Public work-Contract for widening canal-Change of plans-Extra work The suppliants were contractors for widening and deepening the lower A large part of the work was done either in the winter season or with the water in the canal. Held: That there was no such change in the conditions under which the contract was to be performed as to make its provisions inapplicable to the work that was done, and that the case was not one in which the contractors were entitled to treat the contract as at an end and to recover upon a quantum meruit, as was done in the case of Bush v. Trustees of the Port and Town of Whitehaven. (See Hudson on Building Contracts, 2nd ed., vol. 11, p. 121.) 1906 PIGOTT & INGLES THE KING. 2. By the 33rd section of The Exchequer Court Act it is provided that "In adjudicating upon any claim arising out of any contract in writing, the court shall decide in accordance with the stipulations in such contract, and shall not allow compensation to any claimant on the ground that he expended a larger sum of money in the performance of his contract than the amount stipulated for therein, nor shall it allow Argument of Counsel, interest on any sum of money which it considers to be due to such claimant, in the absence of any contract in writing stipulating for payment of such interest or of a statute providing in such a case for the payment of interest by the Crown." In this case an order in council was passed waving certain clauses of the contract, Held, that the words in the first clause of the above section "the court "shall decide in accordance with the stipulations in such contract" may be treated as directory only, and that effect might be given to the waiver so far as it afforded relief from the clauses of the contract which would constitute a defence to the action if pleaded by the Crown, such as the absence of any written direction or certificate by the engineer with respect to the work done; but that the remaining clauses of the section were imperative, and that there could be no valid waiver which would enable a contractor to obtain compensation for a larger sum than the amount stipulated for in his contract, i.e., the contract prices for the different classes of work done must be applied to such work. 3. Where a contract has been entered into for the construction of certain works at schedule rates, and the work has been completed in accordance with the contract, the contract prices cannot be increased so as to give the contractor a legal claim for higher prices without a new agreement, made with authority, for a good consideration. PETITION of Right to recover a sum of money from the Crown alleged to be due to the suppliants for works done in the improvement of the Grenville Canal. The facts of the case are stated in the reasons for judgment. May 19th, 1905. The argument of the case was now heard at Ottawa. G. H. Watson, K. C., for the suppliants. F. H. Chrysler, K.C.., and W. Johnston, for the respondent. Mr. Watson contended that what the suppliants were claiming in this action were things done and provided 1906 PIGOTT & INGLES v. THE KING. Argument extra and in excess of their original contract in deepening and widening the Grenville Canal. The conditions and circumstances under which the works here claimed for were executed were so changed from those contemof Counsel. plated by the parties to the contract at the time it was made that the contractors are entitled to treat the contract as at an end and to sue upon a quantum meruit. The plans were changed by the Crown, and the delays arising from such changes were prejudicial to the execution of the works by the defendants. Instead of the work being done in the open season and with the canal unwatered, the bulk of it was done either in winter or with the water in the canal. This was because of the changes in the plans made by the engineer, and for the acts of the engineer within his powers the Crown is responsible. The order in council passed with reference to these particular proceedings waives any technical defences to the action "in so far as they would prevent a consideration of any claim on its merits." The Crown got the benefit of the work done, and is obliged in law to pay for it. Mr. Chrysler, for the respondent, argued that the suppliants were confronted by a dilemma in prosecuting their claim here. If they relied on the contract, the evidence plainly shows that it was contemplated that the work should be done in the winter season, or after the close of navigation, and further, they were met with the schedule of prices; while if they rely on the order in council, that does not purport to waive the prices at all. The case of Henderson v. The Queen (1) does not apply here, because it is a question of improvements upon land and not of obtaining the benefit of goods sold. Munro v. Butt (2). Furthermore, the evidence does not show that the suppliants lost money on their contract. 1906 PIGOTT & INGLES V. THE KING. Reasons for Mr. Watson, in reply, cited The Queen v. St. John Water Commissioners (1); Weddell Dredging Co. v. The Queen (2); Jackson v. Union Marine Insurance Co. (3); Judgment. Ross. Barry (4); Hall v. The Queen (5); Starrs v. The Queen (6); Wallis v. Robinson (7). THE JUDGE OF THE EXCHEQUER COURT now (April 9th, 1906), delivered judgment. The petition is brought by the suppliants to recover from the respondent the sum of $154,244.93, with interest, for work done by them in widening and deepening the lower part of the Grenville canal, and for damages sustained by them in doing that work. For the execution of this work the supplian's, on the 9th day of April, 1897, entered into a written contract with the Crown, whereby it was, among other things, provided that they should, in the manner therein set out, be paid for the works contracted for at certain prescribed prices. By a final estimate signed by Mr. Lynch, as resident engineer, by Mr. Marceau, as superintending engineer, and by Mr. Schreiber, as Chief Engineer, the suppliants were, on the 19th day of April, 1901, allowed in respect of such works the sum of $95,323.10, and that amount has been paid. In the month of November, prior to the date last mentioned, the suppliants had made a claim against the Crown in respect of this work and for damages and interest, amounting in all to the sum of $191,360.16, against which they gave credit for $92,675.57 for cash received, leaving a balance as then claimed by them of $99,684.59. This claim was substantially that which is 1906 PIGOTT & INGLES THE KING. Judgment. now before the court with this difference, that the prices have since been increased to include a general average profit of about twenty-five per cent. That in the main accounts for the difference in the amount of the claim Reasons for then made and that now in question here. The claim was considered before the final estimate of April, 1901, was given, with the result that by the latter the suppliants were allowed a sum of $3,647.53 in addition to the amount for which they had given credit in November, 1900. Of the latter amount the sum of $1,016.45 was allowed in respect of matters not included in the schedule of prices. The large difference between the amount which the Government engineers have allowed and that which the suppliants claim is principally due to the fact that the former in making their returns and estimates have adhered to the prices prescribed in the contract, while the latter have made up their claim at larger prices, which they say are fair and reasonable and such as they are entitled to under all the circumstances of the case. In short, the suppliants make their claim upon the quantum meruit and not upon the contract, and they contend that they are entitled to do that on two grounds, one of which existed at the time the final estimate was made, while the other has arisen since. In the first place it is said that the circumstances under which the works in question were executed were so changed from those contemplated by the parties to the contract that the special conditions of the contract are inapplicable, and that the contractors are entitled to treat the contract as at an end and to recover upon a quantum meruit. It is contended that it was in the contemplation of the parties to the contract that the work should be done in the open season and with the canal unwatered, whereas with the exception of short periods in the spring after the frost was out of the ground and before the canal was opened to navigation, and shorter |