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•mr^rv^F' J"

^^!p""l!PiPPPi!|Pippnp^

MEMORANDUM OF LEGAL PROCEEDINGS,

Based upon Agreement dated August i8th^ /<?75,

CANADA,

Province and I)istriot
OF Quebec. )

j Ju tto ^^^vm a^ourt,

No. 2829.

SILAS SEYMOUR, Flaintiff.

versus
Hon. THOMAS McaREEVY, Defendant

Messrs. TASCHEREAU & FORTIER,

Attorneys for Plaintiff.
Mr. R. ALLEYN, Q. C, Counsel.

Messrs. ANDREWS, OARON & ANDREWS,

Attorneys for Defendant.
Mr. C. G. holt, Q. C, Counsel.

)';M.(r^:«'fi^7.'V'Hi|!i|i«>pi«!ip^^

PLAINTIFFS DECLARATION.

The Plaintiff in the annexed Writ described, complains
of the Defendant, also therein described, and represents :

That the Plaintiff is and has been for many years, a
G-eneral Consulting Engineer, acting as snch more espe-
cially in so far as relates to the construction and equipment
of Railways, at Quebec and elsewhere.

That the Defendant was, from the twenty-first day of
February, eighteen hundred and seventy-four, to the
twenty-fourth day of September, eighteen hundred and
seventy-five, the Contractor for the construction of the
North Shore Railway, then being built and constructed by
the North Shore Railway Company, a body politic and
corporate.

That in the month of August last, the Defendant entered,
into negotiations with the Government of the Province of
Quebec, with a view of obtaining from the said Govern-
ment the contr>ict for the building of the said North Shore
Railway, on the basis of a cash consideration ; or of being
relieved from the contract already entered into for the
construction of the said Railway, which it was then ex-
pected would be taken in hand and built by the said
Govemment. * .

mmmmmmm^

2 LEGAL FBOOBSPIMOS.

That daring the said negotiations, the said Defendant
applied to the Plaintiff as G-eneral Consulting Engineer, as
aforesaid, for his aid and assistance therein.

That on the twenty-fourth day of September last, the
said negotiations ended, and a contract was entered into
between the Government of the Province of Quebec and
the Defendant, for the construction of the said North Shore
Railway, for a cash consideration to be paid the Defendant
for performing the contract therein mentioned ; which
9ontract was subsequently ratified and approved by the
Legislature of the Province of Quebec, on the twenty-
fourth day of December last ; and the said Government
authorized to carry out the same, and to build and con-
struct the said road.

That during all the said negotiations, the said Defendant
had the aid, assistance, counsel and advice of the Plaintiff,
as General Gonsulting Engineer, as aforesaid ; and that
the Plaintiff rendered the Defendant many and important
services in connection therewith, all of which enured to
his profit and advantage.

That in consideration thereof, the said Defendant, by
paper writing bearing date at Quebec, the eighteenth day
of August last, promised and bound himself toward the
Plaintiff as follows :

" In consideration for your extra services, (to wit : those
" above mentioned) I hereby agree that if I close an
" arrangement with the Provincial G-overnment of Quebec,
" by which the Government either takes the North Shore
" Railway contract off my hands, or pays me a cash con-
" sideration for performing the contract, I will pay you
" five thousand dollars upon the closing of such an ar-

plaintiff's dbolahation.

" rangement, also five thousand dollars additional within
" one year from that date, and five thousand dollars addi-
<• tionj^l within two years from that date, making in all
" fifteen tnousand dollars."

That in view of the premises, there is due by the De-
fendant to the Plaintiff, the sum of five thousand dollars,
being the amount payable upon the closing of the said
arrangement, which the Defendant refuses and neglects
to pay, though often thereunto required.

Wherefore, the Plaintiff prays judgment against the De-
fendant for the sum of five thousand dollars, with interest
and costs.

Quebec, 9th June 18*76. •

-r

RF*

DEFENDANT'S ANSWER.

And the said Defendant, for answer nnto the demand of the
said Plaintiff, in the Declaration of the said Plaintiff in this
cause fyled contained, not confessing nor acknowledging
any of the matters or things in the said Declaration set-
forth and alleged to be true, save and except as hereinafter
stated, by this his perpetual Exception piremptoire en Droits
saith that the said Plaintiff, bylaw, cannot at any time have
or maintain any action against the said Defendant for or
by reason of the matters and things in the said declaration
set forth and alleged, or in of any or either of them.

For that during all the period during which the said
Plaintiff in his said declaration alleges that he performed
services ^or the said Defendant, he the said Plaintiff was
the salaried officer of the North Shore Kail way Company,
to-wit : at a salary of five thousand dollars per annum,
which salary was paid him during all the said period ;
and any matter or thing done or performed by the said
Plaintiff du'-ing the said period, in relation to, or connec-
tion with the said North Shore Railway, or its construction,
or in relation to the contract for the construction thereof,
was so done and performed by him, the said Plaintiff, as
such salaried officer of the said Company, and not for him
the said Defendant, or in his tbo said Defendant's interest.

■T

defendant's answer.

That the continuing by the said Plaintiff to hold the
said office under the said Company, disqualified and pre-
vented the said Plaintiff from rendering the said Defendant
any services in connection with the said Bailway, its con-
struction, or the contract for its construction. And in fact
the said Plaintiff, far from rendering the said Defendant
such services, or in any manner advancing the interests of
the said Defendant in the premises, acted adversely to the
Defendant's interests, opposed the Defendant's wishes and
desires in the matter, and purposely injured the said De-
fendant, both by his wordfi and deeds, in connection with
the said Railway, and wit^ the Defendant's negotiations
with the Government of <his Province ; and generally in
all matters in relation to the Defendant's contract for the
construction of the said Road, and the ratification by the
House and Legislature of this Province, of the contract
between the said Defendant and the Government.

That the said Plaintiff never performed any of the ser-
vices contemplated or alluded to in the paper-writing, or
missive in his said declaration referred to, or attempted,
or was willing to perform the same or any of them.

Wherefore the said Defendant prays. the dismissal of the
Plaintiff's action in this behalf, with costs.

And the said Defendant, for further plea to the said ac-
tion, and without waiver of the foregoing, saith : That the
said Plaintiff, deceitfully pretending that he had rendered
him, the said Defendant, assistance and services, which in
fact he had not rendered ; and concealing from him the
fact that he had on the contrary, acted adversely to his
the Defendant's interest, obtained from the Defendant a
sum of two hundred dollars, paid by him, the Defendant

LEGAL PBOOKBDINOB.

to J. G-. Colston, Esquire, Advocate, at the request and
upon the written order of him the said Plaintiff ; and also
ohtained from him, the said Defendant, his the Defendant's
two negotiable notes, dated at Quebec, the first of May,
eighteen hundred and seventy-six, for the sum of twelve
hundred dollars each, and payable, respectively, three and
four months after their said date ; and which said notes,
he the Plaintiff has negotiated and received the proceeds
of; and he the said Plaintiff has also had and received of
the money of the said Defendant, paid to him by the Gov
erument of this Province, between the first day of Novem-
ber last, and the first day of May last, as salary as Consult-
ing Engineer, a further sum of two thousand five hundred
dollars, which sum he the said Plaintiff was not entitled
to, and did not earn ; inasmuch as the said Plaintiff did
not render the said Defendant any services during the said
period, and was not in his employ during the said time ;
and he the said Defendant is entitled to set up in compen-
sation, and doth hereby set up in compensation the said
several sums, against any demand which the said Plaintiff
may legally have or prove against him, the said Defendant,
for or by reason of any of the matters or things in his said
declaration referred to ; and the said demand hath thereby
become and is paid, and satisfied, and discharged.

Wherefore the said Defendant humbly prays that for the
causes aforesaid, by the Judgment of this Honorable Court,
the said compensation be declared, and the action of the
said Plaintiff, in this behalf, be hence dismissed with costs.

Quebec, July 6, 1876.

Z i ,

'Jt

ADMISSIONS BY DEFENDANT.

See answers to Articulation of Facts.

1. That Defendant was, from February ''st 18*74, ^o
September 24tb 1875, the Contractor for the construction
of the North Shore Railway, under the Railway Company.

2. That in A.ugust 1875, Defendant entered into negotia-
tions with Government, with a view of obtaining a con-
tract for building the North Shore Railway, on the basis
of a cash consideration.

8. That on the 24th September 1875, the said negotia-
tions ended, and a contract was entered into between
the Government and the Defendant, for the construction of
the said North Shore Railway, for a cash consideration to
be paid the Defendant for performing the Contract.

4. That the said Contract was subsequently ratified and
approved by the Legislature of the Province of Quebec,
on the 24th December last.

See answers to Faits et A rticles.

5. That Defendant had communications with the Plain-
tiff, as General Consulting Enginter, during all said nego-
tiations, concerning documents which the Plaintiff stated

LEGAL FBOOBEDINOS.

that the Treasurer of the Province kad put into his, the
Plaintiff's hands, to prepare a contract with the Govern-
ment, and assist him, the Treasurer, in making a contract.
That was in the month of August.

6. That Defendant signed a document, bearing date at
Quebec, August 18th 1875, by which he promised and
bound himself towards the Plaintiff, as follows :

" In consideration for your extra services, I hereby
agree, that if I close an arrangement with the Pro\.^cial
Q-overnment of Quebec, by which the Government either
takes the North Shore Railway Contract off my hands, or
pays me a cash consideration for performing the contract
I will pay you five thousand dollars upon the closing of
such an arrangement ; also five thousand dollars addi-
tional within one year from that date ; and five thousand
dollars additional within two years from that date ; making
in all fifteen thousand dollars." And that, upon being
shewn the document referred to. Defendant acknowledged
that it was signed by himself.

See testimony of Hon. Thos. McG-reevy,

7. That subsequent to signing the above letter, the De-
fendant closed an arrangement with the Provincial Gov-
ernment.

8. That during the progress of Defendant's negotiations
with the Government, he had communication on several
occasions with the Plaintiff, and saw him several times
about the preparing of the contract, or a draft of the con-
tract. Also, that Plaintiff wrote Defendant on several occa-
sions. Also, that Defendant may have kept some of these
letters ; and some he may not have kept.

'!iK*'i

' — *.,

ADMISSIONS BY DEFENDANT.

,c^

9. That upon being called upon to produce these letters,
Defendant produces original letters signed by Plaintiff, of
the following dates : Sept. 23, 1875— Feb. 4, 1876— Feb. 18,
1876— April 10, 1876— April 26, 1876— May 2, 1876— May 4.
1876, and May 6, 1876, — admitted copies of all which were
fyled as Plaintiff's Exhibits A. B. C. D. E. F. a. and H.
respectively.

10. That Defendant was always desirous of obtaining
responsible parties to advance the means in the carrying
out of said contract : (to-wit the original contract with the
Railway Company). Also, that Defendant did enter into
arrangements with Plaintiff to that effect, through the
Hon. Mr. Irvine.

11. That, in August and September 1876, the Defendant
had occasion to have several interview's with the Plaintiff"
with rererence to the proposed new arrangement about to
be entered into for the construction of the North Shore
Railway by the Government. Also, that during this time,
there were frequent negotiations carried on between the
Defendant and the Government, to come to an understand-
ing in the matter. One of the principal objects was, that
the Government should undertake the construction of the
Road, instead of the Railway Company. And another prin-
cipal object was, to substitute a cash basis for payments, in
lieu of Railway Bonds and subsidies.

12. That Defendant was told by the Plaintiff, that the
Treasurer of the Province had called on him (the Plaintiff^
to assist him (the Treasurer), in preparing the draft of Con-
tract, Schedules and Estimates.

13. That Defendant was very desirous that the thing,
(to-wit, the preparation of the Contract, Schedules and

LEGAL PBOOBSDINOS.

Estimates) should be put through as soon as possible, and
that there should be no delay.

14. That Defendant signed an agreement, during these
interviews, with the Plaintiff, upon which this action is
based, in order that there should he no delayn^ as before sta-
ted; knowing that the Plaintiff had the means in his power of
keeping it back ; which (to-wit, the signing of the agree-
ment) the Defendant would not have done under any other
circumstances ; It ivas not signed for services rendered^ and
only for the reason above mentioned.

15. (Tacitly.) That after signing the said agreement, the
Defendant had a conversation with the Plaintiff respecting
the then existing state of Defendant's negotiations with the
G-orernment, concerning the said contract; and that
amongst other things. Defendant declared to Plaintiff, that
there was a difference between Defendant and the Govern-
ment of some four hundred and fifty thousand dollars,
respecting the consideration of the main Line alone.

(Direct.) The Defendant cannot state the exact amount,
but there was always a difference between the Govern-
ment and the Defendant.

16. That Defendant's interviews with the Plaintiff were
chiefly at the Plaintiffs office ; but Plaintiff may have
sometimes come to Defendant's house.

17. That Defendant believes the contract was supposed
to be ready about the last days of August ; but the Gov-
ernment thought proper to delay it until the 24th of Sep-
tember. And Defendant also believes the delay was with the
Government.

18. That Defendant dont think that, between the 18th of
4ugust, and the 24th September 1875, the Plaintiff ren-

i..

ADMIl9SlOire BT DEFENDANT.

f, .'^

'h-

ddired services towards the facilitating and bringing abotit
the new contract above referred to, for the reason that^ all
Defendant knew Plaintiff to do^ was considerably altered and
changed by another Engineer whom the Government em-
ployed to take charge, that was Mr. Light ; And the contract
as drawn out by the Plaintiffs was completely changed.
(The foregoing contains the important admission that the
Plaintiff prepared a contract, in persuance of the " Extra
'services " which the Defendant admits were contemplated
by the agreement of August 18th 1875.)

19. That Defendant might have met the Plaintiff, and
have examined, at Defendant's house or elsewhere, the
drafk of a new contract, before Defendant signed it. Also
that the Plaintiff may have made suggestions, to the De-
fendant with respect to alterations or additions to be made
for Defendant's protection or interest, in the draft of the
new contract, before it was signed, other than those men-
tioned in Plaintiffs letter of September 18, 1875. Also^
that at the last moment, a cash consideration was substituted by
the Government in lieu of the $125,000 subscribed by the
municipalities — (referred to in said letter.)

20. That Defendant may have answered some of Plain-
tiffs letters, but he kept no copy of them. Also, that De-
fendant may have met the Plaintiff, near the Montreal
Bank, last February ; and may have had a conversation
with him about the subject matter of this cause ; and
Defendant may have stated to Plaintiff that he was going
to make a settlement with him. Also, that Defendant may
have stated to Plaintiff that he intended to call on Plaintiff;
and Defendant believes he did so state, and give Plaintiff a
turn of money; but Defendant cannot say the amount. Also

LEGAL PROCEEDINGS.

that Defendant intended to have given the Plaintiff such sum
of money, in consideration of the arrangement made with
Plaintiff'—{tO'witj the agreement of August 18, 1875.)

21. (Tacitly.) That Defendant was aware that, pending
the negotiations which led to the execution of the contract,
on the 24th of September of last year, the Plaintiff had
Parties willing to assume an interest in the then existing
contract for the building of the road. (Direct.) Negotiations
were kept in abeyance with certain parties during that time.
Also, that Defendant remembers, as one of the parties to whom
he refers, the name of Mr. Aiken, the person mentioned in the
declaration in the other cause. Also, that Defendant signed
the letter addressed to the Plaintiff (dated Quebec, 22nd
July, 1876,) marked Plaintiff's Exhibit L, at Enquete. Also,
that Defendant believes he had an interview with the Plaintiff
and Aiken. Also, that Defendant wrote, signed, and sent to
the Plaintiff; Exhibits at Enquete, I. J. M. & N. (Being
letters dated respectively, April 17th, 1876 — May 1st, 1876 —
May 4, 1876, and one other.)

22. That Defendant was aware, that in June last, 1875
the Plaintiff was a Consulting Engineer to the North Shore
Itailway Company, at a salary of five thousand dollars a
year, which Defendant paid, by virtue of his contract with
the Company. Also, that Defendant knows that Plaintiff had
a sign on his office door, as " General Consulting Engineer."

'"A

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•

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FACTS PROVEN BY PLAINTIFF.

See testimony of Hon. George Irvme.

1. That in 1871. Plaintiff had an office in New York
Oity, as an Engineer, following his profession ; and that
he was then and there consulted respecting the North
Shore Railway. *

2. That Plaintiff came to Canada soon after that date,
and was engaged as Consulting, and acting Chief Engineer
upon the North Shore Railway.

See testimony of Mr. A. H Verret.

8. That Plaintiff acted as Chief Engineer of the North
Shore Railway Company, from 1871, up to May 1st 1876;
when he resigned as such, remaining as Consulting En-
gineer of the Company.

4. That after Plaintiff's resignation as Chief Engineer,
he changed the Sign on his office door, and substituted
thereto the following : " G-eneral Consulting Engineer. "

5. That witness often met the Defendant at his office,
(to v/it the N. S. R. Office) and had conversation with
Defendant ; and always understood from the conversation,
that the Defendant was on good terms with the Plaintiff.

LBOAL PB0CBEDIN08.

And that Plaintiff was assisting Defendant to prepare
figures and estimates for the Contract in question. Also
that witness saw the Defendant coming down the stairs
which led to Plaintiff's office. Also that Plaintiffs office
was on the flat above witness' office.

See testimony of Hon, A. R. Angers.

6. That, between August 18th, and September 24th,
1875, at the request of the Plaintiff, and as a personal
favor, the then Solicitor G-eneral of the Province of Que-
bec, being also a member of the Provincial Government,
let the Plaintiff see the draft of th& proposed Contract
with the Defendant ; and also that the Plaintiff afterwards
returned the same to the Solicitor G-eneral, with a written
communication.

7. That the Plaintiff also sent to the Solicitor General,
a letter accompanying said communication, of which
letter the Solicitor General believes Plaintifi's " exhibit
Z, " to be a true copy.

8. That the Plaintiffs " exhibit T " at Enquete, (to
wit : Remarks of the Consulting Engineer upon the form of

Contract)^ is the communication in question.

See testimony of Mr. A. L, Light.

9. That the Government Engineer (Mr. Light) was not
present in Quebec, during the negotiations b^-tween the
Government and Defendant, until after the 29/A August
Asd that) after that date, he, the Gbvernment Engineer

)

^ "^ 1

..#

FACTS PROVEN BY PLAINTIFF.

I • -t.

was present in Quebec dnring the negotiations which
resulted in a Contract between the Government and the
Defendant for the construction of the North Shore Railway
upon a cash basis.

10. That after that date, the Grovernment Engineer took
an active part in these negotiations, and the preparation
of the Contract, Specifications, Estimates and Schedules
which form part thereof, or are referred to therein.

11. That the document shewn to the Government En-
gineer, marked Plaintiffs Exhibit ^* A. A. " at Euqu^te, (to
wit : Points to be considered in adjusting the existing Contract
to a cash basis, ^c), is in the hand-writing of the Flitin-
tiff. Also that many of the points herein expressed are
embraced in the present Government Contract. Also that
^he Government Engineer saw many of these points em-
bodied in the rough draft of the Goveinmeut Contract in
the hand-writing, and in the office of the then Attorney
General Church. Also that the Government Engineer
examined, together with other papers having reference to
the matter, with Mr. Church, and Mr. Angers, the present
Attorney General. Also, that there was one document
signed by the Plaintiff, and in the hand-writing of his
son. It was a draft of a new Schedule ; and a copy of
Plaintifi's Exhibit " B. B. " at Enquete.

12. That the Government Engineer is aware, that by
the insertion in the Contract, of point or clause " 12 " (as
contained in Exhibit marked A. A.) the Contractor, (the
Defendant) has benefitted to the extent, at present, of
some 15,000, in consequence of a change of location for
about I of a mile, near Portneuf. And it is at present an
opeiji question, whether there shall be other changes.

MEMORANDUM,

Showing the identity or similarity of certain para-
graphes or conditions, as contained in PlaintifTs " Exhibit
A A," in Plaintifl's hand-writing, referred to in Mr. Light's
testimony ; (being *' Points to be considered in adjusting the
existing Contract to a cash basis, Sfc, ") and those contained
in the present Government Contract ; and demonstrating
also that the Contract was prepared chiefly from Memo-
randa furnished by Plaintiff.

Extracts from Points^ Sfc.

" 1. The existing Contract and Spe-
ciScations, together with Circular No.
'i, dai :i June 12, 1874, to remain in
full force and effect, except as here-
after changed or modified. "

" 3. Steel rails of the best quality
and pattern, weighing 56 lbs. per
lineal yard, to be used for the main
through track.-^The switches and sid-
ings to remain of iron of the same
weight and pattern. "

Extracts from Contract.

" The said Hon. Thos. McGreevy
hereby undertakes, binds and obliges
himself toward the said party of the
second part, to do and perlbrm all the
obligations, and to execute all the
works which under the aforesaid Con-
tract of date the 21st of Feb., 1874, he
was bound to do and perform to and
in favor of the said Company, subject
however to the requirements of a cer-
tain circular called Circular No 2,
dated the 12th of June, 1874, signed
Silas Seymour, and hereunto annexed
to form part of the presents. "

" The party of the first part coven-
ants and atrrees to use and employ
steel rails of the best quality and pat-
tern, weighing 56 P9unds per lineal
yard fbr the main through track, the
switches and sidings to remain of iron
of the same weight and pattern. "

..•o

MEICOBANDUM.

" 4. Iron truss bridges of the best
quality, and most approved plans, to
be ado|)ted for the crossing of the St.-
Annes, Batiscan, St.>Maurice, and Ot-
tawa Rivers. — All other bridges to
remain of wood. "

** 5. All changes in grades, plans,
Ac, to be made by the Contractor, in
conformity with Government require-
ments. "

" 6. The Contractor to pay for the
entire right of way. "

'* 7. The plans and detailed n)ecifica-
tions of the diiferenl worlcs, stnictures,
buildings, and equipments, to be ap-
proved by the Government Engineer.
And all work and materials will be
subjected to his inspection and aj)-
proval, before being accepted and paid
for by the Government.

<< 8. The Main Lins to be fully com-
pleted and equiped to the satisfaction
of the Government on or before the..."

" 9. The entire consideration for the
Main Line to be $4,266,000. "

'< 10. A revised Schedule of quan-
tities and prices, to be prepared, sub-
ject to the approval of the Government
and the Contractor, which being com-
puted at proper relative rates, shall

" The party of the Brst part coven-
ants ani agrees also to build iron
truss bridges of the best Quality, and
most approved plans, for the crossing
of the Ste -Annes, Batiscan, St.-Mau-
rice, and Ottawa Rivers. All other
bridges to remain oi wood. "

« The party of the first part hereby
covenants and agrees to make all
changes in grades, plans, specifloa-
tions, and otherwise), in conformity
with the Governmeiit requirements."

'' Notwithstanding anything in any
one of the Contracts hereinbefore re-
fered to, the said Contractor shall be
bound to furnish, at his own proper
cost and charges, any and all grounds
necessary and required, in the opinion
of the Government Engineer and Com-
missioners, for the service of the said
Railway."

" And it is fully understood and
agreed by and between both parties
hereto, that the profiles, plans, work-
ing drawings, and detailed specifica-
tions of the different works, structures,
buildings and equipments, shall be
made by the said Contractor, and t\illy
approved by the Government Engin-
eer, before work is begun upon them.
And that all work and materials shall
be subject to his inspection and ap-
proval before being accepted and paid
for by the Government. "

<' That the whole line of the Main
Road and Piles Branch, with all the
buildings, rolling stock, snow fences,
Ac, steamboat, Ac, as referred to in
the above recited Contracts and herein,
shall be fully completed and delivered
in first class order, so as to be accepted
by the Government, on or before the
1st day of December, 1877. "

NoTK. — ^1 he consideration named in
the Contract is $4,732,387 SO. which
includes Main Line. Piles Branch, and
$50,000 for debts of Company.

" That as to the manner of settling
for work already done, on the said
line, the amount thereof shall be as-
certained by the Government Engine
eer, its value shall be paid by the

LEGAL PBOOBEDINQS.

aggregate the sum of 94,766,000 (for
the Main Line), upon which Schedule
an estimate of the woric already done,
materials procured, and expenditures
incurred shall be based. — And pay-
ment shall be made therefor in cash,
upon the certilicate of the Government
Engineer, after deducting the amount
received by the Contractor on account
thereof from the Hallway Company,
together with — per cent, which shall
be retained as security for the full
and faithAil performance of the Con*
tract. "

'< 1 1. Monthly payments, based upon
the same schedule, to be made upon
future progress estimates, as certilied
by Ihe Government Engineer, on or
before the 10th of each month, from
which the same percentage shall be
deducted, until the total amount of
•aid percentage shall reach the sum
on

" 12. If the location of any portion
of the line shall be changed — or if the
length of the road required to be cons-
tructed shall be either greater or less
than the distance of 158 miles now
contemplated and provided for, the
increased or diminished cost resulting
from such chinges, ns compared with
the cost of the present line, will be
computed at the same schedule rates
above provided for ; and the total con-
sideration will be adjusted according-
ly, by either increasing or dim*ni«hing
the amount, as the case may be. "

Schedule of prices hereunto annexed
marked "B,*' bearing date 1st Septem-
ber ; and the gross sum thus ascertain-
ed, after deducting drawback h>^rein-
alter mentioned, and the amounts
already paid, the balance shall be paid
to the said party of the first part. "

" And as to the manner of settling
for the work to be done hereafter
by the contractor, it shall be done as
follows : Monthly estimates of the
quantities thereof, and of the materials
which are bond j^de in poss*'Ssion of
the contractor on the said Railway,
shall be made by the Government
Engineer under the said schedule by
htm prepared marked <• B," and hereto
annexed, arid the amount thereof paid
on or before the t5tb day of the suc-
ceeding month, less such deductions
as are stipulated for under this con-
tract, as a draw-back for the due and
ultimate fulfilment of the said work."
" That ten per cent of each monthly
progress estLoiate shall be retained by
the Government as security for the
due fullilment of contract by the said
contractor ; and when the amount so
kept back shall amount to, at least
$100,000, five per cent on ench month-
ly estimate thereafter may be retained
till the final completion of th") contract
in all its parts, and the acceptance
thereof by the Government. "

" It is further agreed and under-
stood that in case any alterations are
made in the location of the line or
road, or in the construction of such
part thereof, which will increase the
cost of (to) the ^aid contractor either
in grading, bridging, or length of line,
dtc , &c., the said contractor s'^nli hn
paid such additional cost pro rnta with
the schedule then in force, and at
prices mentioned therein : and in case
of any decrease in the cost of cons-
truction consequent on any such
change of line, a corresponding deduc-
tion shall be made by the said con-
tractor, as per schedule rates."

■•?

MKMOBANDXnt.

ff '\

*< Id. t^. upon Iho porreclion of the
pinna, and the computation i i' the tinal
quantities, it shall be fnund, liuring
the progress or the work, that there
are material 'leftcts or omissions, in
the Schedule herein provided Tor, said
8ch<>dute may be revise<l and perfect-
ed, — but in no event shall the total
amount thereof be greater or less than
the sum of $4,266,000. for the full and
linal completion of the Main Line, as
now located, and herein contemplated
to be done. "

'< 15. If the Contractor refuses or
neglects to meet, within a reasonable
time, any of the obligations or pay-
ments which ho has assumed under
this agreement. Or if he delays, lor an
unreasonable length of time, the pay-
ment for labor performed, or materia 19
purchased for, or in connection with
the work, the Government to have the
power to make such payments, and to
deduct the amount from the Contract-
or's Estimates. "

'< 16. If the Contractor fails to pro-
cecute the work in a proper manner,
or at a rate or progress that will en-
sure its completion within the time
speciBed, the Governmf^nt to have the
power to cancel the Contract, and to
enter into other arrangements for its
completion. "

" It is further understood and agreed
that the Government Engineer may
change the Schedule rates of prices, if
found necessary, to secure the ftiU
completion of the Road ; or in case
the 8chedul>4 already made bear too
hard upon the Contractor; suMool
however to the approval and ratifica-
tion or the Lieutenant-Governor in
Council ; but in no case sh^tl the cost
of the Road exceed the gross jwice
hereinafler mentioned. "

« It is further agreed and wdei^
stood, that if the Contractor reAisos or
negiects to meet within a reftsonable
time, any of the obligations or pay-
ments which he has assumed under
these presents ; or if he delays for an
unreasonable length of time, the pay-
ment for labor pei formed or materials
purchased for in connection with the
Road, then and in any of said cases,
the Government shall have the power
to make such payments, and to deduct
the amount thereof flrom the said Con-
tractor's Bstimates. "

<• Or that, if the contractor flails to
prosecute the said work in a proper
manner, or at a rate of progress tnat
will ensure its completion "within the
time specifled, that then, and in any
of said cases, the Government shall
have power to cancel the whole con-
tract, and to enter into other arrange-
ments for its completion."

It will be seen from the above, that all the Points as
suggested by the Plaintiflf, are directly covered by the
Contract^ except the " 2d," which is provided for in the
" 12th" ; and also the " 14th," which refers to a sub-schedule,
and is really provided for in the " 10th " and " 11th."

The language and terms used, are also generally identical^
except where amplifications are introduceu for the pur-
pose of adapting the ideas to the ordinary and more foroial
terms of the contracts

TESTIMONY FOR DEFENCE.

1 ' X

See testimony of Mr Charlea Oddl,

1. That witness is in the employ of the Defendant sir .e
the summer of 1874, as his Engineer in Chief, in connec-
tion with the North Shore Railway; and had a know-
ledge of the last contract entered into with the Provincial
Government ; and was engaged in the preparation of the
details of that contract before it was drawn out and
signed ; and the witness' office, and the professional skill
which it contained, were quite sufficient for the purpose
of getting up all the estimates and details with reference
to that contract.

2. That subsequently to the 1st of May 1875, the Plaintiff
was the Consulting Engineer of the North Shore Railway
Company ; but witness had no communication with the
Plaintiff as such Consulting Engineer.

8. That witness is certainly of the opinion that the
Defendant could obtain from witness, as Engineer, all
\h.% information he might require in relation to his con-
tract, without the services of the Plaintiff.

4. That upon being shown Plaintiff's Exhibit " A A " at
Enquete (to wit, " Points to be considered in adjusting the

.^tt,

TKSTIMONT FOR DBFENOB.

existing contract to a rash basis") Witness believes that he
saw a copy of the same in the office of the Defendant.

5. That witness' attention has been drawn to clause
twelve (of said Exhibit) ; and it seems to him to be a clause
which works both ways, and does not protect one party of
the contract more than it does the other ; and as to the
rest of the contract, it is rather binding on the Contractor,
and the Government has the best of it.

.^,

Gro88-Examrned by Plaintiff.

6. That witness saw the copy of that Document this
morning in the Defendant's office ; and witness thinks it
was not in the hand- writing as that of PlaintifiTs Exhibit
" A. A." It was the Defendant himself who showed wit-
ness that copy, which witness has examined, and believes
to be a true copy of that Exhibit, which he has also exam-
ined.

7. That the nature of the information given by wit-
ness to Defendant, and which were subsequently embo-
died in the contract, or used as a basis, is as follows : as
to the quantity of Earth and Bock work, and the general
clearing, grubbing, foundations, massonry of different
classes, track-laying and ballasting, and general equip-
ments of the Road.

8. That in obtaining the above informations, the witness
took as a basis, quantities and items from the original sche-
dules which were furnished by the Chief Engineer of the
Company, under the old contract ; and to this, witness added
and estimated the different quantities of the different classes
of work required to bring it up to the standard as
suggested) or called for by the (provernment Engineer..

LEGAL PROCBEDINOS.

9. That upon referring to clause five^ in the said Exhibit
" A. A," witness is of opinion that if said clause being em-
bodied in the contract, and clause twelve being left out, the
Contractor would not bo entitled to an advance, supposing
the work increased, neither would anything be deducted
supposing it was diminished.

10. That witness is not aware at present of the Con-
tractor having as yet received any advance. There has
been a change in location which may probably increase
the work, to what extent witness cannot say.

' Re-Examined by Defendant.

11. That, under clause twelve^ if the works are increased,
the Contractor is entitled to be paid therefor ; and if the
works are diminished, a proportionate reduction, as the
witness has already stated.

t:>

See testimony of Mr. John T. Prince.

12. That witness is in the service of the Defendant as
Cashier and Accountant, since January 1874, and is aware
that Defendant was and is the Contractor for the building
of the North Shore Railway ; also that the Plaintiff was
the acting Chief Engineer for the Company, during the
whole time of witness' residence here, up to the beginning
of the year 1875, at a salary of ten thousand dollars per
annum, which was paid by the Contractor, through the
witness, as his Cashier. After the Plaintiff* ceased to be
the Chief Engineer of the Company, he continued to be
the Consulting Engineer, at a salary of five thousand dol-
lars, also paid by the Contractor.

TESTIMONY FOR DEFENCE.

13. That witness is aware that, during this period, the
Defendant had a Chief Engineer, that is to say Mr. Charles
Odell, the witness examined in this case.

Cross- Examined hij Plamtijj^.

14. Witness cannot say by whom was paid th6 salary of
the Plaintiff, of five thousand dollars, as Consulting Engi-
neer ; but witness knows the money came from Mr.
McGrreevy, but the Plaintiff was paid at the Company's
office; witness knows that, because it was afterwards
charged to us by the Company.

See testimony of Mr. Thomas J. Rash.

16. That witness has been following his profession as a
Civil Engineer since the year 1 854 ; and has been engaged
continually during all that time, in that capacity, in the
construction of Railways, in Europe, Africa, the United
States, and in this Dominion.

16. That the duties of a Civil Engineer in these matters
are : first the location of the line, fixing the proper grades
for the Road-bed, proper drainage, to see that the road is
properly constructed, both in regard to the earth-work or
rock-work, mt^sonry and superstructure for bridges ; as
also the building of the Depots, shops, &c. ; and of course
in regard to rolling-stock ; of course his duty is also to
make out the proper specifications, and prepare the neces-
sary estimates of work done and material delivered for the
construction of the Road.

17. That the witness has parti oularlv examined the
Plaintiff's Exhibits " A. A." " B. B,' ar>d ' T," at Enquete.

mam

LEOAL PBOCBEDINOS.

The first of these Exhibits contains the Rules for the con.
struction of a first class Railway, generally used on the
construction of most Roads. " B. B." is a schedule of
prices ; and " T " seems to contain son.e amendments to
the first paper, and some other matters that witness is not
particularly acquainted with.

18. That it appears to witness, that some of the clauses
of these documents are pretty strong in favor of the
Grovernment, and against the Contractor. Witness espe-
cially refers to clause seven in Exhibit " T " as a most arbi-
trary rule not known to him as having been used on any
Railroad with which he has been connected.

19. That the work and materials, and contents of the
said Documents or Exhibits, three in number, are within
the ordinary duly of a Railway Engineer.

Cross-Examined by Plaintiff.

20. That, since three weeks after witness arrived in
Quebec, about four months ago, he has been in the em-
ploy of the Defendant as Chief Draughtsman ; and that
yesterday the Defendant shewed witness the Exhibits
spoken of in his Examination in Chief; and told him to
read them through, and make up his mind as to the con-
tents of the said papers, for the purpose of giving evidence,
witness presumes in this case.

21. That witness has worhed, both as Engineer of a
Railway Company, and as Engineer of a Contractor or
Contractors. "When witiio^s worked as Engineer under a
Contractor, the Contractor had not the control of the En-
gineers and Engineers Department of the Road, except in
pne instance, when he worked for Messrs Peto, Bras

TESTIMOinr FOB DEFBNOE.

»t

sey and Betts, who had fall control. In the other in-
stances it was the Railway Companies that had the control
of the Engineers, and Engineering Department ; as the
Contractors had work and were paid by the yard for
masonry, earth or rock-work, &c., &c., which is entirely
different from the system nsed on the North Shore Rail-
way, which Road is contracted for a bulk sum.

22. That witness knows nothing about the contract
which existed between the Defendant and the old North
Shore Railway Company ; nor does he know any thing
abont the existing contract between the Government and
the Defendant. All that witness knows is what is con*
tained in the Exhibits " A. A." " B. B." and " T," part of
which he presumes is embodied in the present contract.

28. That when the witness was acting as Consulting
Engineer on a Railway, had the Contractor referred to
witness for papers such as Exhibits " A. A." " B. B." and
*' T," the witness would have been bound to furnish
papers of that kind, demanded by the Company ; and at
the request of the Company only.

(

PLAINTIFF'S EVIDENCE IN REBUTTAL.

See testimony of Mr. J. A. Gharlehols, Notary.

1. That the two Contracts filed at Enquete, Nos. " 23,"
and " 24," are true copies of the original contracts executed
before witness as Notary; the first, between the North
Shore Railway Company and the Chicago Contracting
Company ; and the other between the Defendant and the
North Shore Railway Company.

See testimony of Mr. Philipjte Huot^ Notary.

2 That it was the witness who passed the contract
between the Defendant and the Provincial Government,
on the 24th of September of last year. A duly certified
and authentic copy thereof is to be found filed in this
cause, in Plaiutifi's Exhibit at Enquete " 0."

See testimony of Mr. A. H. Verret, Secretary.

8. That the witness was Secretary Treasurer, of the
North Shore Railway Company, during its existence.

JPLA1NTIFF*S KyiD«NOE TN HEBTTTTAL.

«7

/.'

4. That the Plaintiff's Exhibit " No. 22," at Enquete, is a
true copy of Resolution passed by said Company, on the
11th of August 1876, (to wit, the Resolution " declaring the
inability of the Company to construct the road under the
existing arrangements ;" and that " the Company are
therefore ready to allow the Government to deal with
the question in any way they may in the public interests
think proper, making such arrangements with the Con-
tractor as may be found necessary")

5. That under the terms of the contract between the
Railway Company and the Defendant, the latter was
bound to pay all expenses connected with the Engineer-
ing Department, as per Schedule ; and the Defendan
furnished the Company with the vouchers connected with
such payments. They were entered in the Monthly Esti.
mates and repaid him by the Company. This sum of
course included the salary of the Consulting Engineer, for
his regular services as such.

6. That in August and September 1875, the witness is
not aware that the Company called on the Plaintiff for the
information contained in Plaitiff's Exhibits " A. A " " B. B."
and " T " at Enquete ; nor indeed does witness believe
that the Company took any step or action whatever, after
the 1 1th of August of said year, with respect to the con-
struction of the said road. Everything was at a stand-
still, waiting for the action of the Government.

6. That, after examining said Exhibits " A. A." " B. B."
and " T," the witness does not believe that, in the said
month of August, it w^as proper, or necessary, or the duty
of the Plaintiff', in his quality of Consulting Engineer of
the said Company, to furnish the information therein con*

LEGAL PB00EBDINO8.

tained, to the Defendant, (the Oontractor) unless he were
ordered to do so by the Company. It would be necessary
if he were ordered to do so. It was not in witness opinion
part of his (Plaintiff's) duty, as Consulting Engineer of the
Company, to furnish such information to the Contractor.

Croes-Fxamined by Defendant

7. That witness filled no other office than that of Secre-
tary Treasurer of the Company ; and it was no part of his
duty to direct the operations of any of the other officers of
the Company. He performed the general duties of a Secre-
tary. Witness has no personal knowledge as to the officer
or person to whom the Plaintiff first communicated the
papers above referred to ; nor at whose request they were

prepared.

Re- Examined by Plaintiff.

8. That witness may state generally, that all work to
be performed by the Plaintiff, in connection with the road,
was notified to him by witness, as Secretary, by order of
the President, or of the Board.

i -N

See testimony of Mr. A, L. Light j Oovemment Engineer.

9. That the witness has already been examined as a
witness in this cause.

10. That, after examining Plaintiff's Exhibits at Enquete
" A. A." " B, >. -nd " T," the witness states that, with
reference t (nformation therein contained, there
would have ue ovj no impropriety, on the part of the Plain-
tiff, in furnishing the Defendant, in August 1875, with
said information, supposing the Plaintiff had furnished the
same to the Defendant.

plaintiff's EYIDENlCiE IN REBUTTAL.

11. That, as Consulting Engineer of the Company, it
would not have been necessary for the Plaintiff to have
done so (to wit, to hare furnished said information to the
Defendant) without receivng any order to that effect
from the Company.

12. That it was not the duty of the Plaintiff, in his qual-
ity of Consulting Engineer of the Company, and acting
as such, to furnish the Contractor ^^to wit, the Defendant),
at his request, with the information contained in the said
Exhibits.

13. That, upon comparing Clause No. 7 of Plaintiffs
Exhibit " T," with Clause No. 2 of the contract between
the Defendant, and the Provincial Grovernment, both of
which apply to the appointment of Engineers and In-
spectors, (the said clause No. 2 to be found at page 115 of
Plaintiffs Exhibit " O,") witness states that the conditions
contained in the said contract, are more stringent and
binding upon the Contractor, than the terms contained in
said Exhibit * T."

See teatimony of Hon. J. G. Rohertaon.

14. That, in 1875, the witness was Provincial Treasurer,
and a Member of the Government of the Province of
Quebec.

15. That, in July and August of that year, witness is
aware that negotiations were being carried on between
the Government, and the Defendent in this cause, for the
passing of a contract for the construction of the North
Shore Railway, which the Defendant had previously con-
tracted to build with the North Shore Railway Company.

16. That, owing to the proposed relingnishing, by the

tiBOAL ^BOOBBDlNOd.

said Company, of its charter, it became necessary tken id
have a new contract entered into for the construction of
the Road

17. That it was thc^ witness, who represented the Gov-
ernment, in carrying on said negotiations.

18. That witness communicated with the Plaintiff, for
the purpose of obtaining a statement of quantities and
kinds of materials which enter into the construction of a
Railway; and the Plaintiff furnished witness with the
details and information which witness required.

19. That witness addressed the Plaintiff in the matter,
because witness thought Plaintiff had more information
concerning it than any one else.

20. That witness found the information thus procured,
of very great service, as it enabled witness to arrive at
what would be, in witness' opinion, a fair value to offer for
the work.

21. That in so far as it was of use to witness, the in-
formation received by the Plaintiff certainly facilitated
matters, and helped to the execution of the negotiations
which ended in the contract.

22. That witness is under the impression that he received
a document similar to Plaintiff's Exhibit " A. A.'' at En-
quete, pending the negotiations, from the Plaintiff; witness
certainly received the same suggestions in writing from
the Plaintiff.

23. That witness knows that Mr. Light, the then Gov-
ernment Engineer, was absent from Quebec, during a
portion of the time when negotiations were going on re-
specting the Railway ; and when Mr. Light returned to
Quebec, the basis of the contract in question was mostly
completed.

f(!

> rr<

«'»

REVIEW OF THE CASE.

IN BEHALF OF THE PLAINTIFF.

In submitting the follovA'ing Review of the Case, it is
proposed to con^ide^ it with reference to its Equitable, as
well as to its Le^^al aspects.

THE EQUITY OF THE CASE.

In remarking upon this aspect of the Case, it is proper
to consider, first, the relative position of the respective
parties, both previous to, and at the date of the special
Agrt^ement of August 18th 1875, vehich forms the basis of
this suit ; and, second, the position in which the same
parties would necessarily be placed, upon the consumma.
tioii of the contingency which was contemplated, and
evidently intended to be provided for by tlie same Agree-
ment.

It appears that the Plaintiff, who had for many years oc-
cupied a prominent position in his profession, as a Railway
Engineer, was applied to by the representatives of the

BEVISW OF THB 0A8E.

North Shore Railway Oompany, at his office, in New York,
in the year 1871 ; and then and there consulted respecting
the North Shore Railway ; and that soon after that date,
he came to Canada and was engaged as Consulting, and
Acting Chief Engineer upon the said Railway ; both of
which positions he held, at a salary of $10,00(^per annum,
until May 1st 1875, when he resigned the position of
Acting Chief Engineer, and retained that of the Consulting
Engineer of the Railway Company, at the reduced salary
of |5,000 per annum.

It also appears, that after the Plaintiff's resignation as
Chief Engineer, he changed the Sign upon his office door,
to that of " General Consulting Engineer ^ " and thus gave
special, as well as public notice to all persons who either
passed or entered that door, that he was open and prepared
to be consulted, generally/, in relation to any and all matters
pertaining to, or connected with his profession.

The expediency, as well as the propriety of giving such
notice, on the part of the Plaintiff', will become apparent,
when it is considered that, up to May 1st 1875, he had
been receiving from the North Shore Railway Company, a
salary of $10,000 per year, which amount had been mu-
Wlly agreed upon by and between the parties, as repre-
senting a fair and Just Equivalent, for the devotion of the
Plaintiffs entire time and professional services, in the
above dual capacity, to the interests of that Company.
Whereas, after May 1st 1875, the salary of the Plaintiff"
was reduced to $5,000 per year ; which amount was sup-
posed to represent an equivalent for the proportion, say
one half, of the Plaintiff's time and professional services*
<» Consulting Engineer only, which he would be liable, if

, I

-k.

'•1

EQUITY OF THE CASE.

^ \

'■if

so required by the Railway Company, to devote to the
service and interests of that Company. And the Plaintiff
was therefore at full liberty to seek for, and to enter into
other professional engagements, in order to make good
the deficit, of $5,000, in his yearly income.

It also appears, that the Contract which was in force
between the Railway Company and the Defendant,
during the period above referred to, for the Construction
and Equipment of the North Shore Railway, [See Plaintiff's
Exhibits Nos. 23 and 24.) contained a provision by which
the Contractor agreed and undertook to pay " all the
expenses connected with Engineering. " And also a fur-
ther provision, that these expenses, together with those of
the Railway Company, and all other expenses which were
legitimately connected with the Construction and Equip-
ment of the Railway, should he re-paid to the Contractor by
the Railway Company, upon the Monthly or progress Esti-
mates of the Engineer ; which Estimates were to be based
upon a Schedule of Values, for the diflferent items of Ex-
penditure under the Contract, which schedule would ag-
grejjate the total consideration named in the contract, for
the completion of the Railway. But the said contract
contained no provision by which any of the Engineers
named or referred to therein, loere under the control of, or sub-
ject to appointment or dismissal by the Contractor. Neither
is it a fact that any such power or control was ever exer-
cised by the Contractor, under the said Contract.

It also appears, from the said contract, that the Con-
tractor, in part consideration for the performance thereof,
agreed to receive from the said Railway Company, a large
amount, (to wit, several million dollars) of the Bonds or

BBYIEW OF T^ OASB.

debentures of said Ooppany ; upon the sale and proceeds
of which, he relied chiefly for the means to carry on and
complete the work.

It also appears, from the Eesolution adopted by the
Board of Directors on the 11th August 1875, (see Plaintiff's
Exhibit " No. 22 ") that, by reason of the neglect or failure
of the Contractor to negotiate the Bonds above referred to,
and his consequent inability to progress with the construc-
tion of the Bailway, the Railway Company was obliged
to declare its inability " to construct the road under existing
arrangements ; " and also to declare its willingness : " to
allow the Government to deal with the question in any
way they may, in the public interests, think proper ;
making such arrangements with the Contractor as may be
found necessary. "

It also appears that, solely in consequence of the above
failure on the part of the Contractor, and the subsequent
action of the Rajlway Company in relation thereto, the
Provincial Government entered into direct negotiations
with the Contractor, with a view of closing an arrange-
ment for the construction of the Railway, upon a basis
wholly of cash payments therefor, instead of a portion
thereof in the Bonds above referred to. [See Testimony of
Hon. J. G. Robertson.)

It also appears that, pending the above negotiations,
between the Government and the Contractor, " negotia-
tions were kept in abeyance with certain parties, [see testimony
of Hon. Thos. McGreevy,) who, under a previous arrange-
ment between the Plaintiff aiid the Defendant, " proposed
to assume the position then held by the Defendant for the con-
struction of the North Shore Railway ; " (see Plaintiffs Gxhi-

."^^

fiQtJITt OP TSEfi OASfi. d5

bit "L," being McGreevy's Letter of July 22nd iSTS,) and
to complete the same, under the then existing contract
with the Railway Company.

It was, therefore, under the circumstances above nar-
rated, all of which are fully established by the Defendant's
admissions, and the evidence in the case, that the Defen-
dant had communications with the Plaintiff as General
Consulting Engineer^ for his aid and assistance in con-
ducting his negotiations, and in consummating his contract
with the Provincial Government. [See Defendants answers
to Fails el Articles.)

Viewing the case in the light of these circumstances, it
will become quite apparent, that the Plaintiff had every-
thing to lose ; and that the Defendant had everything to gain,
by the proposed arrangement with the Government.

The Plaintiff, owing to the lapse of time, and his entire
devotion to the interests of this Enterprise, had, to a great
extent, severed his professional engagements, and business
relations, in the United States ; and he was therefore
chiefly dependent upon the salary which he received
from the Railway Company, for the support of himself
and family ; which salary would be quite sure to be dis-
continued, and his services dispensed with, (as in fact
they have been) in case the road came under the control
of the Government, who had its own Engineer. "While
on the other hand ; if the road remained under the control
of the Railway Company ; and the parties were brought
forward who stood ready to complete the road under the
original contract, the Plaintiff's salary as Consulting En-
gineer, would not only be secured to him ; but also any
additional advantages which might accrue to him under
his previous agreement with the Defendant.

REVIEW OP THE CASE.

The Defendant had advanced largely from his own
means ; and, by roason of his failure to negotiate the se-
curities of the Company, he had nearly or quite exhausted
both his means and credit,' in his efforts to carry on the
work under the original contract ; and he would there-
fore soon be compelled, either to abandon the work en-
tirely, and thus lose the money which he had invested in it ;
or to close an arrangement with the parties refeiTed to in
his letter of 22nd July, by which arrangement these par-
ties would, as stated in this letter, assume the position then
held by the Defendant for the construction of the North
Shore Railway ^ and re-pay to the Defendant the amount of
his previous advances in connection with, the Contract.
"While, on the other hand, if a favorable contract could be
negotiated with the Provincial Government, the Defen-
dant would not only secure the prompt re-payment of all
past expenditures ; but he would also secure the prospect
of / rg-e future profits in connection with his contract;
together with all the advantages growing out of the sub-
stitution, as the second parties thereto, of a responsible Gov-
ernment^ in lieu of an irresponsible Railway Company.

These prospective advantages had already induced the De-
fendant to defer the closing of the proposed arrangement
with the parties referred to in his letter to the Plaintiff of
22nd July 1875 ; and the same considerations now in-
duced him to make it for the interest of the Plaintiff, not
only to aid the Defendant, in holding " these parties in
abeyance^ " until the result of his negotiations with the
Government could be determined ; but also to aid a:id
assist the Defendant in bringing these negotiations to a
speedy and s .tisfactory conclusion. Or, to use the words

<! 1 A

EQUITY OP THE CASE.

I ♦

dlf^-

of the Defendant, " in order that there should be no delays ;
knowing that the Plaintiff had the means in his power of keep-
ing it back." [See admissions by Defendant^ clause 14.)

An arrangement was therefore entered into, between
the Defendant and the Plaintiff, by which it was pro-
posed, upon the consummation of the contract with the
Government, that the Plaintiff should be secured the
sum of $15,000 ; this being the precise amount of three years
salary as Consulting Engineer, during the probable period
of the construction of the Road.

The following is a copy of the Agreement referred to,
and upon which the present action is based :

" Quebec, ISth August, 1876,

Dear Sir : In consideration for your extra services, I hereby

agree, that if I close an arrangement wilh the Provincial Go*
vernment of Quebec, by which the Goverwmemf. either takes the

North Shore Railway contract off my hands, or pays me a cash

consideration for performing the contract, I will pay you five

thousand dollars upon the closing of such an arrangement ; also

five thousand dollars additional, within one year from that
date ; and five thousand dollars additional, within two years

from that date ; making in all fifteen thousand dollars.

Yours truly,

(Signed,; Tnos. Mc^ . eevt.
General Seymour,

Consulting Engineer, Sfc, Sfc, Quebec. "

It also appears, from the evidence in the case, that the

Plaintiff not only refrained from using " the means, {which

the Defendant knew he had,) of keeping the negoiiations back,"

■ but that he olso furnished information that was o£ very great

service ; and ceTtBinly facilitated matter a, and helped to the

REVlE'Vtr Ot TfitE CASE.

execution of the negotiations which ended in the Contract.
{See testimony of Hon. J. G, Robertson^ late Provincial Treas-
urer.)

When all the facts and circumstances above referred i/o^
and connected with the case, are duly considered, it is
respectfully submitted, that the consideration mentioned
in the above Agreement, provides for no more than a fair
and equitable compensation to the Plaintiff, for the posi-
tion which he sacrificed, and the " extra service^ " which he
rendered in connection with these negotiations; while,
at the same time, the amount named in the Agreement,
was not only a direct charge and obligation upon the De-
fendant, under his former contract with the Railway Com-
pany, from the payment of which he would, in all proba-
bility, be released if his present Agreement with the Plain- ^
tiff should become effective ; but it bears no comparison
to the other, and for greater benefits and advantages
which were then expected to be, and were actually de-
rived by the Defendant, by reason of his subsequent con-
tract with the Provincial Government ; all of which were
the direct results of said Agreement. And, therefore it
appears that the Equity of the Case is clearly in favor
of the Plaintiff.

LEGAL ASPECT OF THE CASE. *

The Deferidant has admitted, that he signed the Agree-
ment, dated 18th August 1875, upon which this action is
based ; and also, that the " Arrangement with the Provincial
Government of Quebec, " which is referred to in, and made a
condition of said Agreement, was duly closed on 24th De-
cember 18*75. [See admissions by Defendant, clauses 3, 4,
and 6.)

In remarking upon the legal aspect of the case, it is there-
fore proposed, in the first instance^ to consider more espe-
cially, the precise language and terms of the Agreement in
question : and afterwards to consider the questions at issue,
between the parties, in relation thereto, in connection
with the testimony which has been adduced in the case.

The language and terms of the Agreement.

Referving particulary to the full copy of the Agreement
in i£a.G& ticn, as given on a previous page, it would cer-
tain y api ear, that, if the precise language and terms
ther.iof are intended, by the parties thereto, to mean any-
thing, they amount to a full and unqualified admission,
on the part of the Defendant; 1st. That he, the Defendant,
was indebted to the Plaintifi*, " in consideration for his (the
PI lintiflfs) Extra Services,'' in the sum of ''fifteen thousand
dolU^'rz,'' I id 2nd, That he, the Defendant, agrees to pay
this amounl to the Plaintiff, in such instalmeniip, and at
such times as are specified in 3aid Agreement, upon the sole
condition that he, the Defendant, " closes an arrangement

REVIEW OP THE CASE.

with the Provincial Government of Quebec, by which the Go-
vernment either takes the North Shore Railway contract off my
[the Defendant's) hands ; or pays me [the Defendant) a cash
consideration for performing the Contract. "

The Agreement in question does not state, or even inti-
mate, whether the " Extra Services, " therein referred to,
had already been rendered by the Plaintiff ; or whether it
was expected that he would render these services, subse-
quent to the date of the Agreement or even whether
these services had any relation to, or coi sion with the
" closing of the arrangement with the Provmcial Govern-
ment" therein referred to; neither does the Agreement
impose any condition, restriction, or other obligation
whatsoever upon the Plaintiff, either in relation to the said
" Arrangement with the Government ; " or in relation to the
payment of the amount therein specified, and agreed to be
paid by the Defendant.

The term : " In consideration for your Extra Services, I
hereby agree, " as used in the Agreement in question, is
exactly synonymous with the term : " For value received,
I promise to pay, " as ordinarily used in promissory notes.
And it therefore appears quite evident that, if the * arrange-
ment with the Government, " referred to in the Agree-
ment, had been consummated by the Defendant, either
previous to, or at the date of the Agreement ; or, if the date
or time of closing the said " Arrangement with the Go-
vernment " could ha-v e been definitely foreseen and de-
termined by the parties, at the date of the Agreement;
then, and in either of these events, the usual form of pro-
missory notes, signed by the Defendant, and made payable
at the dates, and for the respective amounts indicated in

LEGAL ASPECT OF THE CASE.

. f

the Agreement, would undoubtedly have been adopted by
the parties, instead of the form which was actually and
necessarily adopted in the Agreement, by reason of the un-
certainty as to the time when the arrangement between
the Defendant and the Government, therein referred to,
would be closed.

It is therefore respectfully submitted, that Prima facie,
and in view of the above facts and considcTations alone,
the legality of the Plaintiff's claim against the Defendant,
under the said Agreement of 18th August 1875, is clearly
established.

The questions at iss-ue^ and the Testimony,

A careful analysis of the Plaintiff's Declaration, and the
Defendant's Answer in this case, will show, that the Plain-
tiff distinctly alleges, that the " Extra Services, " named
and referred to in said Agreement, are the services which
he, the Plaintiff, in his capacity of " General Consulting En-
gineer, " rendered to the Defendant, in connection with -
the negotiations which resulted in a contract between the
Defendant, and the Provincial Government, for the con-
struction of the North Shore Railway, upon the basis of a
cash consideration. And also, that it is entirely " in con-
sidf^ration for these extra services" thai the Defendant is in-
debted to him, the Plaintiff, for the amount named in said
Agreement.

It will also be seen, that the Defendant denies that the
Plfintiff rendered any such services; but alleges on the
contrary, that the Plaintiff endeavoured to defeat the object
of said negotiations. The Defendant also alleges, that the
Plaintiff, being the salaried officer of the North Shore Bail-

BBYIE\tr OF THE CASE.

way Company, at the time, must have rendered such ser-
vices, if they were rendered, in behalf of the said Com-
pany, and not for the Defendant ; Also, that, by reason of
the I A^intiff's holding such office under the Railway Com-
pany, he was disqualified and prevented from rendering the
Defendant any services in connection with said Railway ;
Also, that hy fraud and pretence^ the Plaintiff has already
received from the Defendant certain sums of money,
which should be allowed as an off-set to the Plaintiff's
claim.

The Defendant having, as before stated, admitted the
execution and genuineness of the Agreement, upon which
this action is based ; Also the fact, tht^t the arrangement
with the Provincial Grovernment, therein referred to
was closed on the 24th December 1875. And the Defen-
dant having also admitted, that during the negotiations
which resulted in said arrangement, or contract, he, the
Defendant, had communication, on several occasions, with
the Plaintiff, as " General Consulting Engineer ^ " [See ad-
missions I J Defendant, clause 5,) in relation thereto; it
therefore appears that the only real questions at issue be-
tween the parties, are the following :

1st. Was the legal Status of the respective parties to this
suit, in their relations to and with each other, on the 18th
day of August 1875, such as to justify the Plaintiff in ren-
dering the " Extra Services" mentioned in the Agreement
of that date, which forms the basis of the present action ;
and also such as to justify the Defendant in signing said
Agreement, and thereby placing himself under obliga-
tions to pay to the Plaintiff a specific consideration for the
peiformance of such " Extra Services ? "

LEGAL ASPEOT OF THE CASE.

'2nd. Were the " Extra Services " mentioned in the said
Agreement, of 18th Angnst 1876, actually performed by
the Plaintiff, in behalf of the Defendant, either before, at
the time of, or subsequent to the date of the said Agree-
ment?

3rd. Are the respective sums, named in the Defendant's
Answer in this cause, as having been paid by him to the
Plaintiff, entitled to be regarded as a just and legal set-off to
the Plaintiff's claim against the Defendant, in this action.

Having thus reduced the case to the above three distinct
propositions^ it is proposed to refer to the testimony ad-
duced in this case, in the order of its application, or refer-
ence to the foregoing propositions.

let. As to the legal Status of the Parties.

It appears to have been well established from the testi-
mony, that, prior to May 1st 1876, the Plaintiff had been
the Acting Chief Engineer of the Railway Company, and
that at the date of the Agreement, the Plaintiff occupied
the position of the Consulting Engineer of the said Company ;
and that as such Consulting Engineer he was receiving
from the Company, a salary of five thousand dollars per
annum ; which salary, according to the terms of the then
existing Contract, was provided to be, and actually was
in the first instance, advanced to the Railway Company
by the Contractor ; and afterwards refunded to him, in
Monthly estimates, as per Schedule. {See Testimony for
Defence, clauses 12 4* 14. Also Paintiff^s Evidence in Re-
butlal, clause 6. Also Plaintiff's Exhibits ''2B,'' Sf "24"
at Enquete.)

It also appears that, at the same date, the Plaintiff oc-

*v»

BEVISW OF THE CASE.

cupied an ojQice for business purposes, in the City of Que-
bec, upon the entrance door to which was affixed the
Sign, " General Consulting Engineer" {See admissions by
Defendant^ clause 22. AJso Facts proven by Plaintiffs clause 4.)
It appears to have been equally well established from
the testimony, and the admissions of the Defendant, that
at the date of the Agreement, the Defendant was the Con-
tractor for the construction of the North Shore Railway^ under
the said Railway Company ; Also, that, at the same date,
the Defendant was engaged in negotiations with the Pro-
vincial Grovernment of Quebec, with a view of obtaining
a contract for building the North Shore Eailway, on the
basis of a cash consideration. [See admissions by Defendant
clauses 1 4* 2-)

It also appears that, about a week previous to the date
of said Agreement ; to wit, on the 11th of August, 1875,
the North iShore Railway Company adopted a Resolution,
«' declaring the inability of the Company to construct tfie Road
under existing Arrangements; and that the Company are
therefore ready to allow the Government to deal with the
question in any way they may in the public interests think
proper, making such arrangements with the Contractor as
may be found necessary. " Also* that, after the passage of
said Resolution, the said Railway Company did not take
" any step or action whatever with respect to the construction
of the said Road ; everything was at a stand-still, waiting
for the action of the Government. " (See Plaintiff^ s evidence
in rebuttal^ clauses 4 4* 6. Also Exhibit No. 22.)

It also appears that, previous to the date of said Agree-
ment, and during all said negotiations between the Defen-
dant and the Provincial Government, the Defendant had

^.'^

l4EaAL ASPECT OF THE CASE.

fommuni cations with the Plaintiff as General Consulting JEn-
gineer, concerning documents which the Plaintiff rrtated
that the Treasurer of the Province had put into the Plain-
tiff's hands, to prepare a contract with the Government,
and assist the Treasurer in making a contract. (^S^e ad'
missions by Defendant^ clause 5.)

It also appears that the Defendant was very desirous that
the preparation of the Contract, Schedules, and Estimates
should be put through as soon as possible, and that there
should be no delays ; also, that during these interviews, (to
wit, with the Plaintiff as General Consulting Engineer) the
Defendant signed an Agreement with the Plaintiff, upon
which this action is based, " in order that that there should
be no delays ; knowing that the Plaintiff had the means in his
power of keeping it back ; " also that the Defendant " would
not have signed said Agreement, under any other circum-
stances. " [See admissions by Defendant^ clauses 13 & 14.)

It also appears, that the said negotiations between the
Defendant and the Government, were initiated and carried
on, for the reason that, owing to the proposed relinquishing
by the Railway Company of its Charter, it became necessary
to have a new contract entered into for the construction
of the Road. [See Plaintiff'' s evidence in rebuttal, clause 16.)

It also appears that, previous to the date of said Agree-
ment, the Defendant was desirous of obtaining respon-
sible parties to advance the means in carrying out his ori-
ginal Contract with the Railway Company ; and that the
Defendant entered into arrnngements with the Plainti^to
that effect; also, that the Defendant was av/are that th^
Plaintiff had procured parties who were willing to assume
an interest in said contract; also, that the Defendant had

BBYIEW OF THE OASB.

met said parties with the Plaintiff : and had also commu-
nicated with said parties, through the Plaintiff, in writing,
with a view of closing an arrangement ; also that negotia-
tions with said parties were kept in abeyance, during the
Defendants pending negotiations with the Government.
[See admissions by Defendant, clauses 10 4* 21. Also Plaintiffs
Exhibit " L " at Enquete.)

Having thus stated, with some particularity the res-
pective positions occupied by each party ; together with
the relations which existed between them ; and the cir-
cumstances which surrounded the North Shore Kailway,
at the date of the Agreement in question ; it remains to
consider, whether there was anything in these relations
which rendered it unjust and illegal, for the parties to enter
into this Agreement ; or that should present any bar to
its enforcement.

It is well undfer stood, both in and out of the Engineering
Profession, that the duties pertaining to the office or posi-
tion of a Consulting Engineer, are, as the term clearly
indicates, and as is equally w^ell understood when the
terms Counsel and Consulting are applied to other Pro-
fessions, entirely of an advisory, and not of an executive
nature ; and it is also understood, that the services of a
Consulting Engineer are due only to, or in the interest of
the party by whom he is appointed ; and that these ser-
vices are due, even to this party, only when the Consulting
Engineer is regularly and officially called upon for counsel
and advice respecting matters which are legitimately con-
nected with his profession, and in which the party by
whom he is appointed has a direct interest.

It does not appear from the evidence, that the Railway

LEGAL ASPECT OF THE 0A8E.

Company ever called upon, or required the Plaintiff to
render any service, or to take any part in connection
with the negotiations between the Defendant end the Gov-
ernment; or, that either the Defendant or the Govern-
ment ever requested the Railway Company to require the
Plaintiff to furnish any information, or to render any ser-
vice in connection therewith. On the contrary, it does
appear from the evidence, that, " after the 11th August,
1876, the Railway Company took no step or action what-
ever with respect to the construction of the Road. " {See
Plaintiff's evidence in rebuttal, clavse 6.)

Such having been the Professional, and consequently
the Legal Status of the Plaintiff, in his official relations
with the Railway Company, at the date of the Agreement
in question ; therefore, in the absence of any request or
instructions from the Railway Company, respecting the
pending negotiations between the Defendant and the
Provincial Government; and with a full knowledge of
the fact that the Company had no interest, and was taking
no part whatever in these negotiations, it appears quite
evident that the Plaintiff was at full liberty, either io
remain entirely passive and neutral in respect of these
negotiations ; or to take such action in relation to them as
would be best calculated to promote his own interests
particularly so long as such action could by no possibility
prove contrary to the wishes, or derogatory to the interests
of the Railway Company, whose w'^hes and interests
alone, either in this or any other matter connected with
the Railway, he was justly bound to look after and pro-
tect, so long as he remained the Consulting Engineer of
the Railway Company.

BSYIEW OF THE OASE.

It is therefore quite clear, from the premises, that what-
ever action the Plaintiff might conclude to take, in respect
•of the negotiations in question, must of necessity be en-
tirely outside of, and disconnected from the duties and
services pertaining to his official position as the Consulting
Engineer of the Railway Company ; and consequently that
such services, if rendered in behalf of either of the parties
to the negotiations in question, would very properly be
regarded as " Extra Services"

It has been shown in the preceding remarks upon the
" Equity of the case" " that the Plaintiff had everything
to lose ; and that the Defendant had everything to gain by
the proposed arrangement with the Government;" for the
reason that, by its consummation, the Plaintiff would be
quite sure to be deprived of his salary of $5,000 per year,
as the Consulting Engineer of the Company, during the
three years that would probably be required to complete
the Railway; while, on the other hand, the Defendant
would not only be released from the further payment of
this salary, and repaid for all his past expenditures
under his original contract ; but he would also secure the
prospect of large future profits in connection with his
proposed contract with the Provincial Grovernment.

The Plaintiff had been the Acting Chief Engineer of the
Railway, during several years previous to May 1st 1 875 ;
and had, during that time, acquired a thorough knowledge
of the details and cost of the different works ; which know-
ledge, although it had been acquired previously to the
time of the negotiations in question, and not in the Plain-
tiff^s Capacity of Consulting Engineer^ was likely to prove
of very great service to the Defendant, in facilitating his
negotiations with the Government.

LEGAL ASPECT OF THE 0A8E.

The member of the Government who was conducting
the negotiations with ihe Defendant, had applied to the
Plaintiff for a statement of quantities and kinds of materials
which enter into the construction of a Railway, " becaustt
(to use his own words) he thought the Plaintiff had more
information concerning the matter than any one else ;" not, it
will be observed, because ihe Plaintifl' was, at the time, the
Consulting Engineer of the Railway Company ; but evi-
dently because it was within the knowledge of the mem-
ber of the Government, that the Plaintiff had acquired the
information sought for, during his long experience as the
Chief Engineer of the Road.

The Defendant was told by the Plaintiff, that the Treas-
urer of the Province had called on him (the Plaintiff) to
assist him (the Treasurer) in preparing the draft of Con-
tract, Schedules and Estimates ; and the Defendant, being
very desirous that the thing should be put through as
soon as possible, and that there should be no delay,
signed an Agreement with the Plaintiff, upon which this
action is based, in order that there should be no delays ;
knowing that the Plaintiff had the means in his power of
keeping it back, {see admissions by Defendant^ clauses 12, 13
and 14) ; "Which Agreement, as will be seen, provides
only for an amount equal to a continuation of the Plain-
tiff's salary of $6,000 per year, for a term of three years ;
and thus secures, or was evidently intended to secure the
Plaintiff against this loss of income, which otherwise
appeared to be inevitable, in the event of a successful ter-
mination of the pending negotiations between the Defen-
dant and the Government.
If injustice was done by the Plaintiff to the Railway

BEYIBW OF THE OASE.

Company, by reason of the above Agreement, it would
appear that the Company itself would have been the
proper party to call him to account therefor, rather than
the party in whose favor or interest the Plaintiff is alleged
to have committed such act of injustice ; particularly
when it is considered that the ntHcial relations which the
Plaintiff sustained towards the Railway Company, were
well understood by the Defendant, when he signed the
Agreement ; notwithstanding which, he did not scruple
to avail himself of the benefits of the Plaintiff's Extra
Services, in connection with his negotiations, and sub-
sequent Contract with the Government.

Referring to the allegations contained in the Defendant ^
A.nswer, to the effect, that the services in question were
tuch as pertained to the Plaintiff's Official position as the
salaried officer of the Railway Company ; and also, that
by continuing to hold said office, the Plaintift was disqual-
ified from rendering the Defendant any services in connec-
tion with said Railway, it will be seen from the testimony,
given by experienced members of the Fngineering pro-
fession, that the Defendant had no claim upon the Plaintiff,
for services of this nature, in his capacity of the Con-
sulting Engineer of the Railway Company ; and also, that
there was no impropriety in his rendering such services to
the Defendant, even in his official capacity, in case he
voluntarily inclined to dc so. {See testimony for Defence,
clause 28; also Plaintiff^ s evidence in rebuttal, clauses 10, 11
and 12.) From which it will appear, that, taking the
Defendant upon his own assumed ground, there could
have been nothing unjust or illegal in the transaction.

When it is considered that the Railway Company, whose

LEGAL ASPECT OF THE CASE.

4s'

" salaried officer " and nominal servant, the Plaintiff was, at
the date of the Agreement in question, had become practi-
cally effete ; and that it was taking no part or interest
whatever, either " in the construction of said Eoad," or in ^^he
pending negotiations between the Defendant and the Go-
vernment ; and when it is farther considered, that the ser-
vices referred to in said Agreement, were sought for and
requireci by the Defendant, to use his own words : " In
order that there should be no delays ; knowing that the Plain-
tiff had the means in his power of keeping it back" ; also that
the Agreement would not have been signed by the Defen-
dant " uTider any other circumstances " ; it will become
quite clear, that the term " Extra services" as used in said
Agreement, was understood by the parties, as referring to
certain services of an extraordinary nature, that were quite
independant, distinct, and separate from the Plaintiff's or.
dinary services as the Consulting Engineer of the Railway
Company. Or, in other words, that the Plaintiff was ex-
pected to lose no time in preparing and furnishing the
officer of the Government, with whom the Defendant was
then engaged in carrying on his negotiations, with such
crc^ra informatior , aM, and assistance, as the said officer re.
quired for the purpoie of carrying on these negotiations in-
telligently ; and also " in preparing the draft of Contract^
Schedules and Estimates " ; all of which was to be done
" in order that there should be no delays."

Therefore, in view of all the facts and considerations
connected with the case, it is respectfully submitted,' tha
the services referred to in said Ap^reement, were not con-
templated or required to be rendered, by the Plaintiff, for
or in behalf of the Railway Company. And also, that there

BETIEW OF THK CASE.

was nothing contemplated by, or connected therewith,
that should prevent the legal consummation, by the parties
thereto, of the Agreement dated August 18th 1875.

2d, As to the Extra Services rendered.

Inasmuch as the nature and extent of the services
contemplated to be rendered by the Plaintiff, under and
by virtue of the Agreement in question, have been fully
discussed vn the preceding article, it will be unnecessary
to renew the discussion here, turther than to state generally,
that, according to the allegations of the Plaintiff, and the
admissions of the Defendant, these services were to consist
on the part of the Plaintiff, in the furnishing of information^
and otherwise rendering aid and assistance to the Defendant,
and to the Provincial Government, that would be the means
of facilitating the negotiations then pending between the
parties ; and also of hastening the final consummation of a
contract between them, for the construction of the North Shore
liailway.

With reference to the performance of the above ser-
vices on the part of the Plaintiff, it appears from the
testimony, that, immediately after the signing of the said
Agreement, the Defendant explained to the Plaintiff, that
there was a difference of a large amount, say four hundred
and fifty thousand dollars, (the Defendant cannot state the
exact amount) between the Defendant and the Government,
respecting the consideration for the Main Line alone ; also
that this difference was harmonized, by the terms of the
contract being agreed upon, and ready, about the last days
of August ; (to wit, within a few days after the signing of
the Defendant's Agreement with the Plaintiff, of August

]

r% n

LEGAL AAPBCT OF THE CASE.

> K

I* 'V

18, 1875) ; also, that the Plaintiff prepared the draft of a
contract to be executed by the parties {See admissions by
Defendant^ clauses 15, 17 and 18.)

It also appears that the Plaintiff prepared and placed
at the disposal of the Government, and the Defendant,
certain important documents ; to wit, " Points to he con-
sidered in adjusting the existing contract to a cash basis ;"
" Remarks upon the form of contract^ Sfc." " A statement of
quantities and materials ;" together with " Schedules of rela-
tive cash values, ^c." {See Facts proven by Plaintiff, clauses
6 and 11 ; also Plaintiffs Evidence in rebuttal^ clauses 18 and
22 ; also testimony for Defence, clauses 4 and 6. Also Plain-
tiff's Exhibits at Enquete " A. Ar '' B. Br and « T.")

It also appears, that the above information and docu-
ments were found to be " of very great service "; and that
th^y " certainly facilitated matters, and helped to the execution
of the negotiations which ended in the contract ^ {See Plain-
tiff's Evidence in rebuttal, clauses 20 and 21.)

It also appears, that much of the language, and many
of the entire paragraphs, which were embodied in the
documents so furnished by the Plaintiff, were subse-
quently embodied in the contract between the Defendant
and the Government ; also that many of these clauses and
provisions, were exceedingly favorable to the Defendant.
{See Facts proven by Plaintiff, clauses 11 and 12 ; also
" Memorandum, showing the identity or similarity of certain
paragraphs, t^c")

It also appears, by reference to " clause 7," of Plaintiff's
Exhibit " T," that the Plaintiff suggested a provision to be
embodied in said contract, which would have been much
less stringent and binding upon the Contractor, than the

BEVIBW OF THE CASE.

provision, with reference to the same matter, which was
subsequently embodied in the contract, in clause 2, at
page 116, of Plaintiff's Exhibit " O." {See Plaintiff's
Evidence in rebuttal, clause 13.)

Also, that two important provisions, which were con-
tained in the original draft of suid contract, and which
would have been very detrimental to the Defendant's
interests, were recommended to be stricken out, by the
Plaintiff; and were so stricken out, and not embodied in
the contract, as finally executed. {See Plaintiff's Exhibit
" T." clauses 4 and 12, and compare with Existing Contract.)

It also appears that said contract was ready, about the
last days of August, 1875 ; but that owing solely to the
delay of the Government, it was not signed until the fol-
lowing 24th of September. {See Admissions by Defendant,
clause 17.)

It also appears, that previous to the signing of the
said contract by the Defendant, (to wit on the 23rd of
September, 1875) the Plaintiff, by letter, called the partic-
ular attention of the Defendant to the absence of a most
important provision in said contract ; which omission was
duly provided for " at the last moment " before the execution
of the contract, when a " cash consideration was substituted
by the Government, in lieu of the $125,000 subscribed by
the Municipalities ;" referred to in the said letter. {See
Admissions by Defeniant, clauses 9 and 19 ; also Plaintiff s
Exhibit at Enquete " A.")

It also appears that, several months subsequent to the
negotiations, and the execution of Ihe contract between
the Defendant and the Provincial Government, and also
of the approval of said 'contract by the Provincial Legis-

iT^^^

tiEOAL ASPECT OF THE OASE.

latnre, (to wit, during the months of Febrnaiy, April and
May lfc75,) the Defendant, without protest, or notice to the
Plaintiflf of his objection thereto, made certain promises
and payments to the Plaintiif, on account, (as alleged by
the Defendant, in his Answer in this cause) of the consider,
ation named and provided for in said Agreement, of
August 18th 1875; which promises and payments, were
accompanied by written and verbal assurances, on the part
of the Defendant, that further payments would be made on
account thereof, at some future day ; to wit : that, near the
Montreal Bank, last February, the Dtfendant stated verbally
to the Plaintiff, that he intended to call on Plaintiff, and give
him a sum of money, in consideration oj the agreement made
with the Plaintiff. (See admissions by Defendant, clause 20.)
Also, that on April 1 7th 1875, the Defendant wrote to
Plaintiff, as follows : *' / will call and see you without fail tO'
morrow^ Also, that on May 1st 1875, he wrote to Plaintifi
again, as follows : " / was unabU to finish your matter to-
day ; but will not fail to do so on W^'^nesday, on my rt turn. 1
would have sent you the notes, but thought it no use without
the cash.'' Also, that on May 4th 1875, he wrote to Plaintiff
again, as follows : " I enclose you two notes for itvelv and
fifty dollars each, at three and four months, which is all I can
do at present at least for a feta days, until I get some money y
iSee Plaintiffs Exhibits of said letters.) Thereby admitting,
within one month before the commencement of this suit, and
several months after the consummation of the arrangement
with the Provincial Government, referred to in said Agree-
ment, not only the Defendant's high appreciation of
the services rendered by the Plaintiff; but also his obli-
gation to pay to the Plaintiff, the full amount of the
consideration specified in said Agreement.

BEVIEW OF THE OASE.

If there had been the least foundation for the allega-
tions contained in the Defendant's Answer ; to the effect,
that the Plaintiff's services were performed in behalf of
the Railway Company^ and not for the Defendant ; or, that
he had acted adversely to the Defendants interests ; or, that
he had used, fraud and deceit, in obtaining the above
payments from the Defendant ; a sufficient time had cer-
tainly elapsed, previous to said payments, and the com-
mencement of this suit, to have enabled the Defendant
to make good these allegations; but it appears that no
evidence whatever has been adduced by him, in relation
to these matters ; and they therefore necessarily fall to the
ground, at least so far as this suit is concerned.

In view, therefore, of all the foregoing facts and cir-
cumstances connected with the case, it appears quite evi-
dent that the Plaintiff, in good faith, performed, not only
the Extra services, referred to in the said Agreement of
August 18, 1875, in consideration for which, the Defendant
agreed to make certain payments, as therein specified ; —
but that the Plaintiff also performed other important services,
in connection therewith, which enured greatly to the
profit and advantage of the Defendant.

3(7. As to the payments already made.

The Defendant, in his Answer, alleges that he, the De-
fendant, paid the sum of two hundred dollars to J. Gr.
Colston, Esq., Advocate, at the request and upon the written
order of the Plaintiff.

He ilso alleges, that the Plaintiff, through fraud and de-
ceit, obtained from him his, the Defendant's, two negoti-
able notes for the sum of twelve hundred dollars each ;

LEGAL ASPECT OF THE CASE.

but he produces no evidence to establish either of the
above allegations.

The only evidence in the case, which seems to bear
upon this question, are the Plaintiff's exhibits at enquete
" F." " a." and " H." being letters addressed by the Plain-
tiff to the Defendant, under the respective dates of May,
2nd, May 4th and May 6th, 1875 ; in the first of which the
Plaintiff states to the Defendant, the terms by which the
Agreement of August 18, 1875 may be paid and cancelled,
to wit: " The payment of $2,300 cash, and the Defendant's
note at sixty days for $1,250, and another for the same
amount at ninety days ; which, with the $200 paid to Mr.
Colston, will close up the first instalment o/" $5,000, due on the
24//t December last ; also for the other instalments of $5,000
each, the Defendant's four notes of $2,500 each, payable
respectively Jan. 1, 1877, July 1, 1877, Jan. 1, 1878, and
July 1, 1878 ; all of which notes to be made payable to the
Defendant's order." In the second of these letters, the
Plaintiff acknowledges to have received from the Defen-
dant two notes, similar to those described in the Defendant's
allegation. And in the third letter, after referring again to
the receipt of the same two notes ; and staling that he, the
Plaintiff, was quite at a loss to understand the Defendants mo-
tive for sending the notes, the Plaintiff makes the following
statements respecting the two notes, and also the amount
alleged to have been paid to Mr. Colston ; together with a
full statement of his account with the Defendant, at that
date.

" Upon consulting with my Attorney, however, the same
evening; and looking over our previous correspondence
respecting my claims againrt you, as per your Agreements

6S REVIEW OF THE CASE.

dated June 21, 1875, and August 18, 1875, reepectiyely, it
became quite apparent that you intended me to apply the
proceeds of the notes in part payment of the amounts, long
past due upon these Agreements ; and I therefore took the
liberty, on the following morning, of placing the notes in
the hands of a Notary, for sale, upon the best possible
terms.

" The Notary has just returned me an account of sales,
from which it appears that the net proceeds of the notes
amount to $2,150.

" The account between us, a« per the Agreements above
referred to, exclusive of interest, will therefore now stand
as follows :

Per Agreement dated June 21, 1875.

" Amount of bonus due Sept. 24, 1875 $5,000

Balance of salary due monthly from May 1st 1875
to May 1st, 1876 $5,000

Total $10,000

Per Agreement dated August 18, 1875.

Amount of first instalment, due Dec. 24, 1875 $5,000

Total amount $15,000

Deduct amount paid Mr. Colston, April 22,

1876 $200

Deduct proceeds of two notes received

May 4, 1876 $2,150 $2,850

Balance due upon both Agreements... $12,650

" You wonld therefore oblige me by informing me, at

LEGAL ASPECT OF THE CASE.

yoar earliest convenience, as to which of these respective
Agreements, you desire, or intended to have me credit the
payments which you have already made on their account ;
so that the amount due under each Agreement may be
distinctly underutood."

Inasmuch as the Defendant had not furnished the
Plaintiff with the information asked for in the above letter,
previous to the commencement of the present action ; and
as he has produced no evidence upon the subject, it is
therefore respectfully submitted, that it was evidently the
Defendant's "aiention, that the payments therein referred
to, should be credited to the portion of the account therein
rendered, which had been longest due to the Plaintiff, to
wit, under the Agreement therein referred to, of June 21;
1875.

With reference to the amount of *' Salary as Consullirg
Engineer i " which the Plaintiff is alleged to have receiT ed,
between the 1st November and 1st May last, " of the
money of the Defendant, paid to him by the Government
of this Province " etc., it is sufficient to state ; first, that
the same provision is contained in the Government con-
tract, with reference to the payment, by the Contractor, of
^^ All Engineering Expenses.^^ (except those of the Govern-
ment Engineer) ; and his subsequent re-imbursal through
the monthly estimates, as was contained in the original con-
tract. [See clause 11, page 111, of Plaintiff's Exhibit " O.") ;
and, second, that any salary so received by the Plaintiff,
must have been acknowledged, by the Railway Commis-
sioners, as being justly due the Plaintiff, from the North
Shore Railway Company, on account of his regular services
as the Consulting Engineer of said Company, during the

BBVIEW OF THE CASE.

then current year of his engagement as such ; and that the
amount was therefore payable by the Contractor (the De-
fendant) under his contract with the Government : (See
Plaintiff's Exhibit " O"— clause 21, page 119.)

Attention is also called, in this connection, to the alle-
gation contained in the latter portion of the " Defendant's

Answer" to the eflfect, that the Plaintiff was not entitled to,
and did not earn his salary as Consulting Engineer, be-
tween 1st Nov., 1876 and 1st May, 1876, "inasmuch as the
said Plaintiff did not render the said Defendant any services,
and was not in his employ during the said time " ; from
which it appears that this portion of the Defendant's
Answer is in direct contradiction to the theory advanced
by him in a previous allegation contained in the same
Answer : where the Defendant alleges, in substance, that
the Plaintiff was disqualijied from rendering the Defendant
any services, by reason of his being the salaried officer of
the Railway Company.

It becomes quite evident, therefore, that this alleged
payment to the Plaintiff, on account of salary for his re-
gular services as the Consulting Engineer of the Railway
Company, of which however there is no proof, has no re-
ference to, or connection whatever with, the " Extra Ser-
vices " rendered, or to be rendered to the Defendant, under
and by virtue of the Agreement of August 18th, 1875.

In view of all the f:icts in the case, it is therefore respect-
fully submiHed, that the Defendant has no just and legal
off-set to the demand of the Plaintiff, as contained in his,
the Plaintiff's Declaration in this case.

CONCLUSION.

•«■

It appears, from the foregoing review of the case, that
the following facts in relation thereto, have been clearly
established :

1st. That the Equity of the case is clearly in favor of the
Plaintiff.

2nd. That, by the language and terms of the Agreement of
August 18th 1875, the Legal aspect of the case is prima facte
in favor of the Plaintiff.

8rd. That the legal status of the Plaintiff, in his relations
to and with the Railway Company, and the Defendanti
were such as to justify him fully in rendering the " Extra
services " referred to in said Agreement, and in receiving a
specific consideration therefor.

4th. That these Extra Services were not only promptly,
and in good faith, performed by the Plaintiff, in behalf of
the Defendant ; but he also performed oiber services in
connection therewith, Tvhich enured greatly to the profit
and advantage of the Defendant.

5th. That the payments alleged to have been made by
the Defendant to the Plaintiff, do not appear to have been
intended by the Defendant, nor acknowledged by the
Plaintiff, as applying to the consideration specified in the
Agreement of August 18th 1875. And therefore these
payments cannot justly be regarded as a legal set-off in •
this action.

6th. That every allegation contained in the PUantiff's
Declaration, has been/wWy corroborated by the admisH'*i* of
the Defendant, and the testimony in the case ; while' not a

REVIEW OF THE CASE.

iingle allegation contained in the Dofendant'y Answer, is
sustained by the evidence, except the one which charges
the Plaintiff with having been the •' Salaried Officer of the
North Shore Railway Company," which fact is freely
admitted by the Plaintitf ; and must have been well
known to the Defendant, both at the time of signing the
Agreement in question, and during all the time when he
was receiving the full benefits of the arrangement therein
provided for.

7th. That the Defendant, having alleged, that the Plaintiflf
acted adversely to, and opposed the Defendant's interests,
wishes, and desires in the matter ; and also that the Plaintiff
obtained the Defendant's money and tiotes by means of
deceit, pretence, and concealment ; and having offered no
proof, and produced no evidence in support of these allega-
tions against the honesty and good name of the Plaintiff,
has not only virtually admitted the untruthful and ficti-
tious nature of his entire defence in this case ; but he has
also shown a degree oi malice towards the PlantifF; as well
as a disregard for his own legal obligations, which deserve
the censure of the Court.

It is therefore respectfully submitted, in conclusion,

that in view of all the facts and considerations connected

with the case, the Plaintiff is both equitably and legally

entitled to a judgment against the Defendant, for the sum

of five thousand dollars, with interest and costs.

TASCHEREAU and FORTIER,

Attorneys for Plaintiff.

R. ALLEYN,

Counsel.
Quebec, December, 7th 1876.