It would appear by analogy from the case of Richardson v Mellish, 2 Bing. 242 that if an architect recommended a surveyor to take out quantities, on the understanding that the surveyor should pay him (the architect) a reward, the contract between teh architect and the surveyor is void if unknown to the employer; if the contract arrangement is known to the employer, then there is nothing illegal in it and it can be enforced.\ A difficulty most unlikely to occur, it is, however, necessary to mention, as it has hapened. It would appear Corporations, Boards of Guardians and other public bodies cannot give verbal orders except for small, and what are considered necessary, contracts without deed.
A surveyor made a plan of the parish of St. Clement's Danes, and attended as a witness in support of his plans and valuation on the verbal orders of the guardians of the Strand Union.
Held, not entitled to recover anything for his labour.
When the quantities are prepared either for the new building or the reparation of an old one, it is usual to the contract in writing. This is undoubtedly the wisest and safest, but the law says that contracts for building or repairing houses, or for doing any works upon lands, if they may be performed within a year from the making thereof, need not be in writing.
It would appear that in some cases the architect would do wisely not to act as quantity surveyor in measuring extras and omissions at the conclusion of the contract. It is when he has to determine the amount due to the builder and has assured the employer that the cost shall not exceed a certain sum, he does not in the eye of the law possess the unbiased mind which will enable his conclusion to be just and conclusive, and the builder may bring a claim for a sum over and above that allowed by the architect. It appears from this that it would be imprudent on the part of an
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architect to take upon himself the function of determining the amount due to the builder, at least in cases where he has given such an assurance to his client, as he may be leading the latter into a position which he ought not to occupy, and that his better course would be, as agent to his client, to put the winding up of the account in the hands of an independent surveyor. The cases which bear this out are Kemp v Rose, 27 L.J., Ch. 246; and Kimberley v Dick, L. R., 13 Eq. 1 The legal definition is very clear -
"In treating of the contract to perform works, the method proposed is to state the general duties of each party separately. In such a contract one party, termed the contractor, agrees to perform certain works; and the other, termed the employer, agrees to pay a certain reward. The duties of the contractor are, first, to finish the work; secondly, to use care and skill in the performance; thirdly, to do it within a proper time; fourthly, to comply with the particular stipulations in the contract as to the manner of performance. The duties of the employer are, first, to pay; secondly; not to prevent but to assist the contractor in his execution of the contract.
"The first duty of a contractor is to complete his contract, that is, to finish all the work he has agreed to do. If he contracts to do a specific work for a specific sum, he must perform the whole of the work before he is entitled to receive payment of any part of the price; so long as the work is unfinished, he is entitled to nothing."
Of course, the condition in the contract of instalments, varying from 70 to 80 per cent., varies this last legal maxim that he is entitled to nothing until the building is fully completed.
But to show that a contractor must perform most fully what he undertakes, I would cite the following cases:-
"So, where the contract was to build a mill for a specified sum, and if it did not answer, to build another, the court decided that the plaintiff could recover nothing for building the mill unless he either proved that it had answered or had been accepted by the defendant."
Another curious case I give-
"And when the action was on a contract was on a contract to build a house for a certain sum, which the plaintiff did not complete because the defendant had refused to supply him with money as he went on, Coleridge, J., ruled that 'he was not entitled to receive anything under the contract until he had finished the house;' and he failed to recover anything for the work done under the contract, although he recovered for extra works."
These last cases may not seem to affect surveyors who take out quantities; but to make this work most useful I shall give all cases that affect both the taking out the quantities and the carrying next page