days by virtue of this agreement, shall be made accordingly; pro- XXXII. Building Agreement for Enlarging a Town House. Commencement and 7. The works are to be commenced on or before the day of 18—, and to be executed in a proper and execution of substantial manner in every respect, and to be completed on the works. or before the next (with the exception day of of new dining-room and stable building above basement level, which are to be completed on or before the day of -), in default whereof the said [builders] shall forfeit and pay to the said [owner] the sum of 501. per week as liquidated damages in each case, for every week during which the said works shall remain unfinished. Payments to be made by the said [owner], from time to time, as the works progress as hereinafter mentioned. The said specifications and drawings herein before mentioned are to be considered as embracing all the works necessary to be done in order to finish completely the several works therein mentioned, although the details may not be clearly and specifically expressed. (c) This clause touches a most important question to con- Bills of tractors. It has, until recently, been the custom to refer in the quantities. contract to the plans and specifications only, the contractor being supplied by the architect with bills of quantities from which to make his tender. In such a case the builder takes the whole risk of the bills of quantities being inaccurate, or being prepared, as they often are, by incompetent persons, and may either find that he has lost the contract by making an extravagant tender to secure himself, or that his tender, having been accepted, he has to do work for which he has no prospect of being paid. This uncertainty, which has done great harm to the building trade, is obviated by the above condition, which is in every way fairer to contractor, architect and proprietor, and is being largely adopted by the trade. For the results of depending on the accuracy of bills of quantities, see Kemp v. Rose, 1 Giff. 258; Kimberley v. Dick, L. R., 13 Eq. 1; Scrivener v. Pask (Ex. Ch.), L. R., 1 C. P. 715. In the latter case the contractors attempted to recover where the bill of quantities was no part of the contract, and Blackburn, J., said, that to entitle the plaintiffs to recover they must make out three things; that the architect was the defendant's agent, that the architect was guilty of fraud or misrepresentation, and that the defendant knew of and sanctioned it. B.-VOL. I. N N XXXII. Town House. 8. Complete copies of the drawings and specifications, signed Agreement for by the architects, shall be furnished by him to the builders, Enlarging & for their own use, and shall be kept on the premises in charge of a competent foreman, who shall be constantly at the works Specifications, and shall be employed by and shall represent the builders for the purpose of receiving notices, orders, and instructions. Drawings and Contract not &o. tract on builders' 9. No part of the work shall be assigned or underlet unless to be assigned, with the consent in writing of the architects. In case of the Cesser of con- bankruptcy of the said [builders], or of their entering into any composition with their creditors, or of their not proceedbankruptcy, ing with the works with sufficient dispatch, the architects shall be at liberty, after — days' notice in writing to the said [builders], to employ other persons to complete the works, and to take possession of all the material on the site, and to deduct the cost of completion from the sum then due under or by virtue of this agreement to the said [builders]. The said [owner] shall not be liable for any loss of materials, or for injury done to them during the execution of the works. 10. The said consideration money, or sum of £shall be paid by instalments, as the works progress, as follows, subject as hereinafter mentioned, that is to say: On the day of —, 18—, £——— Payment. Injunction. day ; on the day of day of 18-, the balance, £- -; but no payment made as aforesaid shall exceed 75 per cent, on the value of the work done up to the time of such payment, such value to be determined by the architects. 11. In the event of any proceedings for an injunction or otherwise being instituted and successfully maintained against the said (owner] in respect of the said works or new buildings, or any part thereof, the said (owner shall only be liable to pay to the said [builders] the actual value of the works executed and properly prepared up to the date of the successful termination of such proceedings, and the consequent stoppage of the works; [the amount so payable to be determined by the architects alone, whose decision shall be final in the matter.] The said [er] shall not be liable in damages or otherwise to the said (builders) in respect of any loss or alleged loss caused to them by the stoppage of such work, nor for any materials provided by them in anticipation of such works being carried through or otherwise, except as aforesaid: Provided, nevertheless, that nothing herein contained shall affect this agreement with reference to any works or buildings which shall not be included in such proceedings, and stopped as aforesaid. 12. All questions, disputes, or differences (if any) which shall arise between the parties hereto touching any matter or thing relating to this agreement, shall be submitted to the sole and final determination and award of the architects, and the said parties hereto respectively shall and will abide by and perform the said determination and award, to be made in writing, under the hands and seals of the architects, and to be delivered to the said parties hereto: And the submission hereby made may, at the option and the expense of either of (d) This is the clause ordinarily inserted in a contract of this nature. But there are many reasons why the architect is not an independent arbitrator between the builder and the proprietor in all cases, especially where the architect has given a guarantee to his client that the cost of the building shall not exceed a certain sum. See Kemp v. Rose, 1 Giff. 258; Kimberley v. Dick, L. R., 13 Eq. 1. The following clause is therefore suggested as an alternative: XXXII. Building Agreement for Enlarging a Town House. Settlement of disputes by architects (d). arbitration. In case any question, dispute, or difference shall arise Reference to between the said [owner], or the architects on his behalf, and the said [builders], as to what additions, if any, ought in fairness to be made to the amount of the said consideration money, by reason of the works being delayed through no fault of the said [builders], or by reason or on account of any directions or requisitions of the architects, involving increased cost to the said [builders], beyond the cost properly attending the carrying out this contract according to the signed drawings and specifications, or as to the works having been duly completed, or as to the construction of these presents, or as to any other matter or thing arising under or out of this contract, except as to matters left during the progress of the works, to the sole decision or requisition of the architects. under clause or in case the said [builders] shall be dissatisfied with any certificate of the architects, or in case they shall withhold or not give any certificate to which the contractors may be entitled, then such question, dispute, or difference, or such certificate, or the value or matter which should be certified, as the case may be, shall be from time to XXXII. the parties who shall so desire, be made a rule of her Building Agreement for Majesty's High Court of Justice. Enlarging a As WITNESS, &c. Town House. Parties. Contractors to erect build ings accor XXXIII. BUILDING AGREEMENT between CONTRACTORS and a COMMITTEE for the Erection of a PUBLIC BUILDING (a). THIS AGREEMENT made the day of 18—, BETWEEN A. B. and C. D., of &c., builders (hereinafter called the contractors), of the one part; and E. F., of &c. G. H., of &c., and I. K., of &c. (hereinafter called the committee), of the other part, WITNESSETH that for the consideration hereinafter stated the contractors hereby agree with the committee, as follows:— 1. The contractors will build and complete, within months from the time when they are put in possession of the -, a [church] at ding to plans, ground, for the sum of £ &c. county of in the according to the plans and specifications time referred to the arbitration and final decision of architect, or in the event of his death or unwillingness to act, then of -, architect, and in the event of his death or unwillingness to act, then of an architect, being a Fellow of the Royal Institute of British Architects, to be appointed on the request of either party by the President for the time being of such institute, and the award of such referee shall be equivalent to a certificate of the architect, and the contractors shall be paid accordingly. Such award or certificate may be made a rule of Her Majesty's High Court of Justice, or of any Court of Record in England. The costs of the arbitration and award shall be in discretion of the arbitrator. AS WITNESS, &c. (a) This Precedent is inserted by the kind permission of Sir Edmund Beckett, Bart., Q.C., and taken (with slight modification) from his "Book on Building," p. 37. This form of contract has been used, with slight variations, in numerous building operations, including those recently carried out at Lincoln's Inn. It may readily be adapted to the case of a single builder or employer. and directions from time to time of Mr. the architect, or such other architect as may from time to time be employed by the committee, including all things which in the opinion of the architect may fairly be inferred from such plans and specifications to be intended without being actually specified. XXXIII. Building Agreement for Erection of a Public Building. 2. The contractors shall also execute all such alterations Alterations and additional and additional works as shall be ordered by the architect, works. with the consent of the committee or by the committee. But if the contractors shall be of opinion that any such alteration or addition will cause additional expense, they shall not be bound to execute the same without an order in writing from the committee, stating the price which is either agreed on or certified by the architect as the proper sum to be allowed for the same, after giving credit for the value of any omissions which have been ordered, and such order shall state also the extension of time (if any) which is to be granted by reason thereof. And neither the contractors, nor any sub-contractor under them, shall be entitled to recover from the committee, or any member thereof, any more than the said sum of £ -, together with the amount of the sums contained in all such orders as last aforesaid; nor shall this clause be held to have been waived in consequence of anything to be done by the committee, or any member thereof, except an express waiver in writing, and then only as to the particular things included therein. The contractors shall, if required for the valuation of extras, produce the bill of quantities, with the prices attached thereto, on which their tender was based. powers. 3. The contractors shall follow the directions of the architect Architect's in all respects, and of the clerk of the works in his absence, subject to the last preceding clause; but neither of them shall be considered for any purpose the agent of the committee, nor have any power to act contrary to their directions. And the whole of the work shall be done to the satisfaction of the architect. But the passing or certifying of any work by the clerk of the works, or by the architect himself, shall not exempt the contractors from liability to replace the same if it be afterwards discovered to have been done ill, or not according to the plans and specifications, either in execution or materials. 4. If anything shall be discovered to have been done in Defects in an inferior way, or contrary to the specification or plans, made good. work to be |