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TMI Blog1921 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ond and third clauses. After a recital that the contractor has agreed to supply certain materials and perform certain services, the deed proceeds by the first clause as follows : Now this agreement witnesseth that in consideration of the sum of $ 3,000, to be paid as follows : $ 1,000 on the signing of this agreement further sum of $ 1,000 when it appears to the satisfaction of all the parties hereto that materials have been furnished and services performed to the extent of $. 2,500, and the balance or sum of $ 1,000, thirty days after the completion of this agreement, the party of the second part covenants, promises and agrees to with the parties of the first part that he will furnish the materials hereinafter mentioned and will per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d part over $ 2,000 plus 12 per cent instead of $ 1,000 as above stated. In estimating the value of the materials to be supplied and the labour performed the party of the second part on the final settlement of the amount due under this agreement shall produce all accounts paid by him for labour and materials and shall be entitled to the amount ascertained as paid by him for labour and materials plus 12 per cent. The work to be done as described in the contract, was very largely varied, added to and departed from, not merely by the addition of extras, but by substantial and extensive alterations in the scheme. A dispute arose between the parties as to the amount payable by the building owners. The contractor brought an action against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall not be liable under his covenant, that later provision is to be rejected as repugnant and void, for it altogether destroys the covenant. But if the later clause does not destroy, but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole.Thus if A covenants to pay 100 and the deed subsequently provides that he shall be liable to pay only at a future named date, or in a future defined event or if at the due date of payment he holds a defined office, then the absolute covenant to pay is controlled by the words qualifying the obligation in manner described. Furnivall v. Coombes, (1843) 5 Man. and G. 736 is an illustration of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises. If this were introduced by the word but or the words provided always nevertheless there would be no room for argument. Their Lordships cannot find that the absence of such words makes any difference. The third clause does not destroy the first, but qualifies it. Its effect may be said to be to make the $ 3,000 of the first clause an estimated sum whose accuracy is to be tested and controlled by taking the accounts, for which provision is made in the third clause. The obligation of the first clause is qualified not only by the second clause (as it obviously is), but by the third clause also. Their Lordships find no difficulty in reading the first and third clauses together and giving effect to the intention disclosed by the dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first clause is to be performed for a fixed price ; neither of those learned Judges is correctly quoting the contract. There is no contract in the first class to do the work for $ 3,000. The contract is that in consideration of $ 3,000 he will do the work. It is necessary to read the contract as a whole to see whether the $ 3,000, is to be the contract price for the work, or is to be a payment for undertaking the obligation to do the work. If there were no third clause, it may well be that the $ 3,000 would be the contract price, but looking at the third clause their Lordships do not find that it is. For these reasons their Lordships are of opinion that the judgment of the Supreme Court of Ontario was right, that this appeal should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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