Ottawa Northern & Western Ry. Co. v. Dominion Bridge Co.

Ottawa Northern & Western Ry. Co. v. Dominion Bridge Co.

Appeal dismissed; majority held the claimed $50/day debt was not sufficiently 'claire et liquide' and demandable to be set off by simple plea of compensation and therefore could not be opposable without a cross-demand under art.217 C.P.Q.; alternative waiver argument accepted by some judges but the controlling ground was the procedural requirement for cross-demand and lack of a liquid demand.

Citation
(1905) 36 SCR 347
Parties
Appellant/defendant: The Ottawa Northern & Western Railway Co.; Respondent/plaintiff: The Dominion Bridge Co.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
3 June 1905
Procedural Posture
Civil Appeal (contract/damages) / On Appeal to Supreme Court of Canada From Court of King's Bench, Appeal Side, Province of Quebec
Outcome
Appeal dismissed; judgment of Court of King's Bench and Superior Court affirmed
Legal Topics
Compensation/set Off, Liquidated Damages, Penal Clause, Condition Precedent, Cross Demand (art.217 C.p.q.), Waiver/acquiescence
Source Language
English
Civil Procedure Contract Law Construction Law Quebec Civil Law Equitable Estoppel/waiver Compensation/set Off Liquidated Damages Penal Clause +3 more

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Parties

The Ottawa Northern & Western Railway Co.

Appellant/defendant

The Dominion Bridge Co.

Respondent/plaintiff

Procedural Posture

Civil Appeal (contract/damages) / On Appeal to Supreme Court of Canada From Court of King's Bench, Appeal Side, Province of Quebec

Legal Issues

  1. 1 Whether damages under a contractual daily sum were 'claire et liquide' and demandable so as to be available as compensation/set-off without a cross-demand under art.217 C.P.Q.
  2. 2 Whether the liquidated damages clause was enforceable or was a penal clause
  3. 3 Whether joining in a petition for extension of time constituted a waiver/acquiescence barring enforcement of the liquidated damages

Ratio Decidendi

Appeal dismissed; majority held the claimed $50/day debt was not sufficiently 'claire et liquide' and demandable to be set off by simple plea of compensation and therefore could not be opposable without a cross-demand under art.217 C.P.Q.; alternative waiver argument accepted by some judges but the controlling ground was the procedural requirement for cross-demand and lack of a liquid demand.

Court Disposition

Appeal dismissed; judgment of Court of King's Bench and Superior Court affirmed

Orders

  • Appeal dismissed with costs
  • Judgment below affirmed