there might be about $20,000 retained for percentages. The residue was for work done, not paid for by the company.

It was not shewn that any money was paid by the company to the defendant for any work done after the 31st December, 1872, and it was for work done after that date that the plaintiff claimed the $790.75.

The learned Judge left to the jury the question, whether the defendant had received the percentages up to 31st December, and they found that he had, and gave a verdict for the plaintiff for $719. 61; but leave was reserved to the defendant to have the verdict entered in his favor if the Court should be of opinion that there was no evidence to

sustain it.

It was also left to the jury to find, whether the company had put an end to the defendant's contract, and they found that the company had terminated it, owing to the default of the defendant.

On this finding, the learned Judge reserved leave to the plaintiff to move to increase his verdict to the sum of $1,510. 36.

In Michaelmas Term, Read, Q.C., obtained a rule nisi to set aside the verdict for $719. 61, and McMichael, Q. C., obtained a cross rule to increase his verdict.

In the same term Read, Q. C., shewed cause to the plaintiff's rule, and also supported his own rule. The plaintiff is not entitled to be paid until the whole of the work in the defendant's contract with the company is completed and accepted by them, and the defendant is paid the amount coming to him. The plaintiff is not entitled to the sum of $719.61, as the evidence clearly shews that the defendant did not receive the amount of the percentages, up to the 31st December, 1872, and he is now suing the company for $34,000, of which $20,000 is for percentages withheld from him, including the percentage due on this section; and the $15,000 he received from the company was simply an advance or loan, and was not in payment of any particular

work done. As to the balance claimed, $790.75, by which the plaintiff seeks to increase his verdict, this certainly should not be allowed, as it is for work done after the 31st December, and there is no question that nothing has been paid since that date. The fact of the company having put an end to the contract for the defendant's default does not enable the plaintiff to bring an action, as by the terms of the contract the suspension of the work does not give a right of action, but it can only be brought for not furnishing estimates or in not paying them when paid by the company. The whole difficulty in the case arose from the plaintiff not having completed his work until November, whereas it should have been done by March.

McMichael, Q. C., contra. The plaintiff is entitled to recover for the whole amount claimed. According to the contract the plaintiff was to be paid as soon as the work—that is, the work specified in the contract between him and the defendant-should be completed and accepted by the company and the defendant paid therefor, and the evidence shews that the defendant has been paid in full for this work, and it is for other work, on other sections, that the plaintiff claims that the company are indebted to him. The plaintiff's work was fully completed before they put an end to the defendant's contract, and it was in consequence of the other sections that the trouble arose, and the defendant's contract was avoided. It was contended by the defendant that, according to his contract with the plaintiff, the plaintiff could have no claim against him until the whole of the work in his contract with the company was completed and accepted by them and he was paid therefor; but this is not the effect of the contract, for the contract shews that in case the work is suspended the plaintiff is to be paid for the work actually done by him; but even if it were not so, the defendant, by his own default in causing the contract to be rescinded, has precluded himself from setting up this defence.

5-VOL. XXIV C.P.

HAGARTY, C. J.—The question arises wholly on the issue of never indebted, on the common counts. The defendant says that he does not owe the money in question, because he has not been paid it by the railway company.

No question arises on the pleadings.

It might perhaps be more correct that the defence set up should have come up by way of confession of the amount being due and the debt incurred by the defendant, but avoided by the term in the contract, that payment was not to be made till ten days after the defendant should have received the amount from the railway company. The defendant on this issue has to rest his defence on the broad ground that a complete cause of action has never accrued against him.

It is to be observed that the company's engineer is to ascertain and settle the quantity of the work to be done by the plaintiff for the defendant.

The defendant is allowed by the contract to retain ten per cent. of each monthly certificate, as a security for plaintiff's due performance of the work to the satisfaction of the defendant and of the company's engineer, and this amount, with any remaining balance on the final estimate, is to be paid to the plaintiff within thirty days after the work is accepted by the company, and the plaintiff shall paid by them.

The contract provides that if the company suspend the works, the plaintiff shall have no claim for damages against the defendant, but such right shall arise only from the defendant's default in furnishing estimates, or in payment of them, according to the true intent and meaning of the contract, when he shall have received payment from the company. On the defendant's contention, he can retain ten per cent. of the plaintiff's whole claim till final acceptance and payment by the company. He admits in the contract that he is liable to an action for damages, if he do not pay the estimates according to the true meaning of the contract, when paid by the company.

He appears to be forced to contend that non-payment to him by the company, rightful or wrongful, is a full defence against the plaintiff's claim.

I have great difficulty in acceding to that view. I think the true intent and meaning of such a contract must be that at the best the defendant can say: "If I duly perform my contract with the company, and though I be entitled to the money from them, if from any cause, not arising from any act or default of mine, they do not pay, you cannot call on me to pay."

In the present case it is found that in consequence of the defendant's default the company have taken possession of the works, and determined his contract.

This contract was not produced by the defendant. If, as is most probable, it contained the common printed conditions in the contract before us, then in certain specified cases the company can take possession and relet the works to others, charging the defendant with any extra cost, and forfeiting all his claim to the ten per cent. retained.

I consider it was thrown upon the defendant to shew everything necessary to make a good defence, at least in the face of the finding, that he has made default.

I think in every bargain, like that between the plaintiff and the defendant, when payment for work actually done is to be postponed till payment by a third party, for whom, as the paymaster in chief, the whole work has to be done, there is a clear, implied condition lying at the root of the bargain, that nothing shall be done or omitted on the defendant's part to intercept or prevent payment by such third party.

If such non-payment be an absolute bar, there must be a remedy somewhere, and an action, we must presume, will lie by the plaintiff against the defendant for his wrongfully neglecting to perform his contract, so that the company had not paid or would not pay him, whereby the plaintiff could not get his pay.

This would be a cumbrous and circuitous remedy, and I

do not think the law is so unreasonable as to require it to be adopted.

I liken this case, in principle, to one of no uncommon

occurrence.

A person about erecting a house contracts with a man to furnish the iron, or other work required. It is to be put in by a named day, with a sum named as liquidated damages of per day, for each day after that day, with the right to deduct the penalties, if incurred, from the contract price. The owner is sued for the price, and pleads that the work was not done by the appointed time, and the contract price is swallowed up by the penalties. To this it is answered, that the iron work could not be done by the time agreed, because the owner had not his building ready to receive it. This is a good answer. The case of Hamilton v. Moore, 33 U. C. R. 100, 275, 520, may be referred to.

The plaintiff there is not driven to bring an action against the owner for not having the building ready, and thus preventing the plaintiff from fulfilling his contract, and avoiding the penalties.

It seems to me to apply equally here. By the defendant's default in dealing with others, he has not been paid by them, and therefore says he will not pay the plaintiff, pointing to the letter of the bargain. To this the plaintiff answers, that this all arises from the defendant's miscarriage, and his right to his payment must not depend on that. The defendant states that he is proceeding at law and in equity against the company for a large claim for extra work, and for ten per cent. held back by them.

I do not think that the plaintiff's right to payment is to depend on the possible success or failure of this litigation.

No attempt is made to disprove the finding that the contract with the company was terminated by the defendant's own default.

With this fact so found, I think the defence fails. The authorities are noticed in Hamilton v. Moore, before referred to. On the same point, see also Westwood v. Secretary of State for India, 7 L. T. N. S. 736.