City of Montreal v. Canadian Pacific Railway Co., (1903) 33 SCR 396

Supreme Court of Canada

City of Montreal v. Canadian Pacific Railway Co, (1903) 33 SCR 396

Date: 1903-04-29

THE CITY OF MONTREAL

Appellant;

And

THE CANADIAN PACIFIC RAILWAY COMPANY

Respondent.

1903: Mar 2; 1903: Mar 3; 1903: Mar 4; 1903: Mar 5; 1903: Mar 6; 1903: April 29

PRESENT: Sedgewick, Girouard, Davies, Mills and Armour JJ.

ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Contract Construction of works—Spécifications—"From " and "to" streets—Reference to annexed plan—Construction of deed—Mistake—Costs.

The words "from" and "to'' Streets mentioned in specifications for the construction of works undertaken by an agreement in wilting as shown on a plan annexed to and declared to form part of the contract are not necessarily exclusive and, in the case in question where the agreement provided that the works should be constructed “along Notre-Dame street from Berri street to Lacroix street as shown on the said plan" these words mean as far as the plan shows along Notre-Dame street but not exceeding the most distant side of Lacroix street.

Mills and Armour JJ, dissenting were of opinion that the plan was annexed to the written agreement merely for the purposes of illustration and that the words in the agreement limited the contrat so that the works undertaken would not include constructions shown on the plan over any portion of either Bern street or Lacroix street.

APPEAL from a judgment of the Court of King's Bench appeal side, which reversed the judgment of the Superior Court, District of Montreal, dismissed the defendant's cross-action for the annulment of a deed on the ground of error and maintained the plaintiffs action with costs.

The action was brought by the company to recover $38345 99 for a share of a cost of certain works undertaken to be constructed by the city and the company together under an agreement in writing dated the 19th

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of December 1893, the material clauses of which are referred to in the judgments on the appeal. The point in controversy between the parties was as to which of them should bear the cost of that portion of the bridging in question which extends across Lacroix street at the Place Viger terminus of the Canadian Pacific Railway in Montreal. The questions arising on the appeal are stated in the judgments reported.

ATWATER K. C. and ETHIER K.C. for the appellant.

LAFLEUR K. C. for the respondents.

SEDGEWICK J.—The appeal should in my opinion, be allowed in part and the judgment appealed from varied in the manner and for the reasons stated by my brother Girouard.

GIROUARD J In this, as in all cases where big corporations are litigants and large interests at stake, the record is voluminous, but after having been threshed out in two courts, where their respective pretentions have been fully discussed, I think the issue before us is narrowed down to a simple question of interpretalion of contract.

On the 19th December, 1893, the City of Montreal and the Canadian Pacific Railway Company signed a notarial agreement and a plan annexed to it as part of the same, whereby the parties undertook to provide for the erection of what was called the Eastern Station near Place Niger. The Canadian Pacific Railway Co. undertook to build a large station, freight sheds and other works, and the city promised to deliver to the railway company a certain area of land between Craig and Notre-Dame Streets, Berri Street to the west and Lacroix Street to the east, and to construct an iron bridge or viaduct along Notre Dame Street. All these extensive works are indicated in the deed and plan

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which were both signed by the parties and their counsel. The construction of the iron bridge by the city alone is involved in this appeal. Clause 5 of the contract declares:

The corporation covenant that they will construct and maintain a bridge for highway purposes along Notre Dame Street, from Bern Street to Lacroix Street, as shown on the said plan.

The city commenced to build the bridge, but before reaching Lacroix Street expressed the opinion that they were not called upon by the contract to go beyond the westerly limit of Lacroix Street. Thereupon the following deed of compromise was arrived at in 1896. I quote the whole deed in order to understand fully the intention and agreement of the parties:

Whereas under and by a certain deed of agreement passed before the undersigned notary on the nineteenth day of December eighteen hundred and ninety three between the said City of Montreal and the said railway company about the construction of the Eastern Station in the said City of Montreal, the said City of Montreal did undertake to construct and maintain a bridge for highway purposes along Notre Dame Street from Berri Street to Lacroix Street as shown on the plan annexed to the said deed, of such a height as to make the land below it available for railway purposes, and to give the said company the right to use the land below the said structure as it may require for railway purposes;

Whereas the said City of Montreal alleges that it has constructed the said bridge from Bern Street to the south-west line of Lacroix Street according to the said contract:

Whereas the said railway company has contended that under the clause hereinabove cited of the said deed of agreement and according to the plan annexed to the said contract, the said city is bound to continue the construction of the said bridge up to a point on the north-east side of the said Lacroix street, as shown on the said plan, which contention the said City of Montreal regards as incorrect and not in conformity with the said agreement and clauses thereof;

Whereas the said parties have agreed some time ago to have that question decided by the court and in the meantime to proceed with the completion of the said bridge;

Whereas under said understanding the said city has continued the said works up to date, but is now unable to continue on account of its inability of advancing the funds necessary for the said works;

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And whereas the said parties are desirous to complete the said bridge as shown on the said plan as soon as possible;

Now therefore these presents, and I the said notary, witness:

That the said parties do respectively agree one with the other as follows:—

The said railway company agrees to advance to the city all the moneys necessary for the completion of the said bridge, either on Notre Dame or Lacroix Street as shown on the said plan to the extent of thirty five thousand eight hundred dollars the amount of the city's estimate for the cost of completing the bridge as aforesaid, and the said city agrees to proceed with the said bridge on the following terms, under the supervision of the said railway company's Engineer.

And the City of Montreal agrees that it will apply to the Legislature of the Province of Quebec at its next session for and will use its best endeavour to obtain legislation permitting the city to raise the money necessary to complete the said bridge as aforesaid, and if such legislation be obtained, or (1 believe "and" was intended) if a court of competent jurisdiction finally decides that the city is liable under the said agreement to bear the cost of constructing and completing the said bridge further north than the line of the southerly limit of Lacroix Street then any moneys advanced in the mean time by the said company for that purpose, as hereinabove provided, shall be forthwith reimbursed by the city to the said railway company with five per cent per year interest thereon, and the city shall bear alone the cost of constructing and completing the said bridge as aforesaid.

And the said railway company undertakes that if the said judgment finally decides that the said city is not liable under the said agreement to construct the said bridge further north then the line of the southern limit of Lacroix Street, then the said railway company will forthwith, on demand, repay to the said city all moneys which the said City may have expended either before or after the execution hereof in completing the same, provided that the amount of such expenditure and the amount expended for the same purpose by the said railway company shall together not exceed thirty-five thousand eight hundred dollars, the amount of the said city's estimate of the cost of completing the bridge as aforesaid, the said company being not bound to repay any sum over said amount, and will also pay interest on such moneys as may have been disbursed by the city for the said purpose at the rate of five per cent per annum from the respective periods of such disbursements

Nothing in these presents shall be held to affect or diminish the rights of either party under the said agreement of the nineteenth of December eighteen hundred and ninety-three.

A total sum of $35771222 was advanced to the city in pursuance of this compromise. The Canadian Pacific Railway Company now sues the corporation for an inter-

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Creation in their favour of the contract of the 19th December 1893 and the reimbursement of the monies so advanced.

The city met this action by alleging her own construction of the contract and for the first time set forth by a separate action and an inscription en faux that the plan annexed to the deed was not the one agreed to by the corporation, and that it had been signed by error.

A long enquête necessarily followed the allegation of error. The Superior Court (Lonelier J.) maintained that it had been Proved and dismissed the action of the Canadian Pacific Railway Co. The learned judge further held that the contract of the 19th December, 1893 which must control the plan wherever inconsistent, did not support the interpretation of the railway company, and that the city was not bound to construct the bridge beyond the westerly limit of Lacroix Street. In appeal this judgment was reversed, and the city was condemned to pay the full amount demanded with interest and costs.

We all agree with the court of appeal that there was no error, and that the appeal of the city from the judgment dismissing their action must be rejected, as well as the inscription en faux. The learned Chief Justice reviewed at length all the facts bearing upon this branch of the case and we fully concur in his conclusion. He said:

A tout événement la cite connaissait Cette erreur (si elle a existé) des 1895. C'était le temps de répudier son contrat; an lieu cela, en 1896 elle a fait un compromis avec la compagnie dans lequel elle admet le contrat de 1893 prétend avoir rempli son obligation de construire son viaduc en s'arrêtant â ligne sud-ouest de la rue Lacroix et n'être pas obligée de construire au.delà. Alors ii est convenu que la cité parachèvera la construction avec les argents que la compagnie s'oblige a lui fournir, sauf à rembourser la compagnie si la Législature de Québec lui permet de prélever des fonds pour le parachèvement de l'ouvrage, on si une cour de justice la déclare liée par son contrat à faire la parte du viaduc à travers la rue Lacroix. La cite consentait donc alors à ce que le contrat fût exécuté suivant sa forme et teneur et il serait trop tard maintenant que la compagnie a avancé des fonds sur la foi de l'acte de 1896, de répudier la contrat de 1893.

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Nous sommes d'opinion que la cite n'a pas prouvé l'erreur qu'elle invoque et même qu'elle no pourrait pas 1 invoquer après avoir consenti l'acte de compromis de 1896.

As to the other branch of the case, namely, the interpretation of the contract of the 19th December, 1898, this court is divided. Two take the view of Mr. Justice Lonelier and three agree in part with the court of appeal. Sir Alexander Lacoste, continuing his remarks, said:

Il ne reste que la dernière question: La cite s'est-elle obligée par le contrat de 1893 à construire le viaduc à travers la rue Lacroix? Elle s'est obligée à construire le viaduc suivant le plan; or le plan démontre que le viaduc s'étend au-delà de la ligne sud-ouest de la rue Lacroix La cite prétend qu'il v a contradiction entre le contrat qui dit "from Bern street to Lacroix street" et le plan. Nous ne voyons pas la contradiction; "from" et "to" n'excluent pas nécessairement l'une ou l'autre rue Construire un chemin de fer d'une ville à une autre no veut pas dire qu'on n'entrera pas dans l'une on l'autre ville, Si un plan n'eût pas été annexé à l'acte, la cite aurait Pu prétendre avoir satisfait à son obligation en construisant un viaduc de la ligne sud-est de la rue Berri à la ligne sud-ouest de la rue Lacroix. Maes le plan est déclaré former partie du contrat, par conséquent ii explique et complète la convention et doit être suivi.

In this view we also concur. The words from and to are not always exclusive. This depends upon the circumstances of each case. Suppose C. acquires a piece of laud situated from B to C Here the words are evidently exclusive. But when the deed provides that a certain piece of work is to be constructed, as in this case along Notre-Dame Street from Henri Street to Lacroix Street as shewn on the said plan" the words mean as far as the plan shows, along Notre Dame, but not exceeding the most distant line of Lacroix Street. That part of the plan referring to this work, which is reproduced below, shows plainly that the iron bridge extends along Notre Dame Street below the western limit of Lacroix Street and even its eastern limit and along Lacroix Street north of Notre Dame Street for wherever railway tracks are indicated the superstructure or bridge was necessary.
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Here the plan defines the meaning of the words from and to, that is along Notre flama Street to the easterly limit of Lacroix Street. We believe therefore that the city was bound to construct the bridge to the easterly line of Lacroix Street, but nothing more, and the judgment appealed from must be varied accordingly.

From the last remarks of the learned Chief Justice we are inclined to believe that the court of appeal had at first entertained some doubt upon this point. He says:

J'aurais eu quelque doute sur la partie du viaduc qui est en dehors de la rue Notre Dame au nord-ouest sur la rue Lacroix mais ce doute est dissipe par la convention de 1896. Il y est dit que la compagnie advancera à la cite tout l'argent nécessaire "for the completion of the said bridge either on Notre Dame or Lacroix street," et que la cite remboursera si une cour décide que la cite est tenue de construire à ses frais au delà de la ligne sud-ouest de la rue Lacroix

The continuation of the bridge along Lacroix Street had to be built without any delay; it was necessary to both the city and the railway company and naturally the deed of compromise provided for the construction of the whole structure so as to afford as little inconvenience as possible to the public. But the city never promised by the deed of compromise to do more work than it stipulated in the contract of 1893. The last clause of the deed of compromise of 1896 so declares in express terms:

Nothing in these presents shall be held to affect or diminish the rights of either party under the said, deed of agreement of the 19th of December, eighteen hundred and ninety-three.

That is the interpretation given by the railway company itself, which claims no right under the deed of compromise beyond the reimbursement of the funds advanced to Complete a work which they allege the city had undertaken to do by the terms of the contract of 1898. We have endeavored to show that their contention is unfounded.

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On the other hand the city seems to concede in the deed of compromise that it is bound to build along Notre-Dame Street south of Lacroix Street., It agrees in fact to reimburse if obliged under the contract of 1893 to construct further north than the southerly limit of Lacroix Street. Likewise the railway company agrees to refund all moneys expended by the city in completing said bridge, if the courts hold that it is not so obliged without saying where the work was to be done on Notre Dame Street south of Lacroix, or outside of its easterly limit But all these contentions and distinctions cannot be maintained in face of the express stipulation that the rights of the parties remain intact and unaffected. The deed of compromise may be badly worded but the last clause leaves no doubt as to the intention of the parties. The city never undertook to construct outside of Notre Dame Street and the railway company only contemplated building the bridge out-side the distance between Lacroix Street east and Henri Street whether on Lacroix or Notre Dame Streets. Therefore that part of the bridge along Lacroix or east of Lacroix, along Notre Dame, must be built at the ex-pense of the railway company.

The appeal is therefore allowed in part, and  judgment appealed from varied. The appellants are condemned to reimburse to the respondents the cost of that part of the iron bridge or viaduct extending along Notre 1ameStreet south and the whole width Of Lacroix Street from limit to limit, and no more, said cost—-unless the amount thereof be agreed to by the parties within fifteen days–to be ascertained by the Registrar of this court who, after having heard the parties and their witnesses, shall settle the judgment for the amount so agreed to or ascertained, with interest at the rate of five per cent from the date of payment and costs in the Superior Court and court of appeal. As the conténtions

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of the appellants are not fully adopted, no costs will be allowed before this cour

DAVIES J. —i have had the advantage of reading the opinion prepared by my brother Armour in this case, and I fully agree with him that the agreement between the parties having been ratified by provincial statute was not open to attack in the courts on the ground of alleged error or mistake in connection with the plans attached to and made part of the agreement.

I am also clearly of the opinion that the supplementary agreement, although its language is in parts obscure and somewhat difficult to interpret does not alter or modify, and was not intended to alter or modify, the respective rights or obligations of either of the contracting parties under the main and original agreement of 1893. The language of the concluding paragraph of the agreement of 1896, if any doubt otherwise existed on the point, is in my mind conclusive. It says:

Nothing in these presents shall be held to affect or diminish the rights of either party under the said agreement of the 19th of December, 1893.

Referring, then, back to this agreement of 1893, we find that it was a contract providing for the construction and equipment in the eastern part of the City of Montreal of a terminal railway station of the Canadian Pacific Railway Company on certain specified terms and conditions and on certain reciprocal obligations of the parties to the contract. Attached to this agreement was a large general plan which was declared by the agreement "to form part of it," and was referred to in many of its paragraphs to show more definitely what their language meant. The plan showed the station and grounds attached, the numerous outbuildings and works contemplated the different tracks and sidings proposed to be constructed leading into and from the

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Stan, and the several streets crossed by them and the general scheme of an eastern railway terminus in the City of Montreal.

The particular clause out of which the litigation arose reads as follows:

5 The corporation covenant that they will construct and maintain a bridge for highway purposes along Notre-Dame Street from Berri Street to Lacroix Street, as shown on the said plan of such a height as to make the land below it available for railway purposes, but the upper level of said bridge must not be higher then the level of Notre-Dame Street, and to give the company the right to use the land below the said structure as they may require for railway purposes.

Lacroix Street and Bern Street run at right angles to Notre-Dame street which latter is one of the principal streets of Montreal. Lacroix Street was a short street running from Craig Street to Notre-Dame Street, but not going beyond these streets. The plan attached to the agreement showed the proposed different railway tracks crossing Notre-Dame Street the construction of the bridge over which was being provided for, as extending along Notre-Dame Street for a distance including the entire width of what may be called a prolongation of Lacroix Street, and a small distance beyond it. It showed these tracks to run up and over a part of Lacroix Street, which was also marked on the plan t to be bridged "but by whom was not, of course, stated.

The Court of King's Bench held that under this agreement and plan and the subsequent agreement of 1896, the city was liable to pay for the construction of the entire bridge as shown upon the plan, as well over Notre-Dame Street as over Lacroix Street. But as I have said I am clearly of the opinion that the agreement of 1896 does not alter the rights or obligations of the parties under the agreement of 1893, and it is not, in my judgment, open to argument that any liability on the part of the city exists under this latter agreement for that portion of the bridge built over

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Lacroix street and not forming part of Notre-Dame Street. The only point, therefore, on which I differ from the judgment of my learned brother Armour is as to the distance the city was bound to build the bridge over and along Notre-Dame Street. He is of opinion that the words of the agreement "along Notre-Dame Street from Bern Street to Lacroix Street" must be construed to be limited to the distance between the two nearest side lines of these latter streets and if we had to depend upon the words of the section eliminating those referring to the plan, I should have no difficulty in accepting his construction. But I am of opinion that the additional words "as shown upon the plan" clearly indicate a different meaning. I think the clause of the agreement under review read in the light of the plan to which it refers and which was made a part of it, shows that what the city was contracting to build was the contemplated bridge along Notre-Dame Street and that as the plan clearly showed the bridge as extending along Notre-Dame Street nearly across what would be the prolongation of Lacroix Street which opened into it the obligation of the city is not to be limited to that portion of the bridge along Notre-Dame Street up to the western (or south-western) side-line of Lacroix Street but goes further and covers that portion of the bridge along Notre-Dame Street lying opposite to the opening of Lacroix Street. The words "to Lacroix," therefore, must be intercepted in the light of the plan, as "into" or to use the language of the agreement t to Lacroix Street as shown on the plan," and these latter words in my opinion, impose a larger obligation upon the city than the clause would if the reference to the plan had not been there. The city is not bound to construct any part of the bridge beyond the prolongation of the eastern or north-eastern side of Lacroix Street, nor any part of the bridge on Lacroix Street.

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Having already decided that the agreement and plan cannot be impeached for error or mistake, we cannot use the plan which the city produced, but which was not annexed to the agreement, as the one which they intended to be bound by. But even this plan shows the bridge to extend along Notre-Dame Street beyond the western (or south-western) line of Lacroix Street, although not quite so far beyond it as the governing plan attached to the agreement shows-

I am therefore of opinion that this appeal should be allowed in accordance with the judgment of my brother Girouard in which I agree.

MILLS J.—In this case the City of Montreal agreed to aid the Canadian Pacific Railway Company in making certain improvements relating to that railway and which the company had contracted to make within the City of Montreal. These improvements are mentioned in the amended declaration of the railway company. The railway company affirm that by a deed of agreement entered into on the 19th of December, 1893 the City of Montreal contracted to construct and maintain a bridge along Notre-Dame Street from Bern Street east-ward to Lacroix Street, as shown upon a certain plan attached to and forming part of the said deed and the railway track went beneath this bridge. They affirm that by this deed the parties to it were bound as soon as the said agreement was ratified by an Act of the Provincial Legislature, 57 Victo ch. 55, according to the true intention of the contracting parties. A difference of opinion arose between the municipal representatives of the City of Montreal and the Canadian Pacific Railway Company with reference to the construction of the bridge, the city maintaining that, under the said agreement, they were required to construct, according to the plan attached, or intended to be

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attacked, so much of the proposed bridge as extended from. Bern Street to Lacroix Street, and that they had so completed so much of the work as they were bound by the agreement with the Canadian Pacific Railway Company to do at their own cost and charges when they built that portion of the. stricture extending from the eastern boundary of Berri Street to the western boundary of Lacroix Street. The bridge as shown upon the plan extended far beyond the limits mentioned in the agreement, as it extended from the westerly side of Bern Street to the easterly side of Lacroix Street and thence along Lacroix Street for a distance of one hundred and twenty feet, and, as the street itself is eighty feet in width, this would mean the structure of between two hundred and three hundred feet more of bridge than the city maintains they are bound to build.

I am of opinion that the city is right in this contention, When they contracted with the railway company to build within two limitary lines, as shown on the plan, they meant to become bound for the construction of so much of the bridge, in the way the plan indicated, as lay between these limitary lines, and no matter how much of the structure shown upon the plan may have existed beyond these limits, it did not because it is found there, bind the city to the completion of the whole work at its own cost and charges.

The words "from" and "to" in their ordinary meaning are words of exclusion, and there is no necessary implication that they are used in this agreement in any different sense.

It has been held where a grantor conveyed lands extending to the bank of a stream, that the stream was excluded, and so I think here, the street from which the work takes its commencement, to the street

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to which in the agreement it is to be extended, are neither included in the work for which the city becomes bound. The words are:

The corporation covenant that they will construct and maintain a bridge for highway purpose along Notre-Dame Street from Berri Street to Lacroix Street as shown on the said plan of such a height as to make the land below it available for railway purposes but the upper level of the said bridge must not be higher than the level of Notre-Dame Street and to give the company the right to use the land below the said structure as they may require for railway purposes.

If it had been intended that the city should construct the whole of the bridge as shown on the plan then the limitary lines mentioned ought to have been such as to have embraced the whole bridge but this is not the case. A large portion of the structure lies outside of the limits mentioned and those limits must in this case govern.

On the fourth of August, 1896, it was agreed between the city authorities acting on behalf of the city and the Canadian Pacific Railway Company, that the company should advance to the city all the moneys necessary for the completion of the said bridge as shown on the plan, and that the judgment of the court should be sought to decide whether the construction put upon the agreement by the city or by the railway company was the true legal construction.

The agreement that the city should build according to the plan along Notre-Dame Street from Bern Street to Lacroix Street, did not by the agreement of the parties enlarge the obligation into which the city had previously entered. The obligation of the city is to be gathered from the written instrument by which they become bound; the plan attached was intended to illustrate that agreement and to make plain, without further words, the kind of structure that was required in which both the city and the railway company were interested, hut it could not supersede the agree-

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ment and could not require the city to construct a work not lying between the limitary lines mentioned, but extending far beyon them.

If it is said in a contract that C is to construct a bridge for D extending from A street to B street, the words are exclusive and if this be done according to a plan attached, and that plan shows the structure continued far beyond B street, it cannot on reason or authority be maintained that C is bound for the construction of any portion of the work beyond that mentioned in his agreement.

I am of the opinion that when the City of Montreal bridged Notre-Dame Street between the eastern boundary of Berri Street and the western boundary of Lacroix Street, it did all that it had contracted to do and the remainder of the work done by the city under the subsequent agreement is done at the expense of the railway company. I am therefore of opinion that this appeal should be allowed with costs both in this court and in the court below and that the action should be dismissed with costs.

ARMOUR J.—The Legislature of the Province of Quebec having by the Act 57 Vict. ch. 55sec. 1 ratified and confirmed the deed of the nineteenth of December eighteen hundred and ninety-three scheduled to the said Act, and all the conditions and stipulations therein contained, and authorized the contracting parties to fulfill and carry out the conditions thereof according to their terms and tenor, and granted power to the said parties to do all things necessary to carry out the said agreement according to the intention of the contracting parties, the said agreement became part of the statute law of the Province of Quebec, and was not open to attack on the ground of error or otherwise without first obtaining the repeal of the Act, for how

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could any court hold that to be invalid which the legislature had ratified and confirmed?

It is a common practice to schedule to private or special acts agreements made between the undertakers and other persons and to declare such agreements valid and binding between the parties thereto. The effect of so doing seems to be to make the agreements part of the statute and to exclude the possibility of contending that they are ultra vires as .being beyond the powers of the contracting parties or void as containing stipulations which would be illegal or void but for the statute, for the agreements by incorporation into the statute cease to be voluntary contracts and acquire statutory effect" Hard castle, 3rd ed. 497. And see Manchester Ship Canal Go. v. Manchester Race course Co, ([1]); The Caledonian Railway Co. v. Greenock and Wemyss Bay By. Go. ([2]).

The right of the plaintiffs to recover against the defendants must therefore depend upon the proper construction to be put upon the agreements entered into between them of the 19th December 1893 and of the 4th August 1896 respectively.

By clause 1 of the agreement of the 19th December 1893 the defendants covenanted that they would acquire (in so for as they had not already acquired the same) and would within the time thereinafter mentioned for that purpose convey to the plaintifs, an area of land bounded on the north by Craig street, on the east by Lacroix street, on the south by Notre Dame street and on the west by Berri street, including the streets within that area as shewn on the plan attached to the said agreement and forming part thereof, and also that part of Parthenais Square (about 4000 feet) which was then in the possession of the plaintiffs by a simple permission of the defendants. And by clause 5 of the said agreement the defendants covenanted that they would construct and maintain a bridge for highway purposes along Notre-Dame street, from Berri street to Lacroix street, as shewn on said plan of such

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a height as to make the land below it available for railway purposes, but the upper level of said bridge must not be higher than the level of Notre-Dame street and would give the plaintiffs the right to use the land below the said structure as they might require for railway purposes.

By the agreement of the 4th August, 1896 after reciting clause 5 of the agreement of 19th December, 1893, and after reciting that the City of Montreal alleged that it had constructed the said bridge from Berri Street to the south-west line of Lacroix Street according to the said contract; that the said railway company had contended that under the clause therein before cited of the said deed of agreement and according to the plan annexed to the said contract the said city was bound to continue the construction of the said bridge up to a point on the north-east side of the said Lacroix Street as shown on the said plan which contention the said City of Montreal regarded as incorrect and not in conformity with the said agreement and the clause thereof; that the said parties had agreed some time before to have that question decided by the court, and in the meantime to proceed with the completion of the said bridge; that under said understanding the said city had continued the said works up to date but was then unable to continue on account of its inability of advancing the funds necessary for the said works, and that the said parties were desirous to complete the said bridge as shown on the said plan as soon as possible; the said railway company agreed to advance to the said city all the moneys necessary for the completion of the said bridge either on Notre-Dame or Lacroix Street, as shown on the said plan to the extent of thirty-five thousand eight hundred dollars, the amount of the city's estimate of the cost of completing the bridge as aforesaid, and the said city agreed to proceed

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with the bridge on the following terms under the supervision of the said railway company's engineer, and the City of Montreal agreed that it would apply to the Legislature of the Province of Quebec at its next session for and would use its best endeavour to obtain legislation permitting the city to raise the money necessary to complete the said bridge as aforesaid, and if such legislation should be obtained or if a court of competent jurisdiction should finally decide that the city was liable under the said agreement to bear the cost of constructing and completing the said bridge further north than the line of the southerly limit of Lacroix Street, then any moneys advanced in the meantime by the said company for that purpose as therein before provided should be forthwith reimbursed by the city to the said railway company with five per cent per year interest thereon and the city should bear alone the cost of constructing and completing the said bridge as aforesaid. And the said railway company undertook that if the said judgment finally decided that the city was not liable under the said agreement to construct the said bridge further north than the line of the southerly limit of Lacroix Street then the said railway company would forthwith on demand repay to the said city all moneys which the city might have expended either before or after the execution thereof in completion of the same, provided that the amount of such expenditure and the amount expended for the same purpose by the said railway company should together not exceed thirty-five thousand eight hundred dollars the amount of the said city's estimate of the cost of completing the bridge as aforesaid, the said company being not bound to repay any sum over said amount, and would also pay interest on such moneys as might have been disbursed by the city for the said purpose at the rate of five per cent per annum from

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the respective periods of such disbursements. And by the said agreement it was provided that nothing therein should be held to effect or diminish the rights of either party under the said agreement of the 19th of December, 1893.

By the Act of the Province of Quebec, 61 Vict. ch. 53, the City of Montreal was authorized to borrow the sum of $3100000 for the following among other purposes:

Amount which the City shall perhaps be called upon to pay for Lacroix Street Bridge $350000

The covenant of the defendants contained in the agreement of the 19th December, 1893, was that they would construct and maintain a bridge for highway purposes along Notee-Dame street from Berri to Lacroix street as shown on the plan thereto attached. The bridge shown on the "plan thereto attached extended from the northerly side of Henri street to the southerly side of Lacroix street, thence across Lacroix street to the northerly side thereof, a distance of eighty feet and up Lacroix street a distance of one hundred and twenty feet. The defendants did not covenant that they would construct and maintain the bridge as shown on the plan, but only that they would construct and maintain a bridge along Notre Dame Street from Berri Street to Lacroix Street as shown on the plan, and under no possible construction of their covenant could the defendants be held liable to construct and maintain the bridge up Lacroix Street, nor could the defendants in my opinion, upon a proper construction of their covenant be held liable to construct and maintain the bridge across Lacroix Street from the southerly to the northerly side thereof as shown on the plan, but only to construct and maintain a bridge along Notre-Dame Street, from the northerly side of Berri Street to the southerly side of Lacroix Street, as shown on the plan.

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The words "from" and "to" are words of exclusion in their primary sense and must be so construed unless the subject matter or the context manifestly require that they should be given a wider meaning. Dougall v. Sandwich & Windsor P.& G. Road Jo. ([3]); Bradley v. Rice ([4]); Bonney v. Morrill ([5]); Montgomery v. Reed ([6]); State v. Libby ([7]).

.And here there is nothing in the subject matter or the context which requires that they should be given a wider meaning.

In indictments for nuisance by not repairing roads the words "from" and "to" exclude the termini Rex v. The Inhabitants of Gamlingay ([8]); Rex v. The Inhabitants of Upton on Severn ([9]); Reg .v. Fisher ([10]); Reg. v. Botfield ([11]).

I am of the opinion, therefore, that the defendants were not liable under the agreement of the 19th December, 1893, to construct the said bridge further north than the line of the southerly limit of Lacroix street.

It was, however, contended that even if the court should determine this question in the defendants' favour the defendants would nevertheless be liable to the plaintiffs for the money advanced by them for the purpose of constructing and completing the bridge further north than the line of the southerly limit of Lacroix street by reason of the defendants' covenant contained in the agreement of the 4th August, 1896, that they would apply to the Legislature of the province of Quebec at its then next session for and would use their best endeavor to obtain legislation permitting them to raise the money necessary to complete

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the said bridge as aforesaid and if such legislation should be obtained that they would forthwith reimburse the plaintiffs the money so advanced; but I am unable to accede to this contention and give effect to this covenant because by so doing I would be affecting and diminishing the rights of the defendants under the agreement of the 19th December, 1893, and by the agreement of the 4th August, 1896, in which this covenant is contained it is expressly provided that nothing therein shall be held to affect or diminish the rights of either party under the said agreement of the 19th December 1893. In my opinion, therefore, the appeal should be allowed with costs here and below and the action dismissed with costs.

Appeal allowed in part.

Solicitors for the appellant: Ethier & Archambault.

Solicitors for the respondents: Lafleur, Macdougall & Macfarlane.