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XXXI. To manlike, and substantial manner, to the satisfaction of the
days after the com-
4. If the works shall not be completed, or if the said scaffolding, implements, and plant shall not be removed within the times hereinbefore respectively mentioned, then, and in either such case, for every subsequent working-day until the completion of the works or the removal of the said scaffolding, implements, and materials, as the case may be, the builder shall pay to the owner £- - as liquidated damages : and it shall be lawful for the owner to deduct any sum which may become payable to him, under or by virtue of this clause, from the money which shall be due to the
builder under this agreement.
give or leave notice in writing of such default at the place of
the owner by the builder.
within days (or months) next after the completion of
(6) See Duckworth v. Alison, 1 Mee. & W. 412.
To the satis. faction of
7. If the owner should direct any more work to be XXXI. To
Build & done (d) in or about the said dwelling-house and premises House, &c.
work to be owner before payment of the remuneration, the owner has a right paid for. to be given an opportunity to inspect the work before he can be required to pay; but he must not refuse his approval unreason- surveyor or
architect. ably; and it is for the jury to say whether or not such refusal is reasonable: Dallman v. King, 5 Sc. 382; Parsons v. Sexton, 16 L. J., C. P. 181, 184.
(d) A contract for building a house is clearly not a contract Additional relating to land, or for th sale of goods, within the Statute of work. Frauds, and unless it is not to be performed within the year, may be made by parol, and if made by writing, may be subsequently varied by parol: Vide ante, p. 372 et seq. In Pinner Contracts for V. Arnold, 2 Cr., M. & R. 613, it was held that an agreement for sale of goods the purchase of a copper-plate press, to be made and delivered and for work within three months, was within the exemption in the Stamp Act distinguished. (55 Geo. 3, c. 184), as being an agreement for the sale of “goods, wares or merchandise.” See Cotterell v. Apsey, 6 Taunt. 322; Heath v. Freeland, 1 Mee. & W. 543. Where a builder contracts for a particular sum, and additions are made to the original plan, the contract remains binding as far as it can be traced, and the excess only is recoverable on a quantum meruit: Pepper v. Burland, Peake, N. P. C. 103; Robson v. Golfrey & Thomas, Holt, N. P. C. 236; S. C. 1 Stark. 275. See Hoadly v. Maclaine, 4 Moo. & S. 340; Jackson v. Galloway, 6 Scott, 786; Lovelock v. King, 1 M. & Rob. 60.
While an express contract is subsisting, no compensation can Express conbe recovered upon a quantum meruit for work done which can be tract excludes referred to it: Sinclair v. Bowes, 9 B. & Cr. 92. Thus, where any implied
promise. the plaintiff agreed to remove certain rubbish at a specified sum, under a fraudulent representation by the defendant as to the quantity, it was held that he could not recover for the excess : Selway v. Fogg, 5 Mee. & W. 83. See Read v. Hutchinson, 3 Camp. 352 ; Ferguson v. Carrington, 3 Car. & P. 457; 9 B. & Cr. 59; Rees v. Lines, 8 Car. & P. 126. So where an architect employed by the defendant to prepare plans and specifications, took out the quantities, and the plaintiff believing they were correct, made a tender, which was accepted, it was held that the plaintiff could not claim more than the contract price, although, by reason of the incorrectness of the quantities, he had expended more materials than he had contemplated : Scrivener v. Pask, L. R., 1 C. P. 715. In an action for extra work, the written contract must be produced: Jones v. Howell, 4 Dow, P. C. 176. See Reid v. Batte, i Mood. & M. 413; Vincent v. Cole, Id. 257; 3 Car. & P. 481; Fielder v. Ray, 3 Moo. & Pay. 659; Stephens v. Pinney, 2 J. B. Moore, 349; Hughes v. Budd, 8 Dow, P. C. 478. But when there is no agreement for a specific sum, or for completion of the work or non-payment, the value of the work done may be recovered from time to time before the completion of the contract, if the work is of a kind that is usually so paid for : Roberts v. Havelock, 3 B. & Ad. 404. If a fixed price is agreed upon, and the work furnished is of Effect of fur
nishing better 7 East, 479; Grounsell v. Lamb, 1 Mee. & W. 352. Loss by fire. As to the effect of loss by fire before the completion of the con
XXXI. To than is mentioned in the schedule hereunder written, the
work, and the materials used therein, shall amount unto, in Omitted work addition to the said sum of £- -; And if it should be to be deducted.
thought proper by the owner to diminish or omit any part of the work in the said schedule hereunder written, Then, and in such case, the builder shall allow out of the said sum of £
so much money as the work so to be diminished or omitted shall amount unto, upon a reasonable valuation. No extra or additional work shall be done by the builders without the previous order in writing of the owner.
8. All work which may be rendered necessary by reason of the works hereby agreed to be executed by the builders, and also all things which may fairly be inferred from the said plans and specifications, although such works and things respectively may not have been actually specified in the same plans and specification, shall not be deemed to be
work than better quality than that stipulated for, this, if it was done withthat con- out authority, is still only a performance of the agreement, and tracted for.
the party can neither recover an additional compensation, nor have back his work in order that he may substitute an article of
inferior quality, but sufficient to satisfy the contract: Wilmot v. Repairs by Smith, 3 Car. & P. 453. On a similar principle depends the rule tenant.
that if a lessee who is bound to repair or replace fixtures, substitutes better articles than those he has removed, he does so for
the benefit of the landlord: Sunderland v. Newton, 3 Sim. 450. Work inferior But of course evidence that the plaintiff has not performed all to that con
that he contracted to do, or that he has not done it so well as he tracted for.
was bound to do it, or that he has varied in other respects from the contract, is admissible in reduction of damages, whether a price was fixed by the agreement or not: Allen v. Cameron, 1 Cr. & Mee. 832; Chapel v. Hickes, 2 Cr. & Mee. 214; Thornton v. Place, 1 M. & Rob. 218. See Street v. Blay, 2 B. & Ad. 456; Cutler v. Close, 5 Car. & P. 337 ; Baillie v. Kell, 6 Scott, 379. If the party who is to do the work deviates from the specification, he must pay the expense of completing the work according to the contract, and cannot recover the value of the work which was not authorized by the contract: Thornton v. Place, 1 M. & Rob. 218; Ellis v. Hamlen, 3 Taunt. 52: And if the work is wholly insufficient for the contemplated purpose, the plaintiff cannot recover at all: Duncan v. Blundeli, 3 Stark. 6; Farns
Garrard, 1 Camp. 38; Denew v. Daverell, 3 Camp. 451 ; Moneypenny v. Hartland, 2 Car. & P. 378. See Basten v. Butter,
tract, see Menetone v. Athawes, 3 Burr. 1592; Gillett v. Mawman, 1 Taunt. 137; Tripp v. Armitage, 4 Mee. & W. 687, 699.
additional or extra works within the meaning of this agree- XXXI. To ment, nor shall the builders be entitled to any additional House, &c. payment in respect thereof. 9. If any dispute or difference should arise touching or Arbitration
clause (e). concerning the dwelling-house, buildings, and works, hereby covenanted to be made and done as aforesaid, or touching or concerning any other matter or thing whatsoever, relating to the work hereby contracted to be done, or such additional or extra work as aforesaid, Then such dispute or difference shall be left to the determination and award of three indifferent persons, one to be named by the [builder], another by the [owner], and the third to be chosen by the said two persons so to be named as aforesaid, immediately or within ten days after notice of such dispute or difference; and the decision of the three persons so to be chosen, or of any two of them, shall be final.
IN WITNESS, &c.
XXXII. BUILDING AGREEMENT for making
extensive ALTERATIONS of, and Additions to a
House in London.
day of 18—, BETWEEN [builders], of &c., of the one part, and [owner], of &c., of the other part. WHEREBY it is agreed as follows :1. The said [builders], in consideration of the sum of Agreement
for execution £- to be paid to them by the said [owner], as herein- of works. after mentioned, will at their own costs and charges, execute certain works in alterations of and additions to No. 100, Street, W., according to the drawings numbered 1 and 2, and the specification severally signed by them, such several works to be done under the direction and to the entire satisfaction of Messrs. [architects), of &c., or other the architects for the time being appointed by the said [owner] (who are hereinafter referred to as the architects), to superintend the works
(e) Other forms of arbitration clauses in building agreements will be found post, pp. 546, 547.
in accordance with the requirements of the local authorities, Building Agreement, and upon the conditions hereinafter specified. Town-house.
2. The said [builders], shall at their own costs and charges Builders to provide all necessary labour, strong and secure scaffolding, provide proper mate. moulds, and implements of every kind necessary for carrying rials, &c.
on and completing the works, and also all materials required for the due performance of this contract, which are to be the best of their several sorts and kinds mentioned in the said
specification. Notices 3. The builders shall give the proper notices to, and pay to local authorities. the fees of the district surveyor of the Metropolitan Board of
Works, and all other public bodies and officers entitled thereto, and shall perform and do all things required by them re
spectively. Defects to be
4. The architects may at any time inspect the works and made good.
materials supplied for the execution of the same. If at any time during the progress of the works above mentioned, any improper or defective materials or workmanship be observed, upon notice being given in writing, the said materials shall be immediately removed from off the premises, or the said workmanship shall be immediately made good at the cost of the said [builders] ; or the architects shall be at liberty to remove or make good the same as the case may be, and deduct the expense of such removal or making good from the amount of
the consideration-money hereinafter mentioned. Alterations, 5. Should any alteration, variation, or omission be made in &c. in works.
the works, the same shall not make void or invalidate this agreement, nor vary the time hereinafter fixed for completion of the works, unless an extension of time shall be allowed by an order in writing of the architect (a), but the value of any such alteration, variation, or omission as aforesaid, shall be estimated by the architects and be added to or deducted from the amount due under or by virtue of this agreement as the case may be. No extra works are to be done without the previous order in writing of the architects.
6. If any errors shall be discovered in the detailed bills of tities.
quantities, the same shall be rectified, and an addition to or deduction from the amount payable to the builders under or
Bills of quan.
(a) A provision similar in effect to that in the text was strictly enforced in the case of Jones v. St. John's College, L. R., 6 Q. B.