Peter Kiewit Sons' Co. v. Eakins Construction Ltd.

Peter Kiewit Sons' Co. v. Eakins Construction Ltd.

Because the subcontractor, with full knowledge of the engineer's position and without obtaining rescission, elected to continue performance under protest, its rights are limited to the terms and remedies of the existing subcontract and the main contract's provisions for extras; there was no frustration nor consent to substitute a new contract so quantum meruit recovery is excluded and the appeal is allowed restoring the trial judgment subject to a reference for the 22 piles at pier 10.

Citation
[1960] SCR 361
Parties
Defendant/appellant (main Contractor): Peter Kiewit Sons' Company of Canada Limited and Raymond International Company Limited (Kiewit-Raymond); Plaintiff/respondent (sub Contractor): Eakins Construction Limited; Defendant (employer/authority): British Columbia Toll Highways & Bridges Authority
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
22 February 1960
Procedural Posture
Contract (subcontract Dispute; Appeal) / Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia
Outcome
Appeal allowed; judgment of Court of Appeal reversed in part; trial judgment restored; action dismissed except for contractual recovery for 22 piles at pier 10 to be assessed.
Legal Topics
Subcontract Interpretation, Engineer’s Directions, Extra Work, Quantum Meruit, Frustration of Contract, Elective Performance, Costs Bullock Order
Source Language
English
Contract Restitution/quasi Contract Civil Procedure Costs Subcontract Interpretation Engineer’s Directions Extra Work Quantum Meruit Frustration of Contract +2 more

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Parties

Peter Kiewit Sons' Company of Canada Limited and Raymond International Company Limited (Kiewit-Raymond)

Defendant/appellant (main Contractor)

Eakins Construction Limited

Plaintiff/respondent (sub Contractor)

British Columbia Toll Highways & Bridges Authority

Defendant (employer/authority)

Procedural Posture

Contract (subcontract Dispute; Appeal) / Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia

Legal Issues

  1. 1 Whether the disputed pile work was within the subcontract or an extra
  2. 2 Whether the engineer's addendum/change in plans validly altered subcontractor's obligations
  3. 3 Whether the original subcontract was rescinded and substituted by a new contract by conduct

Ratio Decidendi

Because the subcontractor, with full knowledge of the engineer's position and without obtaining rescission, elected to continue performance under protest, its rights are limited to the terms and remedies of the existing subcontract and the main contract's provisions for extras; there was no frustration nor consent to substitute a new contract so quantum meruit recovery is excluded and the appeal is allowed restoring the trial judgment subject to a reference for the 22 piles at pier 10.

Court Disposition

Appeal allowed; judgment of Court of Appeal reversed in part; trial judgment restored; action dismissed except for contractual recovery for 22 piles at pier 10 to be assessed.

Orders

  • Appeal allowed
  • Judgment of the Court of Appeal set aside in respect of quantum meruit recovery against appellant