^" ---"::::i:.s are fair.y
eontractorsatanvW a' hn :;?''" T'''''''^' ^^^*''^^^^^^' '-* «'-''' ^1^
notinehuledinthepr:.^^^ ^ :,l7; ! rT'^f*'-' -^-'' they consider are ^^0
-peat such c]ain,s in w^itino . , .m n •"''"'"^' ''"' ^'"■"' *" "-'^---»1
«"«! every certih'cate in w id/ e^^ " ""' ,""'"' '' '''^^^ I"-" *'- ''-^te of ead,
25. The contruetors in to e Ln ' " " . V"^ '" ''^"" ''^"■» --"od.
eIause,u.ustaeeon,p.n:t::^rs«:'r "'"'':''"'' ^^^^-"' ^« - the last
t'.^'-son why th.Uidnh the;^;:.:;; :^:^;;:„7--- " ''rr--'^ -^^
•"H.le duru.g tlie progress of the M.,rk within T ■"' ""'' ''"""■^ *^^- tl'"s
»-l -'P-ted in writing every nu t u^ 1 'n '^"^' '" '" t'"' I'^'-e^ling clause,
clearly understood tluU thc.y u" " ' ^r''^ "^'"f "" '^ •*''^^'^''' ^^ '"-* '-
;...;.t::,;X^^^^^^^^^^^ -„ t... provisions of the ..r
t^ey ^ere shut out. and that the pl.nti. ,.:; T dllr^rX-^t^J '^^ '^^^
2d
10 Tin- plaintiffs Imve never made any claim or .leman.l upon the defendants, the Canadian
1 .leihc Railway C.-mpany, in respect of ti)e matters lierein complained of. althoutrh they are
a le-ed to have existed ever sihce the year 1 882, nor di.l they tlie defendants ever hear of any such
elands until the be,i,nm.in,ir of this action, and they helieve that the plaintiffs have sonie'other
purpose or object iii now assertinjr them than a bona fide expectation of establishin-r them and
they plead the laches of the plaintiffs in a matter of this nature as a bar to the said action'
11. The plaintiffs have brouojit three other separate actions against the defendants all in
resj.ect ot^ matt.'rs arising out of the contracts with the defendants, the Canadian Pacific
aihvay (..mpany, for the construction of their railway, and the said defendants charge that
tliey luive .lone so vexatiously, and that all of the said actions ought to he consoIi<lated 10
12. The defen.Iants submit that this action should be <li8mis.sed against each of them
respectively with costs.
l>;'liveml the 5tli day of May, 188(1, by R. M. Wells, of No. 110 King St. West, Toronto
JJetendants Solicitors. '
JOINDER OF ISSUE AND I^EPLY.
Tin., plaintiffs join issue upon the <lefeiidants' Statement of Defence herein
_ And for a reply to the ninth paragraph of the .said statement, the plaintiffs sav that the
delivered this 10th day of May, LS8(i.
McCarthy, osler, hoskin & creelman,
Plaint if n' Solicitors.
20
2*
In the High Court of Justice
QUHHN'S HHNCII DIVISION.
Betwekn
Writ issu...! tl.,; '2u,\ .lay of J)oceii.bor, 1885.
CONMEE ct iVkLENNAN,
AM)
THE CANADIAN PACIEKJ RAILWAY COMPANY
Plaintifti,
J)i'f('iKhtntx.
STATEMENT OF CLAIM.
1. The plaintiffs are contmctcrs. resi.lont at the Town of Port Arthur
Pa.Han.nt ^^ll^:^^:'!^: ^r:^^ ^''y 'r-PO-t.l hy .n Act of the
Queen Victoria, and chaptered one. *'' ^'"'' "^ '^'' ^■^""^'^ "*' "^^^ ^l^J-ty
3. The ol.ject of the .said corporation wa.s to construot n lin. F -i
board o British Coluud.ia with the railway .yZ^^^^^a^ ' "'""""^^ ''^^ •^^'^-
saiddef::i::r:^;;rur:^[:;5j;:r'^^^'"^"^^^ -'''--' --^^ ^ --^-^ -^^>^ ^^^e
per tie. for the constrL'tfon ^1::^^^'^^::^ [^d:!:;'"^""" '"''l ^ *'"' '^'^ '' '' ^^^^
east, to tlie number of 2,640 ties for ead^ f . ' -"-"'"""'S at Port Arthur and running-
inspection by the con.panv. ' '''^' """'^^^- "^^ "'"-^' «»^'l' ti^"« to be subject to 20
f-v uuies fro. the place ^l^:'Z;:TZ^:Z'i:\^'^'''f' .^ ''' ''"' ^'"^^ ^''^' «-*
-luire,!. The said defendant co.npaJy then stt^^^^^ P"'* '' "" !"" "'"'■■^' *'''-'3' -«-
10
C]
25
were , Mt.vul l,;y tl... .\vUnuhmt c.npany tVo,„ plaintiffs an-l insp-cte.! l.y tl... cinpanv's i, «n..o
o.■andproKn.ssost,^.ateH.■et.u•„e.ltothopl.untiHs,^.,. tl. sanl., an.l U^hI T mi^TI;
...„• .sulM...nt,aotor.s on such pro.a-es.s ostin.ato.s, l.ut ,sui.,scK,uontIy on. Si s wa . .i t
oth r Tl ' , .' ' '"""""•'^' ^^•''" ""'■^' '■"^•^'•"1 ^" '•••PIHOO such ti..s thrown out 1 v
uscl by tho .h.fen.lants. «"^'«^4"^'"t to the suxl secon.i .nsp,,cti..n as aforesaid, an.l 10
7. The ;)laiiititfs have under said contract sunnlicl tn ♦!„> i p i i
have been ae .ented an.l us..d bv said .h-f^.T \ T' , «Icfendant con>pany ties which
1_ "^ """ "'"" 'JJ f<ai(l (letendants to the number of "•''; ()()() „,„l m,,.,. i i
received tro.a the defen.lants on account thereof the sun. of 4-. on < ^ ? ""'^
«lu" plaintiffs of «.%()7!)()4 which fb..v ) i "^ i#3.),()2().<K,, thus leavin- a balance
J!'; >•''"■;«■» I - "■»' ti,i» „i,„. f„,u::;,i',f„;t,:'t: "" '"' •''""""'' '""*■
STATHMENT OF DEFENCE.
1. Tlie defendants admit the first secoiwl nn,l f).;..i ., , ,. .
of Claim. • *"'"'"' '*"'' *'^"^' P'^'-ttgraphs of the Plaintiffs' Statement 20
respect of the n.atter compLne.l of ' "^'"' '" ""•^' ^""" ^^''"^t^'ver in
4. This action should be disnusse.l m ith costs
JOINDER.
in &30