Supreme Court of Canada
W.J. Crowe Ltd. v. Pigott Construction Co., [1963]
S.C.R. 238
Date: 1963-03-07
W.J. Crowe Limited (Defendant)
Appellant;
and
Pigott Construction
Company Limited (Plaintiff) Respondent.
1962: November 15, 16; 1963: March 7.
Present: Kerwin C.J. and Cartwright, Abbott,
Martland and Ritchie JJ.
Kerwin C.J. died before the delivery of
judgment.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Contracts—Building subcontract—Trial judge
wrong in implying term as to progress of construction to permit commencement of
work by subcontractor—Subcontractor not excused from performance by reason of
alleged breach of contract by general contractor.
The plaintiff, a general contractor, brought
an action to recover damages for non‑performance by the defendant of a
building subcontract entered into on September 16, 1955. The action was
dismissed at trial, but, on appeal, the Court of Appeal held that the plaintiff
was entitled to succeed. In the circumstances of the case, the trial judge was
wrong in implying a term in the subcontract that work on the project would be
sufficiently far advanced to enable the defendant to commence work not later
than January 1, 1957. Also, in
the particular circumstances of the case, the defendant was not excused from
performance of the subcontract by reason of the plaintiff’s alleged failure to
proceed with the work in a proper and expeditious manner or by reason of its
failure to provide temporary heating in the buildings under construction. The
defendant appealed from the judgment of the Court of Appeal.
Held: The
appeal should be dismissed.
This Court was in full agreement with the
reasons for judgment delivered by Laidlaw J.A. on behalf of the Court of
Appeal.
APPEAL from a judgment of the Court of Appeal
for Ontario, allowing an appeal
from a judgment of Gale J. Appeal dismissed.
W.B. Williston, Q.C., for the defendant,
appellant.
J.J. Robinette, Q.C., for the plaintiff,
respondent.
The judgment of the Court was delivered by
RITCHIE J.:—After careful consideration of the
very thorough arguments of counsel, I have concluded that there is nothing
which I can usefully add to the reasons for judgment delivered by Laidlaw J.A.
on behalf of the Court of Appeal for Ontario
with which I am in full agreement.
[Page 239]
I would accordingly dismiss this appeal with
costs.
Appeal dismissed with costs.
Solicitors for the defendant, appellant:
McLaughlin, Macaulay, May & Soward, Toronto.
Solicitors for the plaintiff, respondent:
Day, Wilson, Campbell &
Martin, Toronto.
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