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NORTH SHORE RAILWAY 
 
 : LEGAL PROCEEDINas. 
 
 SEYMOUR versiis McGREFA'Y. 
 
 AOBEEMENT of AOOtTST 18TH 1876. 
 
 QUEBEC. 1876 & 1877. 
 
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 No. 
 
MEMORANDUM OF LEGAL PROCEEDINGS, 
 
 Based upon Agreefnent dated August i8th, 1875, 
 
 CANADA, ) 
 
 Province and District) 
 
 OF Quebec. 
 No. 2329. 
 
 
 dii \\it ^ttjjeriar Cjaurt, 
 
 SILAS SEYMOUR, PlainUff, 
 
 versus 
 
 Hon. THOMAS McGREEVY. Defendant. 
 
 Messrs. TASCHEREAU & FORTIER, 
 
 Attorneys for Plaintiff. 
 Mr. R. ALLEYN, Q. C, Counsel. 
 
 Messrs. ANDREWS, CARON & ANDREWS. 
 
 Attorneys for Defendant. 
 Mr. C. a. HOLT. Q. C, Counsel. 
 
 5942*^ 
 
 o 
 
PP'"«""""^W"^»W"«I 
 
PLAINTIFF'S DECLARATION. 
 
 The Plaiutift'iu tho annexed AVrit described, complains 
 of the Defendant, also therein described, and represents : 
 
 That the Plaintiff is and has been for many years, a 
 General Consulting Engineer, acting as such more espe- 
 cially in so far as relates to the construction and equipment 
 of Railways, at Quebec and elsewhere. 
 
 That the Defendant was, from the twenty-first day of 
 February, eighteen hundred and seventy-four, to the 
 twenty-fourth day of September, eighteen hundred and 
 seventy-five, the Contractor for the construction of the 
 North Shore Railway, then being built and constructed by 
 the North Shore Railway Company, a body politic and 
 corporate. 
 
 That in the month of August last, the Defendant entered 
 into negotiations with the Government of the Province of 
 Quebec, with a view of obtaining from the said Govern- 
 ment the contract for the building of the said North Shore 
 Railway, on the basis of a cash consideration ; or of being 
 relieved from the contract already entered into for the 
 construction of the said Railway, which it was then ex- 
 pected would be taken in hand and built by the said 
 Government. 
 
i LEGAL PROCEEDINGS. 
 
 That during the said negotiation^, the said Defendant 
 applied to the Plaintiff as General Consulting Engineer, as 
 aforesaid, for his aid and assistance therein. 
 
 That on the twenty-fourth day of September last, the 
 said negotiations ended, and a contract was entered into 
 betwoen the Governmeni of the Province of Quebec and 
 the Defendant, for the construction of the said North Shore 
 Railway, for a cash consideration to be paid the Defendant 
 for performing the contract therein m«»ntioned ; which 
 contract was subsequently ratified and approved by the 
 Legislature of the Province of Quebec, on the twenty- 
 fourth day of December last ; and the said Government 
 authorized to carry out the same, and to build and con- 
 struct the said road. 
 
 That during all the said negotiations, the said Defendant 
 had the aid, assistance, counsel and advice of the Plaintiff, 
 as General Consulting Engineer, as aforesaid ; and that 
 the Plaintiff rendered the Defendant many and important 
 services in connection therewith, all of which enured to 
 his profit and advantf>ire. 
 
 That in consideration thereof, the said Defendant, by 
 paper writing bearing date at Quebec, the eighteenth day 
 of August last, promised and bound himself toward the 
 Plaintifi" as follows : 
 
 " In consideration for your extra services, (to wit : those 
 " above mentioned) I hereby agree that if I close an 
 " arrangement with the Provincial Government of Quebec, 
 " by which the Government either takes the North Shore 
 " Railway contract off my hands, or pays me a cash con- 
 " sideration for performing the contract, I will pay you 
 " five thousand dollars upon the closing of such an ar* 
 
plaintiff's declaration. $ 
 
 " rangement, also five thoiifiand dollars additional within 
 " one year from that date, and live thousand dollars addi- 
 " tional within two years from that date, making in all 
 '• fifteen thousand dollars." 
 
 That in view of the premises, there is due by the De- 
 fendant to the PlaintitF, the sura of five thousand clollars, 
 being the amount payable upon the closing of the said 
 arrangement, which ihc Defendant refuses and neglects 
 to pay, though often thei- anto required. 
 
 "Wherefore, the Plcmtifl' prays r^dgment against the De- 
 fendant >r the sum of five thLusand dollars, with interest 
 alid costs. 
 
 Quebec, Slh June 1870. 
 
 kse 
 an 
 
 jre 
 Ion- 
 
 JOVL 
 
 laT- 
 
11: 
 
 
 I • 
 
 I i 
 
 DEFENDANT'S ANSWER. 
 
 And the siid Defendant, for answer unto the demand of the 
 said Plaintiff, in the Declaration of the said Plaintiff* in this 
 cause fyled contained, not confessing nor acknowledging 
 any of the matters or things in the said Declaration set- 
 forth and alleged to be true, save and except as hereinafter 
 stated, by this his perpetual Exception p&remptoire en Droit, 
 saith that the said PlainlifF, bylaw, cannot at any time have 
 or maintain any action against the said Defendant for or 
 by reason of the matters and things in the said declaration 
 set forth and alleged, or in of any or either of them. 
 
 For that during all the period during which the said 
 Plaintiff in his said declaration alleges that he performed 
 services for the said Defendant, he the said Plaintiff was 
 the salaried officer of the North Shore Railway Company, 
 to-wit : at a salary of five thousand dollars per annum, 
 which salary was paid him during all the said period ; 
 and any matter or thing done or performed by the said 
 Plaintiff duing the said period, in relation to, or connec- 
 tion with the said N orth Shore Railway, or its construction, 
 or in relation to tl e contract for the construction thereof, 
 was so done and performed by him, the said Plaintiff", as 
 such salaried officer of the said Company, and not for him 
 the said Defendant^ or in his the snid Defendant's interest. 
 
D«.FENDANTS ANSWER. 
 
 That the continuing by the said Plaintill" to hold the 
 said office under the said Company, disqualified and pre- 
 vented the said Plaintiff from rendering the said Defendant 
 any services in connection with the said Railway, its con- 
 struction, or the contract for its construction. And in fact 
 the said Plaintiff, far from rendering the said Defendant 
 such services, or in any manner advancing the interests of 
 the said Defendant in the promises, acted adversely to the 
 Defendant's interests, opposed the Defendant's wishes and 
 desires in the matter, and purposely injured the said De- 
 fendant, both by his words and deeds, in connection with 
 the said Railway, and with the Defendant's negotiations 
 with the Government of this Province ; and generally in 
 all matters in relation to the Defendant's contract for the 
 construction of Lhe said Road, and the ratification by the 
 House and Legislature of this Province, of the contract 
 between the said Defendant and the Government. 
 
 That the said Plaintiff never performed any of the ser- 
 vices contemplated or alluded to in the paper- writing, or 
 missive in his said declaration referred to, or attempted, 
 or was willing to perform the same or any of them. 
 
 Wherefore the said Defendant prays the dismissal of the 
 Plaintiflfs action in this behalf, with costs. 
 
 And the said Defendant, for farther plea to the said ac- 
 tion, and without waiver of the foregoing, saith : That the 
 said Plaintiff, deceitfully pretending that he had rendered 
 him, the said Defendant, assistance and services, which in 
 fact he had not rendered ; and concealing from him the 
 fact that he had on the contrary, acted adversely to his 
 the Defendant's interest, obtained from the Defendant a 
 sum of two hundred dollars, paid by him, the Defendant 
 
6 
 
 LEGAL PROCEEDINGS. 
 
 f! fii 
 
 to J. Gr. Colston, Esquire, Advocate, at the request and 
 upon the written order of him the said Plaintiff; and also 
 obtained from him, the said Defendant, his the Defendant's 
 two negotiable notes, dated at Quebec, , the first of May, 
 eighteen hundred and seventy-six, for the sum of twelve 
 hundred dollars each, and payable, respectively, three and 
 four months after their said date ; and which said notes, 
 he the Plaintiff" has negotiated and received the proceeds 
 of; and he the said Plaintiff* has also had an4 received of 
 the money of the said Defendant, paid to him by the Gov- 
 ernment of this Province, between the first day of Novem- 
 ber last, and the first day of May last, as salary as Consult- 
 ing Engineer, a further sum of two thousand five hundred 
 dollars, which sum he the said Plaintiff" was not entitled 
 to, and did not earn ; inasmuch as the said Plaintiff" did 
 not render the said Defendant any services during the said 
 period, and was not in his employ during the said time ; 
 and he the said Defendant is entitled to set up in compen- 
 sation, and doth hereby set up in compensation the said' 
 several sums, against any demand which the said Plaintiff" 
 may legally have or prove against him, the said Defendant, 
 for or by reason of any of the matters or things in his said 
 declaration referred to ; and the said demand hath thereby 
 become and is paid, and satisfied, and discharged. 
 
 Wherefore the said Defendant humbly prays that for the 
 causes aforesaid, by the Judgment of this Honorable Court, 
 the said compensation be declared, and the action of the 
 said Plaintiff, in this behalf, be hence dismissed with costs. 
 
 Quebec, July 6, 1876. 
 
i 
 d 
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 Id- 
 fF 
 
 Ld 
 
 •y 
 
 le 
 t, 
 le 
 
 ADMISSIONS BY DEFENDANT. 
 
 See an.sicefs to Articulation of Fads. 
 
 1. That Defendant was, from Fobruaiy 21st 1874, to 
 September 24th 1875, the Contractor for the construction 
 of the North Shore Railway, under the Railway Company. 
 
 2. That in August 1875, Defendant entered into negotia- 
 tions with Government, with a view of obtaining a con- 
 tract for building the North Shore Railway, on the basis 
 of a cash consideration. 
 
 3. That on the 24th September 1875, the said negotia- 
 tions ended, and a contract was entered into between 
 the Government and the Defendant, for the construction of 
 the said North Shore Railway, for a cash consideration to 
 be paid the Defendant for performing the Contract. 
 
 4. That the said Contract was subsequently ratified and 
 approved by the Legislature of the Province of Quebec, 
 on the 24th December last. 
 
 See answers to Ffiits ef A rticJes. 
 
 5. That Defendant had communications with the Plain- 
 tiff, as General Consulting Engineer, during all said nego- 
 tiations, concerning documents which the Plaintiff stated 
 
y 
 
 '*! 
 
 8 
 
 LEGAL PROCEEDINGS. 
 
 that the Treasurer of the Province had put into his, the 
 riaintifTs hands, to prepare n contract with the Govern- 
 ment, and assist him. the Treasurer, in making a contract. 
 That was iu the month of August. 
 
 6. That Defendant siirned a document, bearing date at 
 Quebec, August 18th 1875, by which he promised and 
 bound himsi^lf towards the Plaintiff, as follows : 
 
 " In consideration for your extra services, I hereby 
 agree, that if I close an arrangement with the Provincial 
 Crovernment of Quebec, by which the Government either 
 takes the North Shore Railway Contract off my hands, or' 
 pays me a cash consideration for performing the contract 
 I will pay you five thou.><and dollars upon the closing of 
 such an arrangement ; also five thousand dollars addi- 
 tional within one year from that date ; and five thousand 
 dollars additional within two years from that date ; making 
 in all fifteen thousand dollars."' And that, upon being 
 shewn the document referred to, Defendant acknowledged 
 that it was signed by himself. 
 
 See testimony of lion. Tho-<. Mc(}reevy, 
 
 7. That subsequent to signing the above letter, the De- 
 fendant closed an arrangement with the Provincial Gov- 
 ernment. 
 
 8. That during the proirress of Defendant's negotiations 
 with the Government, he had communication on several 
 occasions with the Plaintiff, and saw him several times 
 about the preparing of the contract, or a draft of the con- 
 tract. Also, that Plaintiff wrote Defendant on several occa- 
 sions. Also, that Defendant may have kept some of these 
 letters ; and some h » may not Lave kept. 
 
ADMISSIONS BY DEFENDANT. 
 
 n 
 
 ffed 
 
 9. That upon being called upon to produce these letters, 
 Defendant produces ori^nal letters si^ed by Plaintiff, of 
 the following dates : Sept. 23, 1875— Feb. 4. 1876— Feb. 18, 
 1876— April 10, 1876— April 26. 1876— May 2, 1876— May 4, 
 1876, and May 6, 1876, — admitted copies of all which were 
 lyled as Plaintiffs Exhibits A B. C. 1). E. F. G. and H. 
 respectively. 
 
 10. That Defendant was alwavs desirous of obtaininsT 
 responsible parties to atlvan«e th*» means in the carrying 
 out of said contract : to-wit th** orii'inal contract with the 
 Railway Company . Also, that Defendant did enter into 
 arrangements with Plaintiff to tha effect, through the 
 Hon. Mr. Irvine. 
 
 11. That, in August and .September 1875, the Defendant 
 had occasion to have several interviews with the Plaintiff 
 with reference to the proposed new arrangement about to 
 be entered into for the con.«tru«-tion of the North Shore 
 Railway by the Government. Also, that during this time, 
 there were frequent negotiations carried on betw'een the 
 Defendant and the txovemment. to come to an understand- 
 ing in the matter. One of the principal o1»jects was, that 
 the Government should undertake the constriiction of the 
 Road, instead of the Railway Company. And another prin- 
 cipal object was, to substitute a ca-sh basis for payments, in 
 lieu of Railway Bonds and subsidies. 
 
 12. That Defendant wa.s told by th»' Plaintiff, that the 
 Treasurer of the Province had called on him ;the Plaintiff) 
 to assist him (the Treasurer , in preparing the draft of Con- 
 tract, Schedules and Estimat.-s. 
 
 13. That Defe?idant was verv desirous that the thing, 
 (to-wit, the preparation of the Contract. Schedules and 
 
T 
 
 10 
 
 liEGAL rROCEEDINOS. 
 
 Estimates) should be put through as soon as possible, and 
 that there should be no delay. 
 
 14. That Defendant signed an agreement, during these 
 interviews, with the Plaintiff, upon which this action is 
 based, in order Ihal there Kho/dd he no delays, as before sta- 
 ted ; Lnov'inii; that /lie P/ainfiJf had the means in his power of 
 keeping it back ; which to-wit, the signing of the agree- 
 ment) the Defendant would not have done under any other 
 circumstances ; // vas not signed for services rendered, and 
 only for the reason above mentioned. 
 
 lo. ^ Tacitly.) That after signing the said agreement, the 
 Defendant had a conversation with the Plaintiff* respecting 
 the then existing stale of Defendant's negotiations with the 
 Government, concerning the said contract ; and that 
 amongst other things, Defendant declared to Plaintiff', that 
 there w^as a difference between Defendant and the Govern- 
 ment of .some four hundred and fifty thousand dollars, 
 respecting the consideration of the main Line alone. 
 
 (Direct. The Defendant cannot state the exact amount, 
 but there was always a difference between the Govern- 
 ment and the Defendant. 
 
 16. That Defendant's interviews with the Plaintiff" were 
 chiefly at the Plaintiff's office ; but Plaintiff' may have 
 sometimes come to Defendant's house. 
 
 17. That Defendant believes the contract was supposed 
 to be ready about the last days of August ; but the Gov- 
 ernment thought proper to delay it until the 24th of Sep- 
 tember. And Defendant also believes the delay was with the 
 Government. 
 
 18. That Defendant dont think that, between the 18th of 
 August, and the 24th September 1875, the Plaintiff" ren- 
 
ADMISSIONS BY DEFENDANT. 
 
 11 
 
 derod sorvicos towards the facilitiitinir and l)riiiging about 
 the new contract above referred to, for the reason that, all 
 Defendant knew Plaintiff to do, was considerably altered and 
 changed by another Engineer whom the Government em- 
 ployed to take charge, that was Mr. Light ; And the contract 
 as drawn out by the Plaintiff, was completely changed. 
 (The foregoing contains the important admission that the 
 Plaintiff prepared a contract, in persuance of the '• Extra 
 services" which the Defendant admits were contemplated 
 by the agreement of August 18th 1875.) 
 
 19, That Defendant might have mot the Plaintiff, and 
 have examined, at Defendant's house or elsewhere, the 
 draft of a new contract, before Defendant signed it. Ahso 
 that the Plaintiff maj'^ have made suggestions, to the De- 
 fendant with respect to alterations or additions to be made 
 for Defendant's protection or interest, in the draft of the 
 new contract, before it was signed, other than those men- 
 tioned in PlaintiiFs letter of September 13, 1875. Also, 
 that at the last moment, a cash consideration teas substituted by 
 the Government in lieu of the $125,000 subscribed by the 
 municipalities — (referred to in said letter.) 
 
 20. That Defendant may have answtned some of Plain- 
 tiflfs letters, but he kept no copy ol" them. Also, that De- 
 fendant may have met the Plaintiff, near th*,- Montreal 
 Bank, last February ; and may have had a conversation 
 with him about the subject matter of this cause ; and 
 Defendant may have stated to Plaintiti" that he was going 
 to make a settlement with him. Also, that Defendant may 
 have stated to Plaintiff that he intended to call on Plaintiff; 
 and Defendant believes he did so state, and give Plaintiff a 
 sum of money; but Defendant cannot say the ainount. Also 
 

 12 
 
 LEGAL PROCEEDINGS. 
 
 that Defendant intended to hare given the Plaintiff such sum 
 of money, in consideration of the arrangement made vnth 
 Plaintiff— [to-wit, the agreement of Angust 18, 1875.) 
 
 21. (Tacitly.) That Defendant was aware that, pending 
 the negotiations which led to the execution of the contract, 
 on the 24th of September of last year, the Plaintiff had 
 Parties willing to assnme an interest in the then existing 
 contract for the building of the road. Direct.) Negotiations 
 were kept in abeyance triih certain parties during that time. 
 Also, that Defendant remembers, as one of the parties to whom 
 he refers, the name of Mr. Aiken, the person mentioned in the 
 declaration in the other can^e. Also, that Defendant signed 
 the letter addressed to the Plaintiff dated Quebec, 22nd 
 July, 1875,1 marked Plaintiffs Exhibit L. at Euquete. Also, 
 that Defendant believer he had an intervietr with the Plaintiff 
 and Aiken. Also, that Defendant w rote, signed, and sent to 
 the Plaintiff, Exhibits at Enqnete. I. J. M. & N. (Being 
 letters dated respectively, April 17th, 1876 — May 1st, 1876 — 
 May 4, 1876, and one other. 
 
 22, That Defendant was aware, that in June last, 1875 
 the Plaintiff was a Consulting Engineer to the North Shore 
 Railw^ay Company, at a salary of five thousand dollars a 
 year, which Defendant paid, by virtue of his contract with 
 the Company. Also, that Defendant knows that Plaintiff had 
 a sign on his office door, «.< " General Consulting Engineer'^ 
 
 V\ 
 
FACTS pro\'i:n i]v plaintiff. 
 
 See tefitimony <>/ liun. (Jcorgc frroK . 
 
 1. That in 1871. Plaintiff had an office in New York 
 City, as an Engineer, following his profession ; and that 
 he was then and there consulted respecting the North 
 Shore Railway. 
 
 2. That Plaintiff came to Canada soon after that date, 
 and was engaged as Consulting, and acting Chief Engineer 
 upon the North Shore Railway. 
 
 See testimony of Mr. A. II Yerret. 
 
 3. That Plaintiff acted as Chief Engineer of the North 
 Shore Railway Company, from 1871, up to May 1st 1875; 
 when he resigned as such, remainins: as Consulting En- 
 gineer of the Company. 
 
 4. That after Plaintiff's resignation as Chief Engineer, 
 he changed the Sign on his office door, and substituted 
 thereto the following : " Greneral Consulting Engineer. " 
 
 6. That witness often met the Defendant at his office, 
 (to wit the N. S. R. Office) and had conversation with 
 Defendant ; and always understood from the conversation, 
 that the Defendant was on good terms with the Plaintiff. 
 
14 
 
 LKOAL PROOEEDlNOi*. 
 
 And that Plaintiff' was assisting Dt^fendant to prepare 
 figures and estimates for the Contract in question. Also 
 that witness saw the Defendant coming down the stairs 
 which led to Plaintiffs office. Also that Plaintiffs office 
 was on the flat above witness' office. 
 
 Set' teHlimoHji of Hon. A. R. Aiufern. 
 
 6. That, between August 18th. and September 24th, 
 1875, at the request of the Plaintiff, and as a personal 
 favor, the then Solicitor General of the Province of Que- 
 bec, being also a member of the Provincial Government, 
 let the Plaintiff see the draft of the proposed Contract 
 with the Defendant ; and also that the Plaintiff afterwards 
 returned the same to the Solicitor General, with a written 
 communication, 
 
 7. That the Plaintiff also sent to the Solicitor General, 
 a letter accompanying said communication, of which 
 letter the Solicitor General believes Plaintiff's " exhibit 
 Z, " to be a true copy. 
 
 8. That the Plaintiffs " exhibit T " at Enquete, (to 
 wit : Remarks of the Consulting Engineer upon the form of 
 Contract), is the communication in question. 
 
 
 \\\i 
 
 See te.stimo'nij of Mr. A. L. Light. 
 
 9. That the Government Engineer (Mr. Light) was not 
 present in Quebec, during the negotiations between the 
 Government and Defendant, until after the 29</i August. 
 And that, after that date, he, the GoTemment Engineer 
 
FACTS PROVEN BV PLAINTIFF. 
 
 15 
 
 not 
 
 the 
 
 ;ust, 
 
 Ineer 
 
 was present in Quebec during iii«' negotiations which 
 resulted in a Contract between the (rovernment and the 
 Defendant lor the construction ol the North Shore Railway 
 upon a cash basis. 
 
 10. That after that date, the (xovernment Engineer took 
 an active part in these negotiations, and the preparation 
 of the Contract, Specifications, Estimates and Schedules 
 which form part thereof, or are referred to therein. 
 
 11. That the document shewn to the Government En- 
 gineer, marked Plaintiffs Exhibit " A. A. " at Enqu^te, ; to 
 wit: Points lo be considered in adj ustins: the rxisfinijr Contract 
 to a cash basis, ^'c.\ is in the hand-writing of the Plain- 
 tiff Also that many of the points herein expressed are 
 embraced in the present Government Contract. Also thai 
 the Government Engineer saw many oi these points em- 
 bodied in the rough draft of the Government Contract in 
 the hand-writing, and in the office of the then Attorney 
 General Church. Also that the Government Engineer 
 examined, together with other papers having reference to 
 the matter, with Mr. Church, and Mr. Angers, the present 
 Attorney General. Also, that there was one document 
 signed by the Plaintiff, and in the hand-writing of his 
 son. It was a draft of a new Schedule ; and a copy of 
 Plaintiff's Exhibit " B. B. ' at Enquete. 
 
 12. That the Government Engineer is aware, that by 
 the insertion in the Contract, of point or clause " 12" (as 
 contained in Exhibit marked A. A.j the Contractor, (the 
 Defendant) has benefitted to the extent, at present, of 
 some $5,000, in consequence of a change of location for 
 about ? of a mile, near Portneuf And it is at present an 
 open question, whether there shall be other changes. 
 
-r- 
 
 Tin 
 
 M i:\10RANDUM. 
 
 Showing the id«nitity or similarity ol' certain para- 
 i^raphcs or conditions, as contained in Plaintiff's " Exhibit 
 A A," in Plaintiff's hand-writing-, referred to in Mr. Light's 
 testimony ; (})eing " Poin/s to be considered in adju sting the 
 existing Contrart to a cash basis, ^c., ") and those contained 
 in the present Government Contract ; and demonstrating 
 also that the Contract was prepared chiefly ll-om Memo- 
 randa furnished by Plaintiff. 
 
 Extracts from Points, ^c. 
 
 " 1. The existing Contract and Spe- 
 cifications, together with Circular No. 
 2, dated June \1, 1874, to remain in 
 full force and effect, except as here- 
 after changed or modified. " 
 
 " 3. Steel rails of the best quility 
 and pattern, weighing 56 lbs. per 
 lineal yard, to he used for the nain 
 through track. — The switches and tid- 
 ings to remain of iron of the sa no 
 weight and {lattcrn. ' 
 
 Extracts from Contract. 
 
 " The said Hon. Thos. McGree\ y 
 hereby undertakes, binds and obliges 
 himself toward thu said parly of the 
 second part, to do and perforin all the 
 obligations, and to execute all the 
 works which under the aforesaid Con- 
 tract of dale the 21st of Feb., 1874. he 
 was bound tu do and perform to and 
 in favor of the said Company, subject 
 however to the requirements of a cer- 
 tain circular called Circular No 2, 
 dated the Tilh of June, 1874, signed 
 Silas Seymour, and hereunto annexed 
 to form part of the presents. " 
 
 " The party of the first part coven- 
 ants and agrees to use and employ 
 steel rails of the best quality and pat- 
 tern, weighing 56 pounds per lineal 
 yard for the mRin through track, the 
 switches and sidings to remain of iron 
 of the same weight and itattern. " 
 
MEMORANDUM. 
 
 17 
 
 " 4. Iron truss bridges of tho best 
 quality, ami most n|)proved plans, to 
 be ado|itP(l for the crossing of the St.- 
 Anni'S, Bat'scan, 8l. -Maurice, and Ot- 
 tfl'-.d iMvers — All other bridges to 
 remain of wood. " 
 
 " 5. All changes in gradop, plans. 
 Ac, to be made by the Contractor, in 
 conformity with Government reriuiro- 
 moiils. " 
 
 " 6. The Contractor to 
 entire right of way. " 
 
 pay 
 
 [or the 
 
 " 7. The plansand detniled sppcinca- 
 tionsof the (lilferenl works, structures, 
 buildings, and equipments, to be ap- 
 proved by the Government Engineer. 
 And all work and materials will be 
 subjected to his inspection anil ap- 
 proval, before being accepted and paid 
 for by the Government. 
 
 " 8. The Main Line to be fully com- 
 pleted and equiped to the satisfaction 
 of the Government on or before the..." 
 
 " 9. The entire consideration for the 
 Main Line to be $4,266,000. " 
 
 " 10. A revised Schedule of quan- 
 titlfsand prices, to be prepared, sub- 
 ject to the approval of the Government 
 and the Contractor, which being com- 
 puted at proper relative rates, shall 
 
 " Thf> parly of the first jmrt coven- 
 ants an I agrt't's iilso to buiM iron 
 truss brid^'t's of thi' lust rpialily, and 
 most II I'prov I'll jijan^, for IhtM-rossing 
 (if the Sli' -Aiiir <, Bdliscan, St -Mau- 
 rice, and Ottawa Himts. All other 
 bridges to remain ol wood. " 
 
 " The parly of tli" first part hereby 
 cnv«>naiits and agrees to make all 
 chang'^s in grades, plans, spncilica- 
 lidfis, and oth'TWiv, in conformity 
 With ihi' (lovi'iiime: t rtipnnjmi'nts. " 
 
 ' Notwillistandinp anything in any 
 one of th<* Contracts herein hefort.' re- 
 fiTi'd to. the said (^tntractor shall be 
 bound to furnish, at his own proper 
 cost and charg- s, aiiy and all grounds 
 n"ces8Jiry ami rf^quin-d in the ofiinion 
 of ihi' Govt'rnmpiit Enginet-r and ( om- 
 inissioners, for the servicu of the said 
 Haiiwuy." 
 
 " And it Is fully iinderstood and 
 agri'ed by aii>l beUveen both parties 
 hcrelo, that ihe prdlijps, plans, work- 
 ing drawings, ai 1 detailed sjiecitlca- 
 tions of the dillerenl works, structures, 
 huililiiigs and equipments, shall be 
 made by the said Contractor, and fully 
 a|iproved by the Government Engin- 
 eer, before work is bngun upon them. 
 And that all work and materials shall 
 be subject to his inspection and ap- 
 proval before being accepted and paid 
 for by the Government. " 
 
 " That the whole line of the Main 
 Road and Pil^s Branch, with all the 
 buildings, rolling stock, snow fences, 
 Ac, steamboat, Ac, as referred to in 
 the above recited Contracts and herein, 
 shall be fully com])leled and delivered 
 in first class order, so as tn be accepted 
 by the Government, on or before the 
 1st day of December, 1877. " 
 
 NoTK — The consideration named in 
 Ihe Contract is $4,732,387 50. which 
 includes Main Line. Piles Branch, and 
 $50,1)00 for debts of Company. 
 
 " That as to the manner of settling 
 for work already done, on the said 
 line, the amount thereof shall be as- 
 certained by the Government Engin- 
 eer, its value shall be patd by the 
 
4f 
 
 mmmmmmmmmm 
 
 18 
 
 LEGAL PBOCEEDINaS. 
 
 ill 
 
 aggregate the sum of $i ,?66,000 (for 
 the Main Line), upon which Schedule 
 an estimate or the woric already done, 
 materials procured, and expenditures 
 incurred shall be based. — And pay- 
 ment shall be made therefor in cash, 
 upon the certilicate of the Government 
 Engineer, after deducting the amount 
 received by the Contractor on account 
 thereof from the Hail way Company, 
 together with — per cent, which shall 
 be retained as security for the full 
 and faithful performance of the Con- 
 tract. " 
 
 " 11. Monthly payments, based upon 
 the same schedule, to be made upon 
 future progress estimates, as certified 
 by the Government Engineer, on or 
 before the 10th of each month, from 
 which the same percentage shall be 
 deducted, until the total amount of 
 said percentage shall reach the sum 
 off 
 
 " 12. If the location of any portion 
 of the line shall be changed — or if the 
 length of the road required to be cons- 
 tructed shall be either greater or less 
 than the distance of 158 miles now 
 contemplated and provided for, the 
 increased or diminished cost resulting 
 from such oh-tnges, as compared with 
 the cost of the present line, wi,( be 
 computed at the same schedule lates 
 Above provided for; and the total ;on- 
 .sideration will be adjusted accord. ng- 
 ly, by either increasing or diminishing 
 the amount, as the case may be. " 
 
 Schedule of prices hereunto annexed 
 marked "B," bearing date 1st Septem- 
 ber ; and the gross sum thus ascertain- 
 ed, after deducting drawback h'reiu- 
 after mentioned, and the amounts 
 already paid, the balance shall be paid 
 to the said party of the first part. " 
 
 '■ And ns to the manner of settling 
 for the work to be done hereafter 
 by the caiitractor, it shall be done as 
 follows : Monthly estimates of the 
 (juanities thereof, and of the materials 
 which are bom fide in poss'-ssion of 
 the contractor on the said Railway, 
 shall be made by the Government 
 Engineer und-^r the said schedule bj 
 him prepared marked " B," and hereto 
 annexed, and the amount thereof paid 
 (m or before the 15th day of the suc- 
 ceeding month, less such deductions 
 as are stipulated for under this con- 
 tract, as a draw-back for the due and 
 ultimate fultilment of the said work."' 
 " That ten per cent of each monthly 
 progress estimate shall be retained by 
 the Government as security for the 
 due fultilment of contract by the said 
 contractor ; and when the amount so 
 kept back shall amount to, at least 
 $100,000, live per cent on each month- 
 ly estimate thereafter may be retained 
 till the final comp'etion of th ^ contract 
 in all its parts, and the acceptanoe 
 thereof by the Government. " 
 
 " It is further agreed and under- 
 stood that in case any alterations are 
 made in the location of the line or 
 road, or in the construction jf such 
 part thereof, which will increase the 
 cost of (to) the !>aid contractor either 
 in grading, bridging, or length of line, 
 Ac , Ac. the said ctmlractor sIitII be 
 paid such additional cost /no r/i/a with 
 the scht^dnle then in force, and at 
 prices mentioned (heiein : and m case 
 of any decrease in the cost of cons- 
 truction consequent on any such 
 change of line, a corresponding deduc* 
 tion shall be made by the said con- 
 tractor, as per schedule rates." 
 
MEMOBANDITM. 
 
 i§ 
 
 " 13. ir, upon Iho pTfcclion of the 
 |)lans. nnrl Ihe coni|)Ula!ion 1 1' tim tinal 
 ({uantities. it shall be founH, during 
 tli« progress of the work, ih tt ther« 
 are maifrial ief»cls or omipsions, in 
 the Schedule herein provided for, said 
 Sch»'duie may be revised and perfect- 
 ed, — but in no event shall the total 
 amount thereof be greater or less than 
 the sum of $4.?66,000. for the full and 
 tinal completion of the Main Line, as 
 now located, and herein contemphitt'd 
 to be done. " 
 
 " 15. If the Contractor refuses or 
 neglects to meet, within a reasonable 
 time, any of the obligations or pay- 
 ments which he has assumed under 
 this .igreement. Or if he delays, tor an 
 unreasonable length of time, the pay- 
 ment for labor performed, or material^ 
 purchased for, or in connection witii 
 the work, the Government to hav; the 
 power to make such payments, nnd to 
 deduct the amount from the Contract- 
 or's Estimates. " 
 
 " 16. If the Contractor fails to pro- 
 cecute the work in a proper manner, 
 or at a rate or progress that will en- 
 sure its completion within the time 
 8p)ecified, the Governm»'nt to have th'^ 
 power to cancel the Conlraci, and to 
 enter into other arrangements for its 
 completion " 
 
 " U is further understood and agreed 
 that the Government MtHfiaeer may 
 change the Schedule cUm^T prices, if 
 found necessary, to aecure the full 
 completion of the Hoad : or in case 
 the Schedul» already made bear too 
 hard upon the Contractor; subjeci 
 however to the approval and ratiQca- 
 lion of the Lieutenant-Governor in 
 Council : but in no case shall the cost 
 of the Road e.xceed the gross price 
 hereinafter mentioned. " 
 
 " It is further agreed and under- 
 stooH, \hzl if the Contractor refuses or 
 nesfiects to meet within a reasonable 
 time, any of the obligations or pay- 
 ments which he has assumed under 
 these presents ; or if he delays for an 
 unreasonable length of time, the pay- 
 ment for labor pei formed or materials 
 [•urcliiieed for in connection with the 
 Road, then and in any of said cases, 
 the Government shall have the power 
 to make such payments, and to deduct 
 the amount thereof from the said Con- 
 tractor's Estimates. " 
 
 " Or that, if the contractor fails to 
 prosecute the said work in a proper 
 manner, or at a rate of progress that 
 will ensure its completion within the 
 time specified, that then, and in any 
 of said cases, the Government shall 
 have power to cancel the whole con- 
 tract, and to enter into other arrange- 
 ments for its completion." 
 
 under- 
 ns are 
 line or 
 
 such 
 ise the 
 either 
 ofline, 
 hnll be 
 (a with 
 ind at 
 m case 
 
 cons- 
 such 
 Ideduc* 
 Id con- 
 
 It will be seen from the above, that all the Points as 
 suggested by the Pla'titifF, are directly covered by the 
 Contract, except the " 2d," which is provided for in the 
 " 12th" ; and also the " 14th," which refers to a sub-schedule, 
 and is really provided for in the " 10th " and " 11th." 
 
 The language and terms used, are also generally identical, 
 except wher»> amplifications are introduced for the pur- 
 pose of adapting the idea?? l,o the ordinary and more for jial 
 terms of the contvacl 
 
■■■**J- 
 
 f 
 
 ■^ 
 
 TESTIMONY FOR DEFENCE. 
 
 See testimony of Mr Charles Odell. 
 
 1. That witness is in the employ of the Defendant since 
 the summer of 1874, as his Engineer in Chief, in connec- 
 tion with the North Shore Eailway ; and had a know- 
 ledge of the last contract entered into with the Provincial 
 Government ; and was engaged in the preparation of the 
 details of that contract before it w^as drawn out and 
 signed ; and the witness' office, and the professional skill 
 which it contained, w^ere quite sufficient for the purpose 
 of getting up all the estimates and details with reference 
 to that contract. 
 
 2. That subsequently to the 1st of May 1875, the Plaintiff 
 was the Consulting Engineer of the North Shore Railway 
 Company ; but witness had no communication with the 
 Plaintifi' as such Consulting Engineer. 
 
 3. That witness is certainly of the opinion that the 
 Defendant could obtain from witness, as Engineer, all 
 the information he might re(|uire in relation to his con- 
 tract, without the services of tl.e Plaintiff. 
 
 4. That upon being shown Plaintiffs Exhibit " A A " at 
 Enquete (to wit, " Points to be considered in adjusting the 
 
TESTIMONY FOR DEFENCE. 
 
 21 
 
 existing contract to a cash basis.''] Witness believes that he 
 saw a copy of the same in the office of the Defendant. 
 
 5. That witness' attention has been drawn to clause 
 twelve (of said Exhibit) ; and it seems to him to be a clause 
 which works both ways, and does not protect one party of 
 the contract more than it does the other ; and as to the 
 rest of the contract, it is rather binding- on ihe Contractor, 
 and the Government has the best of it. 
 
 itiff 
 pray 
 the 
 
 I the 
 
 all 
 
 fcon- 
 
 V at 
 the 
 
 Cross- Examined by Plaintiff. 
 
 6. That witness saw the copy of that Document this 
 morning in the Defendant's office ; and witness thinks it 
 was not in the hand-writing as that of Plaintiffs Exhibit 
 " A. A." It was the Defendant himself who showed wit- 
 ness that copy, which witness has examined, and believes 
 to be a true copy of that Exhibit, which he has also exam- 
 ined. 
 
 7. That the nature of the information given by wit- 
 ness to Defendant, and which were subsequently embo- 
 died in the contract, or used as a basis, is as follows : as 
 to the quantity of Earth and Rock work, and the general 
 clearing, grubbing, foundations, massonry of different 
 classes, track-laying and ballasting, and general equip- 
 ments of the Road. 
 
 8. That in obtaining the above informations, the witness 
 took as a basis, quantities and items from the original sche- 
 dules which were furnished by the Chief Engineer of the 
 Company, under the old contract ; and to this, witness added 
 and estimated the different quantities of the different classes 
 of work required to bring it up to the standard as 
 suggested, or called for by the Government Engineer. 
 
r 
 
 .r 
 
 2^ 
 
 LEOAL PROCEEDINGS. 
 
 9. That upon referring to clause five, in the said Exhibit 
 " A, A," witness is of opinion that if said clause being em- 
 bodi(?fl in the contract, and clause twelve being left out, the 
 Contractor would not be entitled to an advance, supposing 
 the work increased, neither would anything be deducted 
 supposing it was diminished. 
 
 10. That witness is not aware at present of the Con- 
 tractor having as yet received any advance. There has 
 been a change in location which may probably increase 
 the work, to what extent wimess cannot say, 
 
 Re-E.i(im'incd Ly Defendant. 
 
 11. That, under dame twelve, if the works are increased, 
 the Contractor is entitled to be paid therefor ; and if the 
 works are diminished, a proportionate reduction, as the 
 witness has already stated. 
 
 See testimony of J//v John T. Prince. 
 
 12, That witness is in the service of the Defendant as 
 Cashier and Accountant, since January 1874, and is aware 
 that Defendant was and is the Contractor for the building 
 of the North Shore Railway ; also that the Plaintiff was 
 the acting Chief Enjjineer for the Company, during the 
 whole time of witness' residence here, up to the beginning 
 of the year 1875, at a salary of ten thousand dollars per 
 annum, which was paid by the Contractor, through the 
 witness, as his Cashier, After the Plaintiff ceased to be 
 the Chief Engineer of the Comp any, he continued to be 
 the Consulting Engineer, at a salary of five thousand dol- 
 lars, also paid by the Contractor. 
 
TESTIMONY FOB DEFENCE. 
 
 23 
 
 13. That witness is aware that, during this period, the 
 Defendant had a Chief Engineer, that is to saj- Mr. Charles 
 Odell, the witness examined in this case. 
 
 Cross-Exa milted htj Phi'mdif, 
 
 14. Witness cannot say by whom was paid the salary of 
 the Plaintiff, of five thousand dollars, as Consultinor Eniri- 
 neer ; but witness knows the money came from Mr. 
 McGreevy, but the Plaintiff was paid at the Company's 
 office; witness knows that, because it was afterwards 
 charged to us by the Company. 
 
 See fesfimo)f?/ of Mr. Thonnf*i J. lias]:. 
 
 15. That witness has been following his profession as a 
 Civil Engineer since the year 18o4; and has been engaged 
 continually during all that time, in that capacity, in the 
 construction of Railways, in Europe. Africa, the United 
 States, and in this Dominion. 
 
 16. That the duties of a (.'ivil Enaineer in these matters 
 are : first the location of the line, fixing the proper grades 
 for the Road-bed, proper drainage, to see that the road is 
 properly constructed, both in regard to the earth-work or 
 rock-work, masonry and superstrucmr-' for bridges ; as 
 also the building of the Depots, shops, &c. : and of coitrse 
 in regard to rolling-stock ; of courso his duty is also to 
 make out the proper specificatio:l^. and prepare the neces- 
 sary estimates of work done and material delivered for the 
 construction of the Road. 
 
 17. That the witness has particularly examined the 
 Plaintiff's Exhibits ' A. A. ' " B. B," and " T," at Enquete. 
 
24 
 
 LEGAL PROCEEDINGS. 
 
 The first of these Exhibits contains the Rules for the con. 
 struction of a first class Railway, gonorally used on the 
 construction of most Roads. " B. B." is a schedule of 
 prices; and "T" seems to contain son.e amendments to 
 the first paper, and some other matters that witness is not 
 particularly acquainted M'ith. 
 
 18. That it appears to witness, that some of the clauses 
 of these documents are pretty strong in favor of the 
 Government, and against the Contractor. "Witness espe- 
 cially refers to dame seven in Exhibit " T " as a most arbi- 
 trary rule not known to him as having been used on any 
 Railroad with which he has been connected. 
 
 19. That the work and materials, and contents of the 
 said Documents or Exhibits, three in number, are within 
 the ordinary duty of a Railway Engineer. 
 
 Cross- Examined hy Plaintiff. 
 
 20. That, since three weeks after witness arrived in 
 Quebec, about four months ago, he has been in the em- 
 ploy of the Defendant as Chief Draughtsman ; and that 
 yesterday the Defendant shewed witness the Exhibits 
 spok«n of in his Examination in Chief; and told him to 
 read them through, and make up his mind as to the con- 
 tents of the said papers, for the purpose of giving evidence, 
 witness presumes in this case. 
 
 21. That witness has worked, both as Engineer of a 
 Railw^ay Company, and as Engineer of a Contractor or 
 Contractors. "When witne.-s worked as Engineer under a 
 Contractor, the Contractor had not the control of the En- 
 gineers and Engineers Departmeit of the Road, except in 
 one instance, when he worked for Messrs Peto, Bras 
 
TESTIMONY FOR DEFENCE. 
 
 25 
 
 sey and Betts, who had full control In 'he other in- 
 stances it was the Railway Companies that ha J .he oonlro. 
 of the Engineers, and Engineering Deptirtment ; as the 
 Contractors had work and were paid by the yard for 
 masonry, earth or rock-work, &c., &c., which is entirely 
 different from the system used on the North Shore Kail- 
 way, which Road is contracted for a bulk sum. 
 
 22. That witness knows nothing about the contract 
 which existed between the Defendant and the old North 
 Shore Railway Company; nor does he know any thing 
 about the existing contract between the Government and 
 the Defendant. All that witness knows is what is con- 
 tained in the Exhibits " A. A." " B. B " and " T," part of 
 which he presumes is embodied in the present contract. 
 
 23. That when the witness was acting as Consulting 
 Engineer on a Railway, had the Contractor referred to 
 witness for papers such as Exhibits " A. A." " B. B." and 
 " T," the witness would have been bound to furnish 
 papers of that kind, demanded by the Company ; and at 
 the request of the Company only. 
 
ff 
 
 i 
 
 PLAINTIFF'S EVIDENXE IN REBUTTAL. 
 
 See testimony of Mr. J. A. CharUhois, Notary. 
 
 1. That the two Contracts filed at Enqnete, Nos. " 23," 
 and " 24," are true copies of the original contracts executed 
 before witness as Notary ; the first, between the North 
 Shore Railway Company and the Chicago Contracting 
 Company ; and the other between the Defendant and the 
 North Shore Railway Company. 
 
 See testimony of Mr. Philippe ffuot. Notary. 
 
 2, That it was the witness who passed the contract 
 between the Defendant and the Provincial Government, 
 on the 24th of September of last year. A duly certified 
 and authentic copy thereof is to be found filed in this 
 cause, in Plaintifi's Exhibit at Enqnete " O." 
 
 See teftttmony of Mr. A H. Verret, Secretary. 
 
 3. That the witness was Secretary Treasurer, of the 
 North Shore Railway Company, during its existence. 
 
 I- }] 
 
plaintiff's evidence in rebuttal. 
 
 sr? 
 
 he 
 
 4. That tL Plaintiff's Exhibit " No. 22," at Enquete, is a 
 true copy of Resolution passed by said Company, on the 
 11th of August 1875, (to wit, the Resolution " declaring the 
 inability of the Company to construct the road under the 
 existing arrangements ;" and that " the Company are 
 therefore ready to allow the Government to deal with 
 the question in any way they may in the public interests 
 think proper, making such arrangements with the Con- 
 tractor as may be found necessary") 
 
 5. That under the terms of the contract between the 
 Railway Company and the Defendant, the latter was 
 bound to pay all expenses connected with the Engineer- 
 ing Department, as per Schedule ; and the Defendan 
 furnished the Company with the vouchers connected with 
 such payments. They were entered in the Monthly Esti, 
 mates and repaid him by the Company. This sum of 
 course included the salary of the Consulting Engineer, for 
 his regular services as such. 
 
 6. That in August and September 1875, the witness is 
 not aware that the Company called on the Plaintiff" for the 
 information contained in PlaitifFs Exhibits " A. A." " B. B." 
 and " T " at Enquete ; nor indeed does witness believe 
 that the Company took any step or action whatever, after 
 the 11th of August of said year, with respect to the con- 
 struction of the said road. Everything was at a stand- 
 still, waiting for the action of the Government. 
 
 6. That, after examining said Exhibits " A. A." " B. B." 
 and " T," the witness does not believe that, in the said 
 month of August, it was proper, or necessary, or the duty 
 of the Plaintiff; in his quality of Consulting Engineer of 
 the said Company, to furnish the information therein con' 
 
ii 
 
 ^fl 
 
 >(i 
 
 (:. 
 
 i m 
 
 28 
 
 LEGAL PBOCEEDINQS. 
 
 tained, to the Defendant, (the Contractor) unless he were 
 ordered to do so by the Company. It would be necessary 
 if he were ordered to do so. It was not in witness opinion 
 part of his (Plaintift's) duty, as Consulting Engineer of the 
 Company, to furnish such information to the Contractor. 
 
 Cross- Examined hy Defendant 
 
 7. That witness filled no other office than that of Secre- 
 tary Treasurer of the Company ; and it was no part of his 
 duty to direct the operations of any of the other officers of 
 the Company. He performed the general duties of a Secre- 
 tary. Witness has no personal knowledge as to the officer 
 or person to whom the Plaintiff first communicated the 
 papers above referred to ; nor at whose request they were 
 
 prepared. 
 
 Re- Examined hy Plaintiff. 
 
 8. That witness may state generally, that all work to 
 be performed by the Plaintiff", in connection with the road, 
 was notified to him by witness, as Secretary, by order of 
 the President, or of the Board. 
 
 See testimony of Mr. A, L. Light, Government Engineer. 
 
 9. That the witness has already been examined as a 
 Witness in this cause. 
 
 10. That, after examining Plain tiflTs Exhibits at Enquete 
 " A. A." " B. B." and " T," the witn-ss states that, with 
 reference to the information therei)i contained, there 
 would have been no impropriety, on tie part of the Plain- 
 tiff", in furnishing the Defendant, in August 1875, with 
 said information, supposing the Plaintiff" had furnished the 
 BttDie to the Defendant. 
 
PLAINTIFFS EVIDENCE IN REBUTTAL. 
 
 to 
 
 )ad, 
 
 of 
 
 11. That, as Consulting En.:ineer of the Company, it 
 would not havo becMi ncci'ssury for th«' PlainlifF to have 
 done so (to wit, to havt; lurnished i-aid information to the 
 Defendant) without receiv ng any order to that eflect 
 from the Company. 
 
 12. That it was not the duty of thv Plaintiff, in his qual- 
 ity of Consulting Engineer of the Company, and acting 
 as such, to furnish the Contractor to wit, the Defendant), 
 at his request, with the information contained in the said 
 Exhibits. 
 
 13. That, upon comparing Clause No. 7 of Plaintiff's 
 Exhibit " T," with Clause No. 2 of the contract between 
 the Defendant, and the Provincial Gov«.*mment, both of 
 which api)ly to the appointment of Engineers and In- 
 spectors, (the said clause No. 2 to be found at page 115 of 
 PlaintiflTs Exhibit " O,") witness states that the conditions 
 contained in the said contract, are more stringent and 
 binding upon the Contractor, than the terms contained in 
 said Exhibit ' T." 
 
 a 
 
 See testimovy of Hon. J. G. Rolertson. 
 
 14. That, in 1875, the witness was Provincial Treasurer, 
 and a Member of the Government of the Province of 
 Quebec. 
 
 15. That, in July and August of that year, witness is 
 aware that negotiations were being carried on between 
 the Government, and the Defendent in this cause, for the 
 passing of a contract for the construction of the North 
 Shore Railway, which the Defendant had previously con- 
 tracted to build with the North Shore Railway Company. 
 
 16. That, owing to the proposed relinguishing, by the 
 

 If 
 
 80 
 
 LEGAL PROCKEDINOS. 
 
 said Company, of its charter, it became necessary then to 
 have a new contract entered into for the construction of 
 the Road 
 
 17. That it was the witness, who represented the Gov- 
 ernment, in carrying on said negotiations. 
 
 18. That witness communicated with the Plaintiff, for 
 the purpose of obtaining a statement of quantities and 
 kinds of materials which enter into the construction of a 
 Railway ; and the Plaintilf furnished witness with the 
 details and inibrmation which witness required. 
 
 19. That witness addressed the Plaintiff in the matter, 
 because witness thought Plaintiff had more information 
 concerning it than any one else. 
 
 20. That witness found the information thus procured, 
 of very great service, as it enabled witness to arrive at 
 what would be, in witness" opinion, a fair value to offer for 
 the work. 
 
 21. That in so far as it was of use to witness, the in- 
 formation received by the Plaintiff certainly facilitated 
 matters, and helped to the execution of the negotiations 
 which ended in the contract. 
 
 22. That witness i,^ under the impression that he received 
 a document simUar x^ Plaintiff's Exhibit " A. A.'' at En- 
 quete, pending tb- negotiations, from the Plaintiff; witness 
 certainly received the same suggestions in writing from 
 the Plaintiff. 
 
 23. That witness knows that Mr. L'ght, the then Gov- 
 ernment Engineer, was absent from "Quebec, during a 
 portion of the time when negotiations were going on re- 
 specting the Railway ; and when Mr, Light returned to 
 Quebec, the basis of the contract in question was mostly 
 completed. 
 
R K V I EW O F T H K CAS E. 
 
 IN PiSHAI.F OF THR PLAINTIFF. 
 
 — — <»/l*^^tMV~ - 
 
 In submitting' the folic wing' Reviem of the Case, it is 
 proposed to consider it with reference to its Equitable^ as 
 well as to its Le}^al aspects. 
 
 THE EQUITY OF THE CASE. 
 
 In remarking upon this aspect of the Case, it is proper 
 to consider, first, the relative position of the respective 
 parties, both previous to, and at the date of the special 
 Ag'reement of August 18th 1875, which forms the basis of 
 this suit ; and, second, the position in which the same 
 parties would necessarily be placed, upon the consumma. 
 tion of the contingency which was contemplated, and 
 evidently intended to be provided for by the same Agree- 
 ment. 
 
 It appears that the Plaintiff, who had for many years oc- 
 cupied a prominent position in his profession, as a Railway 
 Engineer, was applied to by the representatives cf the 
 
jf W W HffiiWWW Wg^WWWH 
 
 ;.igwa:7JisaEE: 
 
 L-^ 
 
 I I: 
 
 S2 
 
 REVIEW OF THE CASE. 
 
 North Shore Railway Company, at his office, in New York, 
 in the year 1871 ; and then and there consulted respecting 
 the North Shore Railway ; and that soon after that date, 
 he came to Canada and was engaged as Consulting, and 
 Acting Chief Engineer upon the said Railway ; both of 
 which positions he held, at a salary of $10,000 per annum, 
 until May 1st 1875, when he resigned the position of 
 Acting Chief Engineer, and retained that of the Consulting 
 Engineer of the Railway Company, at the reduced salary 
 of $5,000 per annum. 
 
 It also appears, that after the Plaintiff's resignation as 
 Chief Engineer, he changed the Sign upon his office door, 
 to that of " General Consulting Engineer^ " and thus gave 
 special, as well as public notice to all persons who either 
 passed or entered that door, that he was open and prepared 
 to be considted, generally, in relation to any and all matters 
 pertaining to, or connected with his profession. 
 
 The expediency, as well as the propriety of giving such 
 notice, on the part of the Plaintiff, will become apparent, 
 when it is considered that, up to May 1st 1875, he had 
 been r*^neiving from the North Shore Railway Company, a 
 salary of $10 000 per year, which amount had been mu- 
 tually agreed upon by and between the parties, as repre- 
 senting a fair and just Equivalent, for the devotion of the 
 Plaintiffs entire time and professional services, in the 
 above dual capacity, to the interests of that Company. 
 "Whereas, after May 1st 1876, the salary of the Plaintiff 
 was reduced to $5,000 per year ; which amount was sup- 
 posed to represent an equivalent for the proportion, say 
 one half, of the Plaintiff^s time and professional services* 
 as Consulting Engineer only, which he would be liable, if 
 
EQUITY OP THE CASE. 
 
 88 
 
 so required by the Railway Company, to devote to the 
 service and interests of that Company. And the Plaintiff 
 was therefore at full liberty to seek for, and to enter into 
 other professional engagements, in order to make good 
 the deficit, of $5,000, in his yearly income. 
 
 It also appears, that the Contract which was in force 
 between the Eailway Company and the Defendant, 
 during the period above referred to, for the Construction 
 and Equipment of the North Shore Railway, {See Plaintiffs 
 Exhibits Nos. 23 and 24.) contained a provision by which 
 the Contractor agreed and undertook to pay " all the 
 expenses connected w^ith Engineering. " And also a fur- 
 ther provision, that these expenses, together with those of 
 the Railway Company, and all other expenses which were 
 legitimately connected with the Construction and Equip- . 
 ment of the Railway, should be re-paid to the Contractor by 
 the Railway Company, upon the Monthly or progress Esti- 
 mates of the Engineer ; which Estimates w^ere to be based 
 upon a Schedule of Values, for the different items of Ex- 
 penditure under the Contract, which schedule would ag- 
 gregate the total consideration named in the contract, for 
 the completion of the Railway. But the said contract 
 contained no provision by which any of the Engineers 
 named <^r referred to therehi, were \ »«< < i* the control of, or sub- 
 ject to appointment or dismissal by the Conti actor. Neither 
 is it a fact that any such power or control was ever exer- 
 cised by the Contractor, under the said Contract. 
 
 It also appears, from the said contract, that the Con- 
 tractor, in part consideration for the perforjaance thereof, 
 agreed to receive from the s'-lu Railway Company, a large 
 amount, (to wit, sever-^l Million dollars) of the Bonds or 
 

 I 
 
 5l» 
 
 K I 
 
 34 
 
 BEVIEW OF THE CASE. 
 
 debentures of said Company ; upon the sale and proceeds 
 of which, he lelied chiefly for the means to carry on and 
 complete the work. 
 
 It also appears, from the Resolution adopted by +he 
 Board of Directors on the 11th August 1875, (see Plaintiff's 
 Exhibit " No. 22 ") that, by reason of the neglect or failure 
 of the Contractor to negotiate the Bonds above referred to, 
 and his consequent inability to x>rogress with the construc- 
 tion of the Railway, the Railway Company wa^ obliged 
 to declare its inability " to construct the road under existing 
 arrangements ; " and also to declare its willingness : ■' to 
 allow the Government to deal with the question in any 
 way they may, in the public interests, think proper ; 
 making such arra?igements iviih the Contractor as may he 
 found necessary. " 
 
 It also appears that, solely in consequence of the above 
 failure on the part of the Contractor, and the subsequent 
 action of the Railway Company in relation thereto, the 
 Provincial Government entered into direct negotiations 
 with the Contractor, with a view of closing an arrange- 
 ment for the construction of the Railway, upon a basis 
 wholly of cash payments therefor, instead of a portion 
 thereof in the Bonds above referred to. (See Testimonj of 
 Hon. J. G. Robertson.) 
 
 It also appears that, pending the above negotiations, 
 between the Government i.nd the Contractor, " negotia- 
 tions ivere kept in abeyance tvith certain parlies, [see testivryny 
 of Hon. Thos. McGreevy,) who, under a previous arrange- 
 ment between the Plaintiff and the Defendant, " proposed 
 to assume the position then held by the Defendant for the con- 
 struction of the North Shore llailway ;" (see Plain»ifFs Exhi- 
 
 i 
 
EQUITY OF THE CASE. 
 
 35 
 
 )U 
 
 ^/ 
 
 la- 
 
 11/ 
 
 re- 
 [ed 
 
 m- 
 
 bit "L," bein^ Mcareevy's Letter of July 22nd 1875,, and 
 to complete the same, nuder the then existing contract 
 with the Railway Company. 
 
 It was, therefore, under the circumstances above nar- 
 rated, all of which are lully established by the Defendant's 
 admissions, and the eridence in the case, that the Defen- 
 dant had communications with the Plaintiff as General 
 Consulting Engineer, for his aid and assistance in con- 
 ducting his negotiations, and in consummating his contract 
 with the Provincial Government. See Defendant's answers 
 to Faits et Articles.) 
 
 Viewing the case in the light of these circumstances, it 
 will become quite apparent, that the Plaintiff had every- 
 thing to lose ; and that ihe Defendant had everything lo q-ain, 
 by the proposed arrangement with the Government. 
 
 The PlaintitF, owing to the lapse of time, and his entire 
 devotion to the interests of this Enterprise, had, to a great 
 extent, severed his professional engagements, and business 
 relations, in the United States ; and he was therefore 
 chiefly dependent upon the salary which he received 
 from the Railway Company, for the support of himself 
 and family ; which salary would be quite sure to be dis- 
 continued, and his services dispensed with, (as in fact 
 they have been) in case the road came under the control 
 of the Government, who had its own Engineer. While 
 on the other hand ; if the road remained under the control 
 of the Eailway Company ; and the parties were brought 
 forward who stood read> to complet<^ the road under the 
 original contract, the Plaintirf s salary as Consulting En- 
 gineer, would not only be secured to him ; but also any 
 additional advantages which might accrue to him under 
 hxs previous agreement with the Defendant. 
 
-Iff 
 
 ""■PP 
 
 86 
 
 REVIEW OF THE OAfiE. 
 
 ,- t r 
 
 The Defendant had advanced largely from his own 
 means ; and, by reason of his failure to negotiate the se- 
 curities of the Company, he had nearly or quite exhausted 
 both his means and credit, in his efforts to carry on the 
 work under the original contract ; and he would there- 
 fore soon be compelled, either to abandon the work en- 
 tirely, and thus lose the money which he had invested in it; 
 or to cIol rrangement with the parties referred, to in 
 
 his letter ol . d July, by which arrangement these par- 
 ties would, as stated in this letter, assume the position then 
 hell by the Defendant for the construction of the North 
 Shore Railioaij, and re-pay to the Defendant the amount of 
 his previous advances in connection with the Contract. 
 While, on the other hand, if a favorable contract could be 
 negotiated with the Provincial Government, the Defen- 
 dant would not only secure the prompt re-payment of all 
 past expenditures ; but he would also secure the prospect 
 of / r^e future profits in connection with his contract ; 
 together with all the advantages growing out of the sub- 
 stitution, as the second parties thereto, of a responsible Gov- 
 ernment, in lieu of an irresponsible Railway Company. 
 
 These prospective advantages had already induced the De- 
 fendant to defer the closing of the proposed arrangement 
 with the parties referred to in his letter to the Plaintiff of 
 22nd July 1875 ; and the same considerations now in- 
 duced him to make it for the interest of the Plaintiff, not 
 only to aid the Defendant, in holding " these parties in 
 abeyance^ " until the result of his negotiations with the 
 Government could be determined ; but also to aid and 
 assist the Defendant in bringiag these negotiations to a 
 speedy and satisfactory conclusion. Or, to use the words 
 
EQUITT OF TBS CASE. 
 
 8t 
 
 it 
 )f 
 
 )t 
 in 
 le 
 id 
 a 
 Is 
 
 of the Defendant, " in order thai there should be no delays ; 
 knowing that the Plaintiff had the means in his power of keep- 
 ing it back" [See admissions by Defendant, clause 14.) 
 
 An arrangement was therefore entered into, between 
 the Defendant and the Plaintifl^ by which it was pro- 
 posed, upon the consummation of the contract with the 
 Government, that the PJaintiff shouH be secured the 
 sum of $15,000 ; this beiug the precise amount of three years 
 salary as Consulting Engineer, during the probable period 
 of the construction of the Soad. 
 
 The following is a copy of the Agreement referred to, 
 and upon which the present action is based : 
 
 " Quebec, ISth August, 1875, 
 
 Dear Sir : In consideration for your extra services, Thereby 
 
 agree, that if I close an arrangement with the Provincial Go- 
 vernment of Quebec, by which the Governmemt either takes the 
 
 North Shore Railway contract off my hands, or pays me a cash 
 consideration for performing the contract, I will pay you five 
 thousand dollars upon the closing of such an arrangement ; also 
 five thousand dollars additional, within one year from that 
 date; and five thousand dollars additional, ici thin two years 
 from that date ; making in allfiftein thousand dollars. 
 
 Yours truly, 
 
 [Signed,] Thos. McGtREEVY. 
 General Seymoub, 
 
 Consulting Engineer, Sfc, Sfc , Quebec. " 
 
 It also appears, from the evidence in the case, that' the 
 Plaintiff not only refrained from using " (he means, (ichich 
 the Defendant knew he had,) of keeping the negotiations back,^^ 
 but that he 2X&0 furnished information that was of very great 
 service ; and certainly /aci7i7ate</ matters, and helped to the 
 
mmmmm 
 
 88 
 
 REVIEW OF THE CASE. 
 
 execution of the negotiations which ended in the Contract. 
 {See testimoni/ of Hon. J. G. Robertson, late Provincial Treas- 
 urer.) 
 
 When all the facts and circumstances above referred to. 
 and connected with the case, are duly considered, it is 
 respectfully submitted, that the consideration mentioned 
 in the above Agreement, provides for no more than a fair 
 and equitable compensation to the Plaintiff, for the posi' 
 Hon which he sacrificed, and the " extra services " which he 
 rendered in connection with these negotiations; while, 
 at the same time, the amount named in the Agreement, 
 was lii.i oiiiy a direct charge and obligation upon the De- 
 fendant, under his former contract with the Railway Com- 
 pany, from the payment of which he would, in all proba- 
 bility, be releiised if his present Agreement with the Plain- 
 tiff should become effective ; but it bears no comparison 
 to the other, and for srroater benefits and advantao-es 
 which were then expected to be, and were actually de- 
 rived by the Defendant, by reason of his subsequent con- 
 tract with the Provincial Government ; all of which were 
 the direct results of said Agreement. And, therefore it 
 appears that the Equity of the Case is clearly in favor 
 of the Plaintiff. 
 
 
LEGAL ASPECT OF THE CASE. 
 
 de- 
 con- 
 
 rere 
 -a. it 
 tavor 
 
 The Defendant has admitted, that he signed the Agree- 
 ment, dated 18th August 1875, upon which this action is 
 based ; and also, that the " Arrayigement ivith the Provincial 
 Government of Quebec^ " which is referred to in, and made a 
 condition of said Agreement, was duly closed on 24th De- 
 cember 1875. [Sec admissions by Defendant, clauses 3, 4, 
 and 6.) 
 
 In remarking upon the legal aspect of the case, it is there- 
 fore pro osed, in the first instance, to consider more espe- 
 cially, the precise language and terms of the Agreement in 
 question : and afterwards to consider the questions at issue, 
 between the parties, in relation thereto, in connection 
 with the testimony which has been adduced in the case. 
 
 The langxicifje and terms of the Agreement. 
 
 Referring particulary to the full copy of the Agreement 
 in question, as given on a previous page, it would cer- 
 tainly appear, that, if the precise ^'anguage and terms 
 thereof are intended, by the parties thereto, to mean any- 
 thing, they amount to a full and unqualified admission, 
 on the part of the Defendant; 1st. That he, the Defendant, 
 was indebted to the Plaintiff", " in consideration for his the 
 Plaintiffs) Extra Services,'' in the sum of "fifteen thousmd 
 dollars ; " and 2nd, That he, the Defendant, agrees to pay 
 this amount to the Plaintiff", in such instalments, and at 
 such times as are specified in said Agreement, upon the sole 
 condition that he, the Defendant, " closes an arrangement 
 
40 
 
 REVIEW OF THE CASE. 
 
 with the Prcvincial Government of Quebec, by which the Go- 
 vernment either takes the North Shore Railway contract off my 
 [the Defendant's) hands ; or pays me the Defendant) a cash 
 consideration for pej-forming^ the Contact." 
 
 The Agreement in question does not state, or even inti- 
 mate, whether the " Extra Services, " therein referred to, 
 had already been rendered by the Plaintiff; or whether it 
 was expected that he would render these services, subse- 
 quent to the date of the Agreement ; or even whether 
 these services had any relation to, or connection with the 
 " closing of the arrangement with the Provincial Groveru- 
 ment " therein referred to ; neither does the Agreement 
 impose any condition, restriction, or other obligation 
 whatsoever upon the Plaintiff, either in relation to the said 
 " Arrangement with thf Government;'' or in relation to the 
 payment of the amount therein specified, and agreed to be 
 paid by the Defendant. 
 
 The term : " In consideration for your Extra Services, I 
 hereby agree, " as used in the Agreement in question, is 
 exactly synonymous with the term : '* For value received, 
 I promise to pay,'' as ordinarily used in promissory notes. 
 And it therefore appears quite evident that, if the " arrange- 
 ment with the Government, " referred to in the Agree- 
 ment, had been consummated by the Defendant, either 
 previous to, or at the date of the Agreement ; or, if the date 
 or time of closing the said " Arrangement with the Go- 
 vernment " could have been definitely foreseen and de- 
 termined by the parties, at the date of the Agreement; 
 then, and in either of these events, the usual form of pro- 
 missory notes, signed by the Defendant, and made payable 
 at the dates, and for the iesi)ective amounts indicated in 
 
LEGAL ASPECT OF THE CASE. 
 
 41 
 
 the Agreement, would undoubtedly have been adopted by 
 the parties, instead of the form which was actually and 
 necessarily adopted in the Agreement, by reason of the un- 
 certainty as to the time when the arrangement between 
 the Defendant and the Government, therein referred to, 
 would be closed. 
 
 It is therefore respectfully submitted, that Prima facie, 
 and in view of the above facts and considerations alone, 
 the legality of the Plaintiffs claim against the Defendant, 
 under the said A.greement of 18th August 1875, is clearly 
 established. 
 
 The quesiioris at issue, and the Testimony. 
 
 A careful analysis of the PlaintifTs Declaration, and the 
 Defendant's Answer in this case, will show, that the Plain- 
 tiff distinctly alleges, that the " Extra Services, " named 
 and referred to in said Agreement, are the services which 
 he, the Plaintiff, in his capacity of " General Consulting En,' 
 gineer, " rendered to the Defendant, in connection with 
 the negotiations which resulted in a contract between the 
 Defendant, and the Provincial Grovernment, for the con- 
 struction of the North Shore Railway, upon the basis of a 
 cash consideration. And also, that it is entirely " in con- 
 sidf ration for these extra services''^ that the Defendant is in- 
 debted to him, the Plaintiff, for the amount named in said 
 Agreement. 
 
 It will also be seen, that the Defendant denies that the 
 Plaintiff rendered any such services; but alleges on the 
 contrary, that the Plaintiff endeavoured to defeat the object 
 of said negotiations. The Defend? :.t also alleges, that the 
 Plaintiff, being the salaried officer of the North Shore Rail- 
 
4t 
 
 REVIEW OP THE CASE. 
 
 way Company, at the time, must have rendered such ser- 
 vices, if they were rendered, in behalf of the said Com- 
 pany, and not for the Defendant ; Also, that, by reason of 
 the Plaintiff's holding such office under the Railway Com- 
 pany, he was disqualified and prevented from rendering the 
 Defendant any services in connection with said Railway ; 
 Also, that by fraud and pretence, the Plaintiff has already 
 received from the Defendant certain sums of money, 
 which should be allowed as an off-set to the Plaintiff^s 
 claim. 
 
 The Defendant having, as before stated, admitted the 
 execution and genuineness of the Agreement, upon which 
 this action is based ; Also the fact, that the arrangement 
 with the Provincial Grovernment, therein referred to 
 was closed on the 24th December 1875. And the Defen- 
 dant having also admitted, that during the negotiations 
 which resulted in said arrangement, or contract, he, the 
 Defendant, had communication, on several occasions, with 
 the Plaintiff, as '^^ General Consulting Engineer,"" [See ad' 
 missions by Defendant, clause 5,) in relation thereto ; it 
 therefore appears that the only real questions at issue be- 
 tween the parties, are the following : 
 
 1st. Was the legal Status of the respective parties to this 
 suit, in their relations to and with each other, on the 18th 
 day of August 1875, such as to justify the Plaintiff in ren- 
 dering the " Extra Services'' mentioned in the Agreement 
 of that date, which forms the basis of the present actio.! ; 
 and also such as to justify the Defendant in signing said 
 Agreement, and thereby placng himself under obliga- 
 tions to pay to the Plaintiff a sptcific consideration for the 
 peiformauce of such " Extra Services ? " 
 
 4 
 
liEQAL ASPECT OF THS CASE. 
 
 43 
 
 2nd. Were the ' Extra Services " mentioned in the said 
 Agreement, of 18th August 1875, actually performed by 
 the Plaintiff, in behalf of the Defendant, either before, at 
 the time of, or subsequent to the date of the said Agree- 
 ment? 
 
 3rd. Are the respective sums, named in the Defendant's 
 Answer in this cause, as having been paid by him to the 
 Plaintiff, entitled to be regarded as a just and legal set-off to 
 the Plaintiflf's claim against the Defendant, in this action. 
 
 Having thus reduced the case to the above three distinct 
 propositions, it is proposed to refer to the testimony ad- 
 duced in this case, in the order of its application, or refer- 
 ence to the foregoing propositions. 
 
 Ist. As to the legal Status of the Parties. 
 
 It appears to have been well established from the testi- 
 mony, that, prior to May Ist 1875, the Plaintiff had been 
 the Acting Chief Engineer of the Railway Company, and 
 that at the date of the Agreement, the Plaintiff occupied 
 the position of the Consulting Engineer of the said Company ; 
 and that as such Consulting Engineer he was receiving 
 from the Company, a salary of five thousand dollars per 
 annum ; which salary, according to the terms of the then 
 existing Contract, was provided t> *> , and actually was 
 in the first instance, advanced to the Railway Company 
 by the Contractor ; and afterwards refunded to him, in 
 Monthly estimates, as per Schedule, {^ee Testimony for 
 Defence, clauses 12 4*14. Also P aintifs Evidence in Re- 
 buttal, clause 5. Also Plaintiff's Exhibits '-2^," Sf "24" 
 at Enquete.) 
 
 It also appears that, at the same date, the Plaintiff oe- 
 
44 
 
 REVIEW OF THE CASE, 
 
 I 
 
 ( 
 
 cupied c.n office for business purposes, in the City of Que- 
 bec, upon the entrance door to w hich was affixed the 
 Sign, " General Consulting Engineer." {See at/missions by 
 Defendant, clause 22. A/ so Facts proven by Plaintiff. <" 4.) 
 It appears to have been equally well established from 
 the testimony, and the admissions of the Defendant, th'at 
 at the date of the Agreement, the Defendant was the Con- 
 tractor for the construction of Ike North Shore Rn.'hvaj/, under 
 the said Railway Company ; Also, that, at iho same date, 
 the Defendant was engaged in negotiations with the Pro- 
 vincial Government of Quebec, with a view of obtaining 
 a contract for building the North Shore Railway, on the 
 basis of a cash consideration. [See admissions by Defendant 
 clauses 1 4* 2.) 
 
 It also appears that, about a week previous t( date 
 
 of said Agreement ; to wit, on the 11th of August, 1875, 
 
 the North IShore Railway Company adopted a Resolution, 
 
 «' declaring the inability of the Company to construct the Road 
 
 under existing Arrangements ; and that the Company are 
 
 therefore ready to allow the Grovernment to deal with the 
 
 question in any way they may in the public interests think 
 
 proper, making such arrangements with the Contractor as 
 
 may be found necessary. " Also that, after the passage of 
 
 said Resolution, the said Railway Company did not take 
 
 " any step or action whatever with respect to the construction 
 
 of the said Road ; everything was at a stand-still, waiting 
 
 for the action of the Government. " {See Plaintiff's evidence 
 
 in rebuttal, clauses 4 <^ 6. Also Exhibit No. 22.) 
 
 It also appoars that, previous to the date of said Agree- 
 ment, and during all said negotiations between the Defen* 
 dant and the Provincial Government, the Defendant had 
 
LEGAL ASPECT OF THE CASE. 
 
 45 
 
 (ommunicnfions with the Plaintiff as General Consulting En- 
 gineer, concerning documents which the l'hiintifl'i«tated 
 that the Treasurer of the Province had put into the Plain- 
 tift''s hands, to prepare a contract with the Government, 
 and assist the Treasurer in making a contract. [See ad- 
 missions by Defendant, clause o.) 
 
 It also appears that the Defendant vas very desirous that 
 the preparation of the Contract, Schedules, and Estimates 
 should be put through as soon as possible, and that there 
 should be no delays ; also, thai during these interviews, (to 
 wit, w^ith the Plaintiff as General Consulting Engineer) the 
 Defendant signed an Agreement with the Plaintiff, upon 
 which this action is based, " in order that that there should 
 be no delays ; knowing that the Plaintiff had the means in his 
 power of keeping it back ; " also that the Defendant " would 
 not have signed snid Agreement, under any other circum- 
 stances.^^ [See admissions by Defendant, clauses 13 & 14.) 
 
 It also appears, that the said negotiations betw^een the 
 Defendant and the Government, were initiated and carried 
 on, for the reason that, otving to the proposed relinquishing 
 by the Railv)ay Company of its Charier, it became necessary 
 to have a new contract entered into for the construction 
 of the Road. [See Plaintiff's evidence in rebuttal, clause 16.) 
 
 It also appears that, previous to the date of said Agree- 
 ment, the Defendant was desirous of obtaining respon- 
 sible parties to advance the means in carrying out his ori- 
 ginal Contract with the Eailway Company ; and that the 
 Defendant entered into arrjingements with the Plaintiff to 
 that effect; also, that the Defendant was aw^are that the 
 Plaintiff had procured parties who w^ere willing to assume 
 an interest in said contract ; also, that the Defendant had 
 
46 
 
 REVIEW OF THE CASE. 
 
 I 
 
 met said parties with the Plaintiff : and had also commu- 
 nicated with said parties, through the Plaintiff, in writing, 
 with a view of closing an arrangement ; also that negotia- 
 tions with said parties were k(pt in abeyance, during the 
 Defendants pending negotiations with the Government. 
 [See admissions by Defendant, clauses 10 Sf 21. Also Plaintiffs 
 Exhibit " L " at Enquete.) 
 
 Having thus stated, -with some particularity the res- 
 pective positions occupied by each party ; together with 
 the relations which existed between them; and the cir- 
 cumstances w hich surrounded the North Shore Railway, 
 at the date of the Agreement in question ; it remains to 
 consider, whether there was anything in these relations 
 which rendered it unjust and illegal, for the parties to enter 
 into this Agreement ; or that should present any bar to 
 its enforcement. 
 
 It is well understood, both in and out of the Engineering 
 Profession, that the duties pertaining to the office or posi- 
 tion of a ConsvJting' Enginc^r, are, as the term clearly 
 indicates, and as is equally w^ell understood when the 
 terms Counsel and Consulting are applied to other Pro- 
 fessions, entirely of an advisory, and not of an executive 
 nature; and it is also understood, that the services of a 
 Consulting Engineer are due only to, or in the interest of 
 the perty by whom he is appointed ; and that these per- 
 vices are due, even to this party, only when the Consulting 
 Engineer is regularly and officially called upon for counsel 
 und advice respecting matters which are legitimately con- 
 hected with his profession, and in which the party by 
 -whom he is appointed has a direct interest. 
 
 It does not appear from the evidence, that the Railway 
 
LEGAL ASPECT OP THE CASE. 
 
 47 
 
 by 
 ray 
 
 Company ever called upon, or reqnired the Plaintiff to 
 render any soivice, or to take any part in connection 
 "with the negotiations between the Defendnrit rnd Ihe Gov- 
 ernment; or, that either the Defendant or the Govern- 
 ment ever requested the Railwav Company to reqnire the 
 Plaintiff to furnish any information, or to render any ser- 
 vice in connection therewith. On the contrary, it does 
 appear from the evidence, that, " after the 11th August, 
 1875, the Railway Company took no step or action what- 
 ever with respect to the construction of the Road. " [See 
 Plaintiff's evidence in rebuttal, clavse 6.) 
 
 Such having been the Professional, and consequently 
 the Legal Status of the Plaintiff, in his official relatio.is 
 with the Railway Company, at the date of ihe Agreement 
 in question ; therefore, ni the absence of any request or 
 instructions from the Railway Company, respecting the 
 pending negotiations between the Defendunt and the 
 Provincial Government ; and with a full knowledge of 
 the fact that the Company had no interest, and was taking 
 no part whatever in these negotiations, it appears quite 
 evident that the Plaintiff was at full liberty, either to 
 remain entirely passive and neutral in respect of these 
 negotiations ; or to take such action in relation to them as 
 would be best calculated to promote his own interests ; 
 particularly so long as such action could by no possibility 
 prove contrary to tho wishes, or derogatory to the interests 
 of the Railway Company, whoso wishes and interests 
 alone, either in this or any ether matter connected with 
 the Railway, he was justly bound to look after and pro- 
 tect, so long as he remained the Consulting Engineer of 
 the Railway Company. 
 
48 
 
 BKVIKW OF THE CASE. 
 
 i !^ 
 
 It is therefore quite clear, from the premises, that what- 
 ever action the Plaintiff' might conclude to take, in respect 
 of the negotiations in question, must of necessity be en- 
 tirely outside of, and disconnected frOm the duties and 
 services pertaining to his official position as the Consulting 
 Engineer of the Railway Company ; and consequently that 
 such services, if rendered in behalf of eithe ? the parties 
 to the negotiations in question, would ver^ properly be 
 regarded as " Extra Services'' 
 
 It has been shown in the preceding remarks upon the 
 " Equity of the case" " that the Plaintiff had everything 
 to lose ; and that the Defendant had everything to gain by 
 the proposed arrangement with the Government;" for the 
 reason that, by its consummation, the Plaintiff would be 
 quite sure to be deprived of his salary of $5,000 per year, 
 as the Consulting Engineer of the Company, during the 
 three years that w^ould probably be required to complete 
 the Railway; while, on the other hand, the Defendant 
 would not only be released from the further payment of 
 this salary, and repaid for all his past expenditures 
 under his original contract ; but he would also secure the 
 prospect of large future profits in connection with his 
 proposed contract with the Provincial Government. 
 
 The Plaintiff" had been the Acting Chief Engineer of the 
 Railway, during several years previous to May 1st 1875; 
 and had, during that time, acquired a thorough knowledge 
 of the details and cost of the different w^orks ; which know- 
 ledge, although it had been acquired previously to the 
 time of the negotiations in qU'^stion, and not in the Plain, 
 tiff's Capacity of Consulting En^'^ineer^ was likely to prove 
 of very great service to the Defendant, in facilitating his 
 negotiations with the Government. 
 
LEGAL ASPECT OF THE CASE. 
 
 49 
 
 n. 
 
 re 
 lis 
 
 The member of the Government who was conducting 
 the negotiations with the Defendant, had applied to the 
 Plaintiff for a statement of quantities and kinds of materials 
 which enter into the construction of a Eailwav, •' because, 
 (to use his own words) he iJwtighl the Plaintiff had more 
 information concerning the matter than any one etsef not, it 
 will be observed, because the Plaint: I was. at the time, the 
 Consulting' Engineer of the Eailway Company ; but evi- 
 dently because it v^'as within the knowledge of the mem- 
 ber of the Government, that the Plaintiff had acquired the 
 information sought for, during his long experience as the 
 Chief Engineer of the Road. 
 
 The Defendant was told bv the Plaintiff, that the Treas- 
 urer of the Province had called on him (the Plaintiff to 
 assist him (the Treasurer) in preparing the draft of Con- 
 tract, Schedules and Estimates ; and the Defendant, being 
 very desirous that the thing should be put through as 
 soon as possible, and that there should be no delay, 
 signed an Agreement with the Plaintiff, upon which this 
 action is based, in order that there should be no delays ; 
 knowing that the Plaintiff had thf- means in his power of 
 keeping it back, {see admissions by Dejendant, clauses 12, 13 
 afid 14) ; "Which Agreement, as will be seen, provides 
 only for an amount equal to a continuation of the Plain- 
 tiff's salary of $6,000 per year, for a term of three years ; 
 and thus secures, or was evidently intended to secure the 
 Plaintiff against this loss of income, which otherwise 
 appeared to be inevitable, in the event of a successful ter- 
 mination of the pending negotiations betw^een the Defen- 
 dant and the Government. 
 
 If injustice was done by the Plaintiff to the Railway 
 
50 
 
 REVIEW OF THE CASE. 
 
 4 
 
 Company, by reason of the above Agreement, it would 
 appear that the Company itself would hare been the 
 proper party to call him to account therefor, rather than 
 the party in whose favor or interest the Plaintiff is alleged 
 to have committed such act of injustice ; particularly 
 when it is considered that the official relations which the 
 Plaintiff sustained towards the Railway Company, were 
 well understood by the Defendant, when he signed the 
 Agreement; notwithstanding which, he did not scruple 
 to avail himself of the benefits of the Plaintiff's Extra 
 Services, in connection with his negotiations, and sub- 
 sequent Contract with the Government. 
 
 Referring to the allegations contained in the Defendant's 
 Answer, to the effect, that the services in question were 
 such as pertained to the Plaintifl''s Oliicial position as the 
 salaried ofiicer of the Railway Company ; and also, that 
 by continuing to hold said office, the Plaintifl was disqual- 
 ified from rendering the Defendant any services in connec- 
 tion with said Railway, it will be seen from the testimony, 
 given by experienced members of the Engineering pro- 
 fession, that the Defendant had no claim upon the Plaintiff, 
 for services of this nature, in his capacity of the Con- 
 sulting Engineer of the Railway Company ; and also, that 
 there was no impiopriety in his rendering such irvices to 
 the Defendant, even in his official capacity, in case he 
 voluntarily inclined to do so. {See testimony for Defence 
 clause 23; also Plaintiff's evidence in rebuttal, clauses 10, 11 
 and 12.) From which it will appear, that, taking the 
 Defendant upon his own assumec ground, there could 
 have been nothing unjust or illegal in the transaction. 
 
 When it is considered that the Railway Company, whoso 
 
LEGAL ASPECT OF THE CASE. 
 
 51 
 
 d 
 
 " salaried officer " and nominal servant, the Plaintiff was, at 
 the date of the Agreement in question, had become practi- 
 cally effete ; and that it was taking no part or interest 
 whatever, either " in the construction of said Eoad" or in the 
 pending negotiations between the Defendant and the Go- 
 vernment ; and when it is further considered, that the ser- 
 vices referred to in said Agreement, were sought for and 
 required by the Defendant, to use his own words : •' In 
 order that there should be no delays ; knowing that the Plain- 
 tiff had the means in his power of keeping il back"* ; also that 
 the Agreement would not have been signed by the Defen- 
 dant " under any other circumstances " ; it will become 
 quite clear, that the term •' Extra services," as used in said 
 Agreement, was understood by the parties, as referring- to 
 certain services of an extraordinary ual re, that were quite 
 indepeudant, distinct, and separate from the Plaintiff's or. 
 dinary services as the Consulting Engineer of the Railway 
 Company. Or, in other words, that the Plaintiff was ex- 
 pected to lose no time in preparing and furnishing the 
 offi^cer of the Grovernmeiit, with whom the Defendant was 
 then engaged in carrying on his negotiations, with such 
 extra information, aid, and assistance, as the said officer re. 
 quired for the purpose of carrying on these negotiations in- 
 telligently ; and also " in preparing the draft of Contract^ 
 Schedules and Estimates " ; all of which was to. be done 
 " in order that there should be no delays.' 
 
 Therefore, in view of all the facts and considerations 
 connected with the case, it is resi>ectfully submitted, tha 
 the services referred to in said Agreement, were not con- 
 templated or required to be rendered, by the Plaintiff, for 
 or in behalf of the Railway Company. And also, that there 
 
52 
 
 BEVIEW OF THE CASE. 
 
 i 
 
 was nothing contemplated by, or connected therewith, 
 that should prevent the legal consummation, by the parties 
 thereto, of the Agreement dated August 18th 1875. 
 
 2d. As to the Extra Services rendered. 
 
 Inasmuch as the nature and extent of the services 
 
 contemplated to be rendered by the Plaintiff, under and 
 
 by virtue of the Agreement in question, have been fully 
 
 discussed in the preceding article, it will be unnecessary 
 
 to renew the discussion here, further than to state generally, 
 
 that, according to the allegations of the Plaintiflf, and the 
 
 admissions of the Defendant, these services ivere to consist 
 
 on the part of the Plaintiff, in the furnishing of information, 
 
 and otherwise rendering aid and assistance to the Defendant, 
 
 and to the Provincial Government, that would be the means 
 
 of ficilitating the negotiations then pending between the 
 
 partifs; and also of hastening the final consummation of a 
 
 contract between them, for the construction of the North Shore 
 
 Railway. 
 
 With reference to the performance of the above ser- 
 vices on the part of the Plaintiff, it appears from the 
 testimony, that, immediately after the signing of the said 
 Agreement, the Defendant explained to the Plaintiff, that 
 there was a difference of a large amount, say four hundred 
 and fifty thousand dollars, (the Defendant cannot state the 
 exact amount) between the Defeidant and the Government, 
 respecting the consideration for he Main Line alone ; also 
 that this difference was harmonized, by the terms of the 
 contract being agreed upon, and ready, about the last days 
 of August; (to wit, within a few. days after the signing of 
 the Defendant's Agreement with the Plaintiff, of August 
 
LEGAL ASPECT OF THE CASE. 
 
 53 
 
 10 
 
 s 
 )f 
 
 st 
 
 
 18, 1875) ; also, that the PlaintitF prepared the draft of a 
 contract to be executed by the parties (See admissions by 
 Defendant, clauses 15, 17 and 18.i 
 
 It also appears that the Plaintiff prepared and placed 
 at the disposal of the Government, and the Defendant, 
 certain important documents ; to wit, " Points to be con- 
 sidered in adjustinii: the existing contract to a cash basis ;" 
 " Remarks upon the form of contract, ^^c." " A statement of 
 quantities and materials ;" together with " Schedules of rela- 
 tive cash values, 4*c." {See Fads proven b'j Plaintiff, clauses 
 Q and 11 ; also Plaintiff^ s Evidence in rebuttal, clauses 18 and 
 22 ; also testimony for Defence, clauses 4 and 6. Also Plain- 
 tiff's Exhibits at Enquete " A. A:' " B. Br and " T.") 
 
 It also appears, that the above information and docu- 
 ments were found to be " of very great service"'; and that 
 they " certainly facilitated matters, and helped to the execution 
 of the negotiations which ended in the contract ^ i^See Plain- 
 tiff's Evidence in rebuttal, clauses 20 and 21.) 
 
 It also appears, that much of the language, and many 
 of the entire paragraphs, which were embodied in the 
 documents so furnished by the Plaintiff, were subse- 
 quently embodied in the contract between the Defendant 
 and the Government ; also that many of these clauses and 
 provisions, were exceedingly favorable to the Defendant. 
 [See Facts proven by Plaintiff, clauses 11 and 12 ; also 
 " Memorandum, showing the identity or similarity of certain 
 paragraphs, iV^-") 
 
 It also appears, by reference to " clause 7," of Plaintiff's 
 Exhibit " T,' that the Plaintiff suggested a provision to be 
 embodied in said contract, which would have been much 
 less stringent and binding upon the Contractor, than the 
 
54 
 
 BEVIEW OF THE CASE. 
 
 I 
 
 provision, with reference to the same matter, which was 
 subsequently embodied in the contract, in clause 2, at 
 page 115, of Plaintiffs Exhibit " O." (See Plainlifs 
 Evidence in rebuttal, clause 13.) 
 
 Also, that two important provisions, w^hich were con- 
 tained in the original draft of said contract, and which 
 would have been very detrimental to the Defendant's 
 interests, were recommended to be stricken out, by the 
 Plaintiff; and were so stricken oat, and not embodied in 
 the contract, as iinally executed. {See Plainiiff^s Exhibit 
 " 3'." clauses 4 and 12, and compare with Existing Contract.) 
 
 It also appears that said contract was ready, about the 
 last days of August, 1875 ; but that owing solely to the 
 delay of the Government, it was not signed until the fol- 
 lowing 24th of September. See Admissions by Defendant, 
 clause 17.) 
 
 It also appears, that previous to the signing of the 
 said contract by the Defendant, lo wit on the 23rd of 
 September, 1875) ihe Plaintiff, by letter, called the partic- 
 ular attention of the Defendant to the absence of a most 
 important provision in said contract ; which omission was 
 duly provided for " at the last moment " before the execution 
 of the contract, when a " cash consideration was substituted 
 by the Government, in lieu of the #125,000 subscribed by 
 the Municipalities ;"' referred to in the said letter. (See 
 Admissions by Defenlant, clauses 9 and .'9 ; also Plaintiff^ s 
 Exhibit at Enquete '' il.") 
 
 It also appears that, several months subsequent to the 
 negotiations, and the execution of <he contract between 
 the Defendant and the Provincial Government, and also 
 of the approval of said contract by the Provincial Legis- 
 
 i 
 
LEGAL ASPECT OF THE CASE. 
 
 55 
 
 lature, (to wit, during the months of FebruaTy, April and 
 May lfc75,) Ihe Defendant, without protest, or notice to the 
 Plaintiff of his objection thereto, made certain promises 
 and payments to the Plaintiff, on account, {as alleged by 
 the Defendant, in his Answer in this cause) of the consider, 
 ation named and provided for in said Agreement, of 
 August 18th 1875; which promises and payments, were 
 accompanied by written and verbal assurances, on the part 
 of the Defendant, that further payments would be made on 
 account thereof, at some future day ; to wit : that, near Ike 
 Montreal Bank, last Februar?/, the Dt.fcndant slated verbally 
 to the Plaintiff, that he intettded to rail on Plaintiff, and give 
 him a sum of money, in consideration of ihe agreement made 
 with the Plaintiff. {See admissions by Defendant, rlavsc 20.) 
 Also, that on April 1 7th 1815, the Defendant wrote to 
 Plaintiff, as follows : " / ivill call and see you vnlhovt fail to- 
 morrow ." Also, that on May 1st 1875, he wrote to Plaintiff 
 again, as follows : '• I was vnabU to finish your matter to- 
 day ; but will not fail to do so on Wednesday, on my r turn. 1 
 would have sent yon the notes, but thought it no use without 
 the cash.'' Also, that on May 4th 1875, he wrote tc Plaintiff 
 again, as follows : " / enclose you tiro notes for iwelv and 
 fifty dollars each, at three and four months, which is all I can 
 do at present at least for a feiv days, until 1 get some money.''' 
 /See Plaintiff's Exhibits of said letters.^ Thereby admitting, 
 within one month before the commencement of this suit, and 
 several months after the consummation of the arrangement 
 with ihe Provincial Government, referred to in said Agree- 
 ment, not , only the Defendant's high appreciation of 
 the services rendered by the Plaintiff; but also his obli- 
 gation to pay to the Plaintiff, the full amount of the 
 consideration specified in uaid Agreement. 
 
56 
 
 REVIEW OF THE CASE. 
 
 I, 
 
 If there had been the least foundation for the allega- 
 tions contained in the Defendant's Answer ; to the effect, 
 that the Plaintiffs services were performed in behalf of 
 the Railway Company, and not for the Defendant ; or, that 
 he had acted adversely to the Defendants interests ; or, that 
 he had used, fraud and deceit, in obtaining the above 
 payments from the Defendant ; a sufficient time, had cer- 
 tainly elapsed, previous to said payments, and the com- 
 mencement of this suit, to have enabled the Defendant 
 to make good these allegations; but it appears that no 
 evidence whatever has been adduced by him, in relation 
 to these matters; and they therefore necessarily fall to the 
 ground, at least so far as this suit is concerned. 
 
 In view, therefore, of all the foregoing facts and cir- 
 cumstances connected with the case, it appears quite evi- 
 dent that the Plaintiff, in good faith, performed, not only 
 the Extra services, referred to in the said Agreement of 
 August 18, 1875, J " consideration for which, the Defendant 
 agreed to make certain payments, as therein specified ; — 
 but that the Plaintiff also performed other important services, 
 in connection therewith, which enured greatly to the 
 profit and advantage of the Defendant. 
 
 3(7. As to the payments already made. 
 
 '■'M 
 
 The Defendant, in his Answer, alleges that he, the De- 
 fendant, paid the sum of two hundred dollars to J. Gr. 
 Colston, Esq., Advocate, at the request and upon the written 
 order of the Plaintiff. 
 
 He also alleges, that the PhintifF, through fraud and de- 
 ceit, obtained from him his, the Defendant's, two negoti- 
 able notes for the sum of twelve hundred dollars each ; 
 
LEGAL ASPECT OF THE CASE. 
 
 67 
 
 but he produces no evidence to establish either of the 
 above allegations. 
 
 The only evidence in the case, which seems to bear 
 upon this question, are the Plaintiff's exhibits at enqueto 
 " F." " G." and " H." being h-tters addressed by the Plain- 
 tiff S the Defendant, under the respective dates of May, 
 2nd, May 4th and May 6th. 1875 ; in the first of v, Inch tlxe 
 Plaintiff" states to the Defendant, the terms by which the 
 Agreement of August 18, 1875 may be paid and cancelled, 
 to wit : " The payment of $2,300 cash, and the Defendant's 
 note at sixty days for $1,250, and another for the same 
 amount at ninety days ; which, with the $200 paid to Mr. 
 Colston, will close up the fust instahneni o/" $5,000, due on the 
 24fh December last ; also for the other instafments of $5,000 
 each, the Defendant's four notes of S2,500 each, payable 
 respectively Jan. 1, 1877, July 1, 1877, Jan. 1. 1878, and 
 July 1, 1878 ; all of which notes to be made payable to the 
 Defendant's order." In the second of these letters, the 
 Plaintiff acknowledges to have received from the Defen- 
 dant two notes, similar to those described in the Defendant's 
 allegation. And in the third letter, after referring again to 
 the receipt of the same two notes ; and stating that he, the 
 Plaintiff, was quite at a loss to understand the Defendants mo- 
 tive for sending the notes, the Plaintiff makes the following 
 statements respecting the two notes, and also the amount 
 alleged to have been paid to Mr. Colston ; together with a 
 full statement of his account with the Defendant, at that 
 date. 
 
 " Upon consulting with my Attorney, however, the same 
 evening; and looking over our previous correspondence 
 respecting my claims against you, as per your Agreements 
 
58 
 
 REVIEW OF THE CASE. 
 
 I 
 
 dated June 21, 1875, and August 18, 1875, respectively, it 
 became quite apparent that you intended me to apply the 
 procL-eds of the notes in part payment of the amounts, long 
 past due upon these Agreements ; and I therefore took the 
 .liberty, on the following morning, of placing the notes in 
 the hands of a Notary, for sale, upon the best possible 
 terms. 
 
 " The Notary has ju.st returned me an account of sales, 
 fi'>ru which it appears that the net proceeds of the notes 
 i^mouni to $2,150. 
 
 " The account between us, as per the Agreements above 
 referred to, exclusive of interest, will therefore now stand 
 as follows : 
 
 Per Agreement dated Jane 21, 1875. 
 
 •• Amount of 6o«ws due Sept. 24, 1875 $5,000 
 
 Balance of salary due monthly from May 1st 1875 
 
 to May 1st, 1876 $5,000 
 
 Total $10,000 
 
 Per Agreement dated August 18, 1875. 
 
 Amount of first instalment, due Dec. 24, 1875 $5,000 
 
 Total amount.. 
 Deduct amount paid Mr. Colston, Apr 
 
 1876 
 
 Deduct proceeds of two notes received 
 
 May 4,1876 $2,160 $2,350 
 
 *iu,000 
 
 $?oo 
 
 
 1 
 
 Balance due upon both Agreements. 
 
 $12,650 
 
 •' You would therefore oblige me by informing me, at 
 
LEOAL ASPECT OF THE CASE. 
 
 59 
 
 )0 
 
 50 
 
 at 
 
 your earliest convonience, as to which of these respective 
 Ag-reements, you d« sire, or intended to have me credit the 
 payments which you have already made on their account; 
 BO that the amount due under each Agreement may be 
 distinctly under-stood." 
 
 Inasmuch as the Defendant had not furnished the 
 Plaintiff' with the information asked for in the above letter, 
 previous to the commencement of the i>resent action ; and 
 as he has produced no evidence upon the subject, it is 
 therefore respectfully submitted, that it was evidently the 
 Defendant's intention, that the payments therein referred 
 to, should be credited to the portion of the account therein 
 rendered, which had been longest due to the PlainiifF, to 
 ■wit, under the Agreement therein referred to, of June 21, 
 
 1875. 
 
 "With reference to tiie amount of " Salarj/ as Consnllii'g 
 Emiineer, " which the Plaintiff is alleced to have received, 
 between the 1st November and 1st May last, " of the 
 money of the Defendant, paid to him by the Government 
 of this Province " etc., it is sufficient to state ; first, that 
 the same provision is contained in the Government con- 
 tract, wath reference to the payment, by the Contractor, of 
 ^^ AILEnmneering Expenses.'" (except those of the Govern- 
 ment Engineer^ ; and his subsequent re-imbursal through 
 the monthly estimates, as was contained in the original con- 
 tract. {See clause 11, page 1 IT, of Plaintiff's Exhibit " O.") ; 
 and, second, that any salary so received by the Plaintiff, 
 must have been acknow^^edged, by the Railway Commis- 
 sioners, as being justly due the Plaintifi; from the North 
 Shore Railway Company, on account of his regular services 
 as' the Consulting Engineer of said Company, during the 
 
11 
 
 i 
 
 60 
 
 REVIEW OP THE CASE. 
 
 
 ■'' :^ 
 
 then current year of his engagement as r.ach ; and that the 
 amount was therefore payable by the Contractor (the De- 
 fendant) under his contract with the Government : (See 
 Plaintiff's Exhibit " Or— clause 21, pa^e 119.) 
 
 Attention is also called, in this connection, to the alle- 
 gation contained in the latter portion of the " Defendant's 
 Amwer,'' to the eiFect, that the Plaintiff was not entitled to, 
 and did not earn his salary as Consulting Engineer, be- 
 tween Isfc Nov., 1875 and 1st May, 1876, "inasmuch as the 
 said Plaintiff did not render the said Defendant any services, 
 and was not in his employ during the said time " ; from 
 which it appears that this portion of the Defendant's 
 Answer is in direct contradiction to the theory advanced 
 by him in a previous allegation contained in the same 
 Answer : where the Defendant alleges, in substance, that 
 the Plaintiff was disqualified from rendering the Defendant 
 any services, by reason of his being the salaried o/ficer of 
 the Railway Company. 
 
 It becomes quite evident, therefore, that this alleged 
 payment to the Plaintifl', on account of salary for his re- 
 gular services as the Consulting Engineer of the Railway 
 Company, of which however there is no proof, has no re- 
 ference to, or connection whatever with, the " Extra Ser- 
 vices " rendered, or to be rendered to the Defendant, under 
 and by \irtue of the Agreement of August 18th, 1875. 
 
 In view of all the tacla in the case, it is therefore respect- 
 fully submitted, that the Defendant has no just and le^al 
 off-F.et to the demand of the Plaintiff, as contained in his, 
 the Plaintiff's Declaration in this case. 
 
 % 
 
CONCLUSION. 
 
 <' 
 
 It appears, from the foregoing review of the case, that 
 the following facts in relation thereto, have been clearly 
 established : 
 
 1st. That the Equity of the case is clearly in fsivor of the 
 Plaintiff. 
 
 2nd. That, by the language and terms of the Agreement of 
 August 18th 1875, the Legal aspect of the case is prima facie 
 in favor of the Plaintiff. 
 
 3rd. That the legal status of the Plaintiff, in his relations 
 to and with the Railway Company, and the Defendant, 
 were such as to justify him fully in rendering the " Extra 
 services " referred to in said Agreement, and in receiving a 
 specific consideration therefor. 
 
 4th. That these Extra Services were not only promptly, 
 and in good faith, performed by the Plaintiff, in behalf of 
 the Defendant ; but he also performed other services in 
 connection therewith, which enured greatly to tlie profit 
 and advantage of the Defendant. 
 
 5th. That the payments alleged to have been made by 
 the Defendant to the Plaintiff, do not appear to have been 
 intended by the Defendant, nor acknowledged by the 
 Plaintiff, as applying to the consideration specified in the 
 Agreement of August 18th 1875. And therefore these 
 payments cannot justly be regarded as a legal set-off in 
 this action. 
 
 6th. That every allegation contained in the Plaintiff's 
 Declaration, has been/w/Zy corroborated by the admissions of 
 the Defendant, and the testimony in the case ; while not a 
 
62 
 
 REVIEW OF THE CASE. 
 
 ■P. 
 
 I' 
 
 m 
 
 single allegation contained in the Defendant's Answer, is 
 sustained by the evidence, except the one which charges 
 the Plaintiff with having been the ' Salaried Officer of the 
 North Shore Railway Company," which fact is freely 
 admitted by the Plaintiff ; and must have been well 
 known to the Defendant, both at the time of signing the 
 Agreement in question, and during all the time when he 
 was receiving the full benefits of the arrangement therein 
 provided for. 
 
 7th. That the Defendant, having alleged, that the Plaintiff 
 acted adversely to, and opposed the Defendant's interests, 
 wishes, and desires in the matter ; and also that the Plaintiff 
 obtained the Defendant's money and votes by means of 
 deceit, pretence, and concealment ; and having offered no 
 proof, and produced no evidence in support of these allega- 
 tions against the honesty and good name of the Plaintiff, 
 has not only virtually admitted the untruthful and ficti- 
 tious nature of his entire defence in this case ; but he has 
 also shown a degree of malice towards the Plantiff ; as well 
 as a disregard for his own legal obligations, which deserve 
 the censure of the Court. 
 
 It is therefore respectfully submitted, in conclusion,, 
 
 that in view of all the facts and considerations connected 
 
 with the case, the Plaintiff is both equitably and legally 
 
 entitled to a judgment against the Defendant, for the sum 
 
 of five thousand dollars, with interest and costs. 
 
 TASCHEREAU and FORTIER, 
 
 Attorneys for Plaintiff. 
 
 R. ALLEYN, 
 
 Counsel. 
 Quebec, December, *7th 1876. 
 
 k 
 
JUDGMENT OF THE COURT 
 
 COi'Y OF JUDGMENT RENDERED BY THE 
 
 HONORABLE ANDREW STUART. 
 
 JUSTIC1-: OF THE SUPERIOR COURT, ON JTH KE15RUARY 1S77, 
 
 Considering that the Defendant hath failed to prove the 
 allegations of his plea of Perpetual Exception, in this cause 
 fyled, the same is hence dismissed. 
 
 Considering" that the Plaintiff hath proved the material 
 allegations of his Declaration ; and more particularly, that 
 the Defendant, if he closed an Agreement with the Pro- 
 vincial Grovernment of Quebec, by which the Government 
 either took the North Shore Railway Contract off his hands ; 
 or paid him a cash consideration for performing the 
 Contract ; in consideration of the Plaintiffs Extra Services, 
 agreed to pay the Plaintiff five thousand dollars upon the 
 closing of such an arrangement ; also five thousand dollars 
 additional, within one year from that date ; and five 
 thousand dollars additional, within two years from that 
 date ; making in all fifteen thousand dollars : 
 
 Considering that the Defendant has closed an arrange- 
 ment with the said Grovernment. by which it pays the 
 Defendant a cash consideration for performing the North 
 Shore Railway Contract : 
 
 The Court doth adjudge and condemn the Defendant, 
 for the considerations aforesaid, to pay to the Plaintiff the 
 sum of Five thousand dollars, with interest and costs.