Supreme Court of Canada
Git v. Forbes, (1921) 62 S.C.R. 1
Date: 1921-03-11
Jean K. Git and Others (Defendants) Appellants;
and
Sydney S. Forbes (Plaintiff) Respondent.
1921: February 11; 1921: March 11.
Present: Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Contract—Work and labour—Repugnant provisions—Rule of construction.
In a contract for altering a building the contractor covenanted “in consideration of the sum of $3,000 * * * that he will furnish the materials hereinafter mentioned and will perform services as hereinafter set forth.” After setting out the character of such work and materials the contract provided that in case the cost should be more or less than $3,000, payment would be made on the basis of cost plus a percentage and that the contractor should be entitled “to the amount ascertained as paid by him for labour and material, plus 12½ per cent.
Held, Davies C.J. and Duff J. dissenting, that this last mentioned provision for payment is repugnant to that by which the contractor made an absolute covenant to do the work and furnish the material for $3,000, and there being no special reason for departing from the general rule the later clause must be rejected.
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Per Davies C.J. and Duff J.—The clauses are not repugnant but assuming that they are the fact that the intention of the parties as disclosed by the contract was that the sum of $3,000 was only an estimate of the cost and that the contractor was to be paid the price of his labour and materials plus a reasonable profit, constitutes a special reason for refusing to reject the later clause.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario reversing the judgment at the trial in favour of the appellants.
The appeal involved the construction of a contract for altering a building so that it could be used as a restaurant. The material portions of the contract are set out in the head-note and appear in full in the opinions of the judges herein. The case was tried by the County Court Judge under the Mechanics Lien Act and His Honour held that the clauses were repugnant and effect should be given to the earlier. The Appellate Division held that they should be read together and effect given to the later.
Washington K.C. and E.E. Gallagher for the appellants.
J.L. Counsell for the respondent.
THE CHIEF JUSTICE (dissenting).—I concur with Mr. Justice Duff.
IDINGTON J.—The respondent brought an action upon a contract dated 5th March, 1919, made between him and the appellants whereby he agreed in consideration of the sum of $3,000 that he would furnish materials and perform the services thereinafter set forth.
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The work thereinafter set forth consisted of carpenter work, plumbing, electric wiring, plastering, stairs, painting and decorating, as specified.
The respondent’s statement of claim is somewhat ambiguous and may be read as if discarding said contract and relying upon an alternative contract in said agreement, presently to be referred to.
And the manner of presenting the evidence in support of his claim indicates a possible reliance upon such alternative contract as I tentatively express it.
But in the course of the trial counsel for respondent when challenged as to this, boldly took the following position:—
Mr. Counsell: Mr. Washington admits that we were entitled to claim for extras. There is not a thing in the original contract that there is to-day. Mr. Washington overlooks entirely the fact that this bill of Mr. Forbes rendered is a bill for the whole work and not anything to do with the contract. He goes on the third clause in that contract, that is to say, that Mr. Git was to pay him for his time and material supplied. Both of them disregarded that contract.
That was so persisted in as to render the trial rather confusing.
The respondent claimed and claims he was to be paid for all the costs of work and material, plus 12½% to be added thereto.
It seems rather a startling proposition in face of such an elaborate contract and specifications and the absolute covenant of the respondent with which the agreement set out binding him expressly to do the work and supply the materials for which he is to be paid the sum of $3,000 as follows:—
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Now this agreement witnesseth that in consideration of the sum of three thousand dollars ($3,000.00) to be paid as follows: one thousand dollars ($1,000.00) on the signing of this agreement, further sum of one thousand dollars ($1,000.00) when it appears to the satisfaction of all the parties hereto that materials have been furnished and services performed to the extent of twenty-five hundred dollars ($2,500.00) and the balance or sum of one thousand dollars ($1,000.00) thirty days after the completion of this agreement, the party of the second part covenants, promises and agrees to and with the parties of the first part that he will furnish the materials hereinafter mentioned and will perform the services as hereinafter set forth.
Immediately after that follows the entire contract regarding what has to be done by respondent for said consideration.
Then follows a provision in the agreement that if on examination of the building as disclosed by part of the work thus to be done it would not be consistent with the safety of the building to proceed, the work was to be abandoned and respondent entitled to compensation out of said $1,000.00 cash payment, and he to return balance thereof. Nothing arose out of this and its only possible use is as shewing what the nature of the contract was.
Next after that comes the following:—
The parties of the first part covenant with the party of the second part that in the event of the materials to be supplied and the labour performed amounting in value to more than three thousand ($3,000.00) then the parties of the first part will reimburse the party of the second part for such excess. The party of the second part covenants that in the event of such labour and materials being less in value than three thousand ($3,000.00) then the final payment will be the actual amount expended by the party of the second part over two thousand ($2,000.00) plus twelve and one half per cent. instead of one thousand as above stated. In estimating the value of the materials to be supplied and the labour performed the party of the second part on the final settlement of the amount due under this agreement shall produce all accounts paid by him for labour and materials and shall be entitled to the amount ascertained as paid by him for labour and materials plus twelve and one half per cent.
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The learned trial judge held this inconsistent with the express contract to do all the said work and supply all materials necessary therefor for the fixed sum of $3,000.00.
He proceeded on that basis of the incompatibility of the above quoted covenant in the contract and that which followed, and determined accordingly that the work done under the terms of that part of the contract covered by the said covenant could not exceed the sum named, and found as a fact that it fell below the sum named, and then allowed for extras on that basis.
On appeal the Second Appellate Division directed a variation in his formal judgment of which the following is what directly concerns us now in appeal therefrom.
It reads as follows:—
2. This Court doth order that the said appeal be and the same is hereby allowed and that the said judgment dated the 19th day of February, 1920, be varied and as varied be as follows:
(1) This Court doth declare that according to the true construction of the agreement between the parties, dated the 5th day of March, A.D. 1919, the covenant contained in paragraph one of the said agreement and the subsequent covenant providing for the case of materials and labour amounting in value to more or less than three thousand dollars ($3,000.00) are to be read together and effect to be given to the later covenant.
I am, with great respect, unable, in light of the authorities I am about to cite, to accept the foregoing as the true construction in law of said agreement.
It seems impossible for me to read the first covenant to do the work and supply the materials, which I have set out above, for three thousand dollars, and the later agreement together, as the learned trial judge is directed to do. The latter, if adhered to, abrogates the first contrary to the general rule in such cases that the first must be observed and the latter discarded.
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Counsel for appellant relied on the decision in the case of Furnivall v. Coombes, and a number of later decisions and text books adopting that decision as law. I prefer to anything else I have seen the interpretation of same decision and text which appears in the case of Williams v. Hathaway, at page 549 et seq., and applied with due discrimination in Watling v. Lewis, as safe guides.
The former is a decision of Jessel M.R., who in his opinion judgment seems, as usual with him, to go directly to the root of the matter and briefly, in terse language, to distinguish between a subsidiary provision which does not destroy the covenant and one which does. He says:—
The first question is one of law. It is said that if you find a personal covenant, followed by a proviso that the covenantor shall not be personally liable under the covenant, the proviso is repugnant and void. I agree that that is the law; but that by no means applies to a case where the proviso limits the personal liability under the covenant without destroying it, thus leaving a portion of the original covenant remaining; in that case the proviso is perfectly valid.
If the covenant to do the specified work and supply the necessary material herein for three thousand dollars is not destroyed by the substituted bargain, then I fail to know how it could be destroyed.
The entire basis of a complicated contract and one of which the range might ultimately be difficult to determine is by a stroke of the pen obliterated, as it were, and another so simple in its character that it needed nothing more than the verbal expression—go ahead, do as I tell you and I will pay your expenditure and twelve and a half per cent. for your care and supervision.
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Surely these are irreconcilable contracts in everyway. Even in applying the test which the Master of the Rolls gives, lawyers and judges may differ, as these cases illustrate.
But the test, nevertheless, seems a good one and if it can be said not to destroy the covenant herein I fail to see what could.
So convinced was able counsel for respondent that he felt driven to assert his client’s position in the language quoted above. I agree with him that if you can substitute in one and the same contract an alternative and harmonize them as one, he may be right.
I do not dispute that parties may in the same agreement provide for alternatives if the purview thereof makes it clear that such is their purpose.
That, however, is not this case, but one of an absolute covenant not anticipating by a line or word thereof departure therefrom followed by another and distinctively alternative contract in substitution of the former, although using one element thereof as an alternative basis of the latter.
It is, I repeat, impossible for the court to do as directed by this judgment of the Appellate Division.
The judgment thereof should therefore be set aside and that of the learned trial judge restored with costs.
DUFF J. (dissenting).—This appeal raises questions turning upon the construction of a deed the material clauses of which are as follows:—
Now this agreement witnesseth that in consideration of the sum of three thousand dollars ($3,000.00), to be paid as follows: One thousand dollars ($1,000.00), on the signing of this agreement, further sum of one thousand dollars ($1,000.00), when it appears to the satisfaction of all the parties hereto that materials have been furnished and services performed to the extent of twenty-five hundred dollars ($2,500.00), and the balance or sum of one thousand dollars ($1,000.00) thirty days
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after the completion of this agreement, the party of the second part covenants, promises and agrees to and with the parties of the first part that he will furnish the materials hereinafter mentioned and will perform services as hereinafter set forth.
* * *
The parties of the first part covenant with the party of the second part that in the event of the materials to be supplied and the labour performed amounting in value to more than three thousand ($3,000.00) then the parties of the first part will reimburse the party of the second part for such excess. The party of the second part covenants that in the event of such labour and materials being less in value than three thousand ($3,000.00) then the final payment will be the actual amount expended by the party of the second part over two thousand ($2,000.00) plus twelve and one half per cent. instead of one thousand as above stated. In estimating the value of the materials to be supplied, and the labour performed the party of the second part on the final settlement of the amount due under this agreement shall produce all accounts paid by him for labour and materials and shall be entitled to the amount ascertained as paid by him for labour and materials plus twelve and one half per cent.
The County Court Judge at Hamilton, by whom the action was tried, held that the second paragraph being repugnant to the first must be rejected. The Appellate Division has held that the two paragraphs must be read together and effect given to the later covenant as a modification of the earlier one. The question to be decided is whether the Appellate Division was right in reversing the decision of the judge. The case, in my opinion, is governed by two rules of construction. The first is laid down in Shelley’s Case at page 95b.
Such construction is always to be made of a deed that all the words (if possible) agreeable to reason and conformable to law may take effect according to the intent of the parties without rejecting of any, or by any construction to make them void.
The second is the rule laid down in Grey v. Pearson, at page 106, by Lord Wensleydale, namely, that the grammatical and ordinary sense of the words is not to be adhered to if that would lead to some absurdity or some repugnance or inconsistency with the rest of the
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instrument; and that in such case the grammatical and ordinary sense of the words is to be modified so as to avoid that absurdity or inconsistency. I confess I see no difficulty in reading these two paragraphs together in precisely the way in which the Appellate Division has done. In the event of the cost being less than $3,000 or exceeding $3,000 then the remuneration is to be upon “a cost plus percentage basis.” True, since the chances of the cost being precisely $3,000, are very remote, the practical effect of reading the two clauses together, in this way, is to treat that sum as an estimate; and that is precisely what I think the parties intended and considering, as we are bound to do, the necessary uncertainty both as to the extent and as to the cost of the changes which might be required to carry into effect the object of the contract, it is precisely the meaning, in my judgment, which the tribunal called upon to construe the deed is entitled to ascribe to it and must ascribe to it.
As against this way of construing the deed there is brought into play an ancient maxim which is given in Sheppard’s Touchstone, 88, in these words:—
If there be two clauses or parts of the deed repugnant the one to the other the first part shall be received and the latter rejected except there be some special reason to the contrary.
It is to be observed that this rule of construction is given in the chapter on the Exposition of Deeds and that on the preceding page there are two rules laid down which are virtually the two to which I have already referred. 1st, that the construction must be upon the entire deed and that “one part of it doth help to expound another;” and 2nd, that where the deed cannot take effect according to the letter it must, if possible, be so expounded as to take effect according to the intention to be collected from the whole deed.
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The rule as to repugnancy, therefore, is obviously a rule to be applied only in the last resort and when there is no reasonable way of reconciling the two passages and bringing them into harmony with some intention to be collected from the deed as a whole.
This, as might have been expected, has more than once been decided. Bush v. Watkins. The rule has indeed been put into operation where by giving effect to the second of two inconsistent clauses the intention, as disclosed by the deed as a whole would be defeated or where the rejected clause was repugnant to the very nature of the transaction the parties were engaged in. But in Walker v. Giles, at page 702, it was laid down that where there are inconsistent parts, that part, without regard to their order, which is calculated to carry into effect the real intention of the parties as collected from the instrument should be given effect to. Indeed it would appear that the disclosure of the general intention of the deed when read alone, or when read in light of the circumstances where the circumstances can, as in the present case, properly be resorted to, may constitute a “special reason” within the meaning of the very words of the rule itself as given in Sheppard’s Touchstone for refusing to reject the later clause.
The cases relied on present no real difficulty. In Furnivall v. Coombes, the effect of the proviso, if effect was to be given it at all, was of necessity to relieve the covenantors from any sort of personal obligation, a result held to be obviously inconsistent with the intention of the transaction. In Solly v. Forbes, a deed professing to be a release but reserv-
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ing rights against the sureties, was given effect to by treating the words of release as amounting to a covenant not to sue and the Court of King’s Bench cited and applied the language of Lord Hobart in Clanrickard’s Case at page 277:
I exceedingly commend the judges that are curious and almost subtil to invent reasons and means to make Acts, according to the just intent of the parties.
Again, Sir George Jessel, who afterwards in Re Bywater, at pages 19-20, described the converse rule governing the construction of wills as a mere rule of thumb, laid down in Williams v. Hathaway, at page 549, that the rule now under consideration “by no means applies” where the proviso limits the liability under the covenant without destroying it, thus leaving some portion of the original covenant remaining. Again in Watling v. Lewis, a proviso was rejected because it was held that the only effect that could be given to it would be to destroy the original covenant; and in Re Tewekesbury Gas Co., at page 285, Parker J. considered that when there was an unqualified covenant to pay with a proviso that it should only be enforced at the “option of the covenantor” the proviso must be rejected as obviously destructive of the object of the instrument.
In all these cases the clause rejected was one incapable of reconciliation with the general intention of the instrument; and indeed the operation of the rule seems to be limited to those cases in which there are two clauses so inconsistent that effect cannot be given to the second without annihilating the first and that neither the nature of the transaction nor the terms
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of the instrument sufficiently discloses an overriding intention affording a guide to the tribunal. The tribunal being thus left to the alternative of holding that the mutually repugnant clauses or the whole instrument must be inoperative for uncertainty or, on the other hand, rejecting one of the clauses, rejects the later clause.
It may be doubted whether it would not have been more consistent with sound sense to have adopted the former alternative; but the rule, although of limited application, seems to be a settled one and can only be altered by statute.
I repeat that I can entertain no doubt that it has no application to the instrument before us.
The appeal should be dismissed with costs.
ANGLIN J.—By the first clause of a contract under seal the plaintiff “covenanted, promised and agreed” to do certain specified work in the nature of alterations to a building for the sum of $3,000.00 payable in three instalments of $1,000.00 each. The document set out the specifications in detail and made provision for an abandonment of the work should it be found on removal or attempted removal of partitions that it would entail “serious damage” to the structure, and for payment in that event of the cost of labour expended. This clause followed:—
The parties of the first part covenant with the party of the second part that in the event of the materials to be supplied and the labour performed amounting in value to more than three thousand ($3,000.00) then the parties of the first part will reimburse the party of the second part for such excess. The party of the second part covenants that in the event of such labour and materials being less in value than three thousand ($3,000.00) then the final payment will be the actual amount expended by the party of the second part over two thousand ($2,000.00) plus twelve and one half per cent. instead of one thousand as above stated. In estimating the value of the materials to be supplied and
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the labour performed the party of the second part on the final settlement of the amount due under this agreement shall produce all accounts paid by him for labour and materials and shall be entitled to the amount ascertained as paid by him for labour and materials plus twelve and one-half per cent.
The plaintiff claims to recover $7,010.36 as the cost of the materials furnished and labour expended plus 12½% thereon, less $3,180 already paid. The County Court Judge at Hamilton, by whom the action was tried under the provisions of the Mechanics Lien Act, held that the clause above quoted should be rejected as repugnant to the absolute agreement to do the work for $3,000, and gave judgment for the latter sum plus $1,040.50 to which he held the plaintiff entitled for extras arising out of a number of changes in and departures from the specifications sanctioned by the defendants, less the $3,180 already paid.
The Appellate Division, after declaring that the covenant to furnish materials and do the work for $3,000.00 and the subsequent covenant providing for payment of the value of such materials and labour if amounting to more or less than $3,000.00 must
be read together and effect given to the latter covenant,
referred the matter to the local Master to ascertain the amount due to the plaintiff in accordance with this declaration. The defendants appeal and ask the restoration of the judgment of the trial judge.
The question presented is whether the later covenant in the contract, if given effect to, destroys the earlier one, or merely limits or qualifies its operation. In the latter case the cardinal rule of construction, that you must give effect to every part of a document if you can, must undoubtedly prevail; Elderslie SS. Co. v. Borthwick; Williams v. Hathaway; in the former the rule stated in Shepard’s Touchstone at p. 38 (No. 7),
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that if there be two clauses or parts of the deed repugnant, the one to the other, the first part shall be preferred and the latter rejected, except there be some special reason to the contrary.
appears to be so clearly established that, as the later clause, the covenant providing for payment of cost plus percentage must be rejected. Watling v. Lewis; Cheshire Lines v. Lewis & Co.; Furnivall v. Coombes—authorities cited by the appellants—are in point.
If the later covenant in the contract now before us were given effect to, the only possible operation of the first covenant would be in the event of the cost of the materials supplied and the labour expended, plus 12½% thereon, amounting to precisely $3,000.00. In other words the contract would impose on the defendants a simple and unrestricted obligation to pay the cost of materials and labour plus 12½%, the minimum being $2,000.00. That which was an absolute covenant to do the work for $3,000.00 thus becomes, if effect be given to the later covenant, conditional upon the cost plus 12½% amounting to exactly that sum. That in my opinion is not merely an alteration or qualification of the covenant to furnish the materials and do the work specified for $3,000.00. It is wholly inconsistent with and repugnant to that covenant and destroys it.
There is no ground for interference with the disallowance by the judge of a portion of the amounts which the plaintiff in the alternative claimed to be due to him for extras. He obviously accepted and acted on the evidence of Evans and McNeill, two experts employed by the defendants to report on the items preferred by the plaintiff as extras, and there is no ground for rejecting his appreciation of their testimony.
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I would allow the appeal and restore the findings of the County Court Judge. The judgment directed by the Divisional Court should be varied accordingly. The appellants are entitled to their costs in this court and in the Appellate Division.
BRODEUR J.—The appellants are Chinese restaurateurs and the respondent is a contractor.
At the beginning of the year 1919 the appellants, who were already running a restaurant in the City of Hamilton, leased from the defendant Mills a property situate on King street in that city for the purpose of establishing another restaurant in the same city. Alterations and repairs were needed since the property as laid down was not suitable for a restaurant. Partitions had to be removed; hard wood flooring had to be put in; private dining rooms, pantry, kitchen, a small sleeping room, and an archway at the entrance were needed. A contract was made on the 5th of March, 1919, between the appellants and the respondent for making the alterations and repairs therein specified for the sum of $3,000.00 payable in instalments, viz., $1,000.00 cash, $1,000.00 when the value of the work would have reached $2,500.00 and the remaining $1,000.00, thirty days after the completion of the work. This contract ends with the following clause, which is the cause of the whole trouble and which can hardly be reconciled with the fixed sum of $3,000 above mentioned:—
The parties of the first part (Jean Git, Jean B. Hong and Jean S. Wing) covenant with the party of the second part (Sidney S. Forbes) that in the event of the materials to be supplied and the labour performed amounting in value to more than three thousand ($3,000.00) then the parties of the first part will reimburse the party of the second part for such excess. The party of the second part covenants that in the event of such labour and materials being less in value than three
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thousand ($3,000.00) then the final payment will be the actual amount expended by the party of the second part over two thousand ($2,000.00) plus twelve and one-half per cent. instead of one thousand as above stated. In estimating the value of the materials to be supplied and the labour performed the party of the second part on the final settlement of the amount due under this agreement shall produce all accounts paid by him for labour and materials and shall be entitled to the amount ascertained as paid by him for labour and materials plus twelve and one-half per cent.
In the first part of the contract we have, then, a formal agreement that the work was to be done for a fixed sum, $3,000.00, and then in the latter clause we have a stipulation that if the work done is worth less than $3,000.00 a certain deduction would be made, or, in other words, the owner would not pay the $3,000.00 specifically stipulated. On the other hand, if the work was worth more than $3,000.00, then the owners would have to pay the amount actually expended by the builder plus 12½%, which would be his profit on the job.
The repairs were made and, as is usual in cases of that kind, extras were put in by the contractor but for most, if not all, of these extras, agreements were made as to the price. In the course of the progress of the work the contractor said at one time that those extras would not amount to more than $500.00, then later, on May 15th, when all the work was finished Git made the last payment due under the contract and he asked Forbes to bring in the bill for the extras, and he asked him how much they would cost and Forbes said in a jocular way, about $1,000.00. Git expressed his surprise at that but he was still more surprised when Forbes came with a total bill not only of $4,000.00, including the contract price and $1,000 for extras, but he presented a bill totalling $7,010.36, or more than double the contract price. The contractor claimed that he was entitled to all that under the clause in the contract above quoted.
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The appellants, defendants, were very willing to pay $500.00 for extras, but refused to pay the rest. The present action was instituted claiming $3,830.36 after having deducted $3,180.00, which had already been paid. The action was based upon the contract though the plaintiff did not specifically rely upon the later clause. The action also claimed that in addition to the contract the plaintiff was requested to furnish other materials and to perform services not stated in the written contract.
The defendant pleaded that the agreement was for three thousand dollars and that they were willing to pay $500 for the extras.
The trial judge came to the conclusion that the clauses of the contract providing the first for a fixed sum and the later for a sliding scale were repugnant and gave effect to the first clause and in addition to that he found that there were extras to the extent of $1,632.05. But he found that on the contract proper work to the extent of $591.55 had not been performed. He gave judgment therefore in favour of the plaintiff for $1,040.50.
The Appellate Division reversed this decision, and came to the conclusion that the two clauses of the contract should be read together and that effect should be given to the later clause. Reference was ordered to determine the amount due under such a construction of the contract.
The case comes now before us.
It seems to me that these two clauses of the contract cannot be reconciled and that they are absolutely repugnant. In one case it is stated that the work is to be done for a fixed price, viz., $3,000.00, and later on
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we find a clause that this price will be increased or decreased according to the value of the work done. If we give effect to the latter clause the first one means nothing and I cannot see how we can read them together as ordered by the Appellate Division. Unfortunately we have no notes of the Appellate Division which could guide us. The parties evidently intended that the work would be done for $3,000.00. The proviso as to a sliding scale was inconsistent with this covenant and it becomes void and should be rejected. Furnivall v. Coombes; Halsbury, Vol. 7, pages 517, 518; Cheshire Lines v. Lewis.
The conduct of the parties later on shews that this second covenant was not intended to be carried out. Payments were made on a basis of the $3,000.00 contract. Extras were ordered and the contractor was asked how much in excess of the $3,000.00 these extras would amount to and he said about $500.00. This answer puts on the contract a construction which should not be departed from. Later on he seemed to be almost ashamed of himself when he suggested these extras could amount to $1,000. But now when he comes to claim $3,830.36 his action could not be reasonably maintained for such a large amount. The judgment of the trial judge has done full justice to the plaintiff’s claim. The judgment a quo should be reversed with costs of this court and of the court below, and the judge’s decision should be restored.
MIGNAULT J.—The two courts below arrived at different results mainly because they differed as to the rule of construction which should be applied to the contract between the parties.
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The first court considered absolutely irreconcilable the clause in the contract that the respondent would for the sum of $3,000.00 perform the work and furnish the materials specified, and the subsequent clause that if the work and materials would cost more than $3,000.00, the appellants would pay the excess, with 12½%, and if less, that they would pay the actual amount expended by the respondent, over and above $2,000.00, plus 12½%. And the learned trial judge applied the rule of construction which in such a case rejects the second of two clauses which are so repugnant that they cannot stand together (Corpus Juris, Vol. 13, page 536).
The Appellate Division, on the contrary, held that the two clauses should be read together and that effect should be given to the later covenant.
It appears to me absolutely impossible to give effect to the two clauses. For on the one hand the work specified is to be done for a lump sum of $3,000.00, and on the other, if it costs more than $3,000.00, the respondent is to have the excess cost, with 12½%, and if less, the appellants are to pay him a minimum of $2,000.00, plus the actual amount expended over that amount with 12½% added thereto. In other words, the work, by the first clause, is to be performed for a fixed price, while, by the second, it is to be paid for on the basis of a quantum meruit, with a minimum of $2,000.00, and a percentage on actual cost of 12½%.
I fully recognize that when it is at all possible, it is the duty of the court to read together all the clauses of a contract, giving to each the meaning derived from the whole instrument. But where two clauses are irreconcilable, so as to be destructive the one of the
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other, one of these clauses must necessarily be disregarded, unless the whole contract is treated as void for uncertainty, and the rule appears to be to give effect to the first clause and to reject the other. Thus a proviso destroying a previously assumed personal liability, being repugnant to the covenant to pay and indemnify, was declared void of effect. Watling v. Lewis. Applying this rule I must find that there is absolute repugnancy between these two clauses and therefore I must disregard the second clause.
I therefore think that the basis of the judgment of the learned trial judge was the correct one, and that being the case I would not interfere with his decision with regard to the amount which is payable to the respondent for extra work not comprised in the contract, for which the respondent was granted a substantial sum.
I would therefore allow the appeal with costs here and in the appellate division and restore the judgment of the trial judge.
Appeal allowed with costs.
Solicitors for the appellant: Brown & Gallagher.
Solicitors for the respondent: Bruce, Bruce & Counsell.
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