Git v. Forbes

Git v. Forbes

Majority held the later cost-plus-12.5% clause was repugnant to the earlier absolute covenant to perform the specified work for a fixed lump sum of $3,000 and, absent special reason to the contrary, the later clause must be rejected; trial judge’s construction and award (fixed price plus limited extras) restored.

Citation
(1921) 62 SCR 1
Parties
Defendants Appellants: Jean K. Git and Others; Plaintiff Respondent: Sydney S. Forbes
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
11 March 1921
Procedural Posture
Contract / Appeal to Supreme Court of Canada From Appellate Division of the Supreme Court of Ontario
Outcome
Appeal allowed; judgment of County Court restored; Appellate Division judgment set aside
Legal Topics
Contract Interpretation, Repugnancy of Clauses, Cost Plus Payment, Quantum Meruit, Extras
Source Language
English
Contract Construction Mechanics Lien Contract Interpretation Repugnancy of Clauses Cost Plus Payment Quantum Meruit Extras

Case Brief

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Parties

Jean K. Git and Others

Defendants Appellants

Sydney S. Forbes

Plaintiff Respondent

Procedural Posture

Contract / Appeal to Supreme Court of Canada From Appellate Division of the Supreme Court of Ontario

Legal Issues

  1. 1 Whether a later contractual clause providing payment on cost-plus-percentage is repugnant to an earlier absolute covenant to perform work for a fixed lump sum
  2. 2 Whether the clauses can be reconciled so that the $3,000 operates as an estimate and payment is on cost-plus basis
  3. 3 Whether the contractor is entitled to recover extras beyond the fixed price

Ratio Decidendi

Majority held the later cost-plus-12.5% clause was repugnant to the earlier absolute covenant to perform the specified work for a fixed lump sum of $3,000 and, absent special reason to the contrary, the later clause must be rejected; trial judge’s construction and award (fixed price plus limited extras) restored.

Court Disposition

Appeal allowed; judgment of County Court restored; Appellate Division judgment set aside

Orders

  • Appeal allowed with costs
  • Judgment of the County Court (trial judge) restored