Supreme Court of Canada
Markham v. Continental Marble & Granite Limited et
al., [1968] S.C.R. 742
Date: 1968-05-08
Ronald Victor
Markham (Plaintiff) Appellant;
and
Continental Marble
& Granite Ltd. and Bordignon Masonry Ltd. (Defendants) Respondents.
1968: May 8.
Present: Cartwright C.J. and Martland,
Ritchie, Hall and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
BRITISH COLUMBIA
Contracts—Interpretation—Contract for facing
of building with pre-cast granite awarded to defendants—Prior agreement whereby
first defendant agreed to pay plaintiff percentage of total value of “the
granite contract”—Basis upon which remuneration payable to plaintiff.
The action herein concerned the remuneration
to be paid to the plaintiff by the defendants under an agreement in writing
between the parties whereby the first defendant agreed to pay to the plaintiff
4 per cent of the total value of “the granite contract” relating to the Bank of
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Canada Building in Vancouver, British
Columbia. The agreement defined the total value of the granite contract as
follows: “the value of the contract being based upon the total cost of the
granite delivered to the job, and including all costs except the actual cost of
installing the granite on the building”. The trial judge held that the
plaintiff was entitled to 4 per cent of the cladding contract (that is, for the
facing of the building) less the cost of installation of the cladding. The
remuneration payable to the plaintiff upon this basis was $22,570.46. The Court
of Appeal held that the plaintiff was entitled to 4 per cent of the granite (in
the form of granite chip or granite slab) delivered to the job, less the cost
of installation of the granite. The remuneration payable to the plaintiff on
this basis was $574.80. From the judgment of the Court of Appeal the plaintiff
appealed to this Court.
Held: The
appeal should be allowed and the judgment at trial restored.
APPEAL from a judgment of the Court of Appeal
for British Columbia, allowing an appeal from a judgment of Dryer J. Appeal
allowed.
B.W.F. McLoughlin, for the plaintiff,
appellant.
Philip d’A. Collings, for the defendants,
respondents.
At the conclusion of the argument of counsel for
the respondents the Court retired and on returning the following judgment was
delivered by
THE CHIEF JUSTICE (orally for the
Court):—Mr. McLoughlin, we do not find it necessary to hear you in reply.
We are all of opinion that the appeal succeeds and that the judgment of the
learned trial judge should be restored. We agree with the construction placed
upon the contract, ex. 8, by the learned trial judge and we are in substantial
agreement with his reasons.
The appeal is allowed with costs in this Court
and in the Court of Appeal for British Columbia and the judgment at trial is
restored.
Appeal allowed and judgment at trial restored.
Solicitors for the plaintiff, appellant:
Lawrence, Shaw, Stewart & McLoughlin, Vancouver.
Solicitors for the defendants,
respondents: Comparelli & Collings, Vancouver.
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