No. X.

An Agreement between a Builder and his Employer, for Building a House, &c. all Materials being found by the Builder (1). Variations where the Materials are found by the Employer.

AGREEMENTS.

Build.

ARTICLES of agreement, entered into this day of in the year of our Lord BETWEEN (the builder) of, &c. of the one part, and (the employer) of, &c. [by (an agent) of, &c. duly authorized thereunto if so] (2) of the other part, as follow, that is to say, the said (builder) for the consideration hereinafter mentioned, doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree, with and to the said (employer), his heirs (2), executors, administrators (3), and assigns, that he the said (builder), his executors, or administrators, shall and will, at his and their own proper costs and charges, erect and build in a good and substantial and workmanlike manner, a messuage or dwelling-house at, &c. in such manner, and within such time, as are hereinafter expressed and limited, and conformably to the plan and elevation thereof, delineated in the margin of these

(1) See other forms of Building Agreements, 1 Bythw. Precedents 52. 275. 305, which promises to be, when finished, a very valuable publication. See also 1 Wms. Precedent, 645. 647. 657. 668. 673. and 1 Newn. 68.-See likewise ante, Vol. IV. No. IV. •p. 36.

(2) In an agreement by an agent on the part of his principal, for Principal bound building a house, &c. the principal will be bound although no special by acts of agent. authority to make the specific contract be proved, so that the general authority be sufficient to comprehend the terms of the agreement. Hall v. Holt, 2 Vern. 322.; 3 P. Wms. 223. S. C.; Duchess of Marlborough v. Strong, 5 Vin. Ab. 533; 2 Eq. Ca. Ab. 19, pl. 11; 1 Brow. P. C. 175; see Fenn v. Harrison, 3 Durnf. & E. 757; Wyatt v. Marq. Hertford, 3 East, 147.-See ante, p. 17, in notes.

(3) If the owner of an estate of inheritance agree for the building of a house, &c. and die, the heir has a right to the benefit of the contract out of the personal estate, and consequently to call upon the executors, &c. for performance of it. Lechmere v. Čarlisle, 3 P. Wms. 223. 227; Ca. Temp. Talb. 80.

SUP.-VOL. I.

Heir has the benefit of his ancestor's contract.

to be pay

presents, [in, of, or for the consideration or sum of £
able and paid at the time, and in the manner hereinafter expressed
concerning the same if such the agreement] (1). AND at his and
their like expence, shall and will do, perform, and execute, or cause
to be done, performed, and executed, in a good, substantial, and
workmanlike manner, and agreeably to the directions and approba-
tion of A. B. of, &c. surveyor, or other the surveyor or surveyors, to
be from time to time appointed by the said (employer), his heirs or
assigns, all such excavations, levellings, spreadings, works, matters
and things, in and about erecting the same, as shall be by such sur-
veyor deemed or considered necessary or proper in relation thereto,
and shall and will, at his and their own like costs and charges, find
and provide all, and all manner of bricks, tiles, stones, lime, nails,
lead, iron, brass, timber, wood, wainscot, glass, and all other mate-
rials and things, and all scaffolding, tackle, tools, utensils, and
workmanship whatsoever, necessary and sufficient, and that can,
shall or may be required to be used and done, in and about the
erection of the said messuage or dwelling-house. AND shall and
will complete and finish the same, fit for the habitation and recep-
tion of the said (employer), on or before the
day of
which will be in the year of
accidents by fire, storm,
or tempest only excepted (2), and in all things agreeably to the
specification or description, and particulars hereinafter expressed,
that is to say (insert here the particulars). AND the said (builder)
doth hereby declare and agree, that he, his heirs, executors, and
administrators, shall be accountable for the full performance of this
contract, and by the signing hereof, admits that the said plans,
specifications, descriptions, and particulars, before referred to, are
sufficient to their intended purpose, and that without any additional
or extra work, other than the works set forth thereby, or necessarily

(1) If the materials are to be found by the employer, say,

"And also that the said messuage or dwelling-house and buildings, shall be erected and built with such bricks, stone, lime, timber, and other materials as shall be provided for that purpose by the said (employer), his heirs, or assigns."

(2) An agreement for the performance of a thing should contain an exception against accident, for otherwise he will be bound by his stipulation, notwithstanding any obstacle arising by accident; for although the law excuses accident against an implied covenant for performance, yet it will not against an express covenant. See Burke v. Hodson, 3 Maul. and Selw. 267; Thornborough v. Whitaker, 2 Ld. Raym 11. 64.

inferred to be done from the general nature and tendency of the plans and descriptions aforesaid, and that the whole of the said works shall be done to the entire satisfaction of the said surveyor, and in all respects according to the intent and meaning of the specifications aforesaid, upon every sentence whereof a fair and liberal construction shall be made. AND that if any materials shall be brought in which shall not be approved of by the said surveyor, he the said (builder), his executors, and administrators, shall take them away at his and their own expence, and provide such other materials. in lieu thereof, as the said surveyor shall approve. AND that if any part of the said materials or work shall be ordered not to be used or done respectively, under the hand-writing of the said surveyor, the same shall be withdrawn, and the difference of expence occasioned thereby shall be deducted from the amount hereinafter agreed to be paid to the said (builder), his executors, administrators, and assigns; and in like manner if the said surveyor shall in writing under his hand, order any materials, or work to be used or done, not included in this contract, the difference of the expence to be so occasioned, shall be added to the amount of the sum so to be paid; but no account or allowance shall be had or made in respect of any work omitted to be done, nor of any extra works which shall be done, unless the same be omitted or done, by an order in writing under the hand of the said surveyor (1); and all accounts and allowances for such omission or extra works respectively, shall be ascertained and settled by the said surveyor from time to time as they shall be made or take place; and in case of any differences between the said (builder) and the said surveyor in relation thereto, then the same shall be referred to C. D. of, &c. surveyor, at the expence of the said (builder), his executors, and administrators, and the determination of the said C. D. shall be final and conclusive upon both parties, &c. (2). AND in case the said work shall not be completed and finished,

(1) When a builder contracts for a particular sum, and additions are afterwards made to the original plan, this will not invalidate the agreement, further than to the extent of the variations, unless they be so material as to alter the general plan and nature of the building. See Pepper v. Barland, Peake, 103.

(2) If the contract be for the erection of any building, in which it is likely variations from the original plan proposed may be necessary, say, "AND further that if the said (employer), his heirs, or assigns, or the said surveyor, shall, in writing under his or their respective hands, during the progress of the building, erecting, and completing

If builder and reference to be made to a third

surveyor differ,

surveyor.

day of

and the said house shall not be fit for habitation, on or before the
said
the said (builder) doth hereby agree to pay to
the said (employer), his heirs or assigns, as and for liquidated or
assessed damages (1) to be incurred by such default, the sum of
£ per week, for every subsequent week, until the said works
shall be so completed and finished. PROVIDED, &c. (2). AND in

the aforesaid erections and works, make, or cause to be made, any alterations in, or variations from the original plan and particulars of the said intended building, delineated in the margin of these presents, or heretofore particularly mentioned, either by adding to, or diminishing from the same, or by any other difference or deviation whatsoever, in all, or any part or parts of the said works respectively, such alterations, variations, or deviations, in, or from the said original plan or particulars, shall not in any wise alter the consideration to be paid to the said (builder), his executors, or administrators, as hereinafter mentioned, than as the same may vary or alter the quantum of materials and labour used and expended, in, or about the said works, nor in any wise vary or alter the mode hereinafter fixed and agreed upon, for the ascertaining and determining the quantum of materials and labour, so to be used and expended, but such altered plans and particulars shall be pursued and carried into execution, and the respective works necessary or required to be done for that purpose, shall be done and completed by the said (builder), his executors or administrators, in the same way and manner, and within the same time (either by the employment of an additional number of workmen, or such other mode as shall be necessary for the last mentioned purpose), as is and are in these presents covenanted or agreed to be done, performed, and executed, according to the plans and particulars now made or mentioned as aforesaid, and as if the said plans and particulars so to be substituted and required to be carried into execution by the said (employer), or the said surveyor, had been originally delivered to the said (builder) at the time of executing these presents."

(1) Where a man agrees to pay a sum by way of liquidated damages on breach of covenant, a court of equity will not relieve him against the payment. Small v. Fitzwilliam, Prec. Ch. 102; Woodward v. Giles, 2 Vern. 119; but otherwise where the penalty is to secure the enjoyment of a collateral object, it then being holden to be imposed in terrorem only, ib. see also Hobson v. Trevor, 2 P. Wms. 191; Chiliner v. Chiliner, 2 Ves. 528; Slowman v. Walker, 1 Brow. Ch. Ca. 418; and see ante, Vol. I. No. I. p. 15. n. 30.

(2) There may be inserted, if such be the wish of the parties, a proviso for the forbearance of the penalty to be incurred by not completing

consideration of the said works and agreements so to be finished by the said (builder) in manner aforesaid, he the said (employer) doth

the building within the given time, if in the mean time it be destroyed by accident, in which case, say,

AGREEMENTS.

nalty.

Build.

"PROVIDED ALWAYS, and it is hereby further declared and agreed, Waver of peby and between the said parties to these presents, that in case it shall happen that the said intended building shall be damaged, burnt down, or destroyed by, or by means of fire, storm, or tempest, at any time before the same shall be completely finished and fit for the habitation of the said (employer), then, and in such case, the penalty to be incurred for not finishing the said building, on or before the said day of next ensuing, shall not be forfeited or become payable by the said (builder), his executors, or administrators, any thing hereinbefore contained to the contrary thereof in anywise notwithstanding, but no such accident or event shall be deemed or construed to effect a revocation, annulment, or suspension of the contract hereby entered into, with respect to the erecting and completing the said house and works, any further or otherwise than may regard the time hereby limited for completing the same."

may

of

If the materials are to be found by the lessor, there be added, "PROVIDED ALSO, and it is hereby further declared and agreed by and between the said parties to these presents, that in case any the works hereby covenanted and agreed to be done, performed and executed by the said (builder), his executors, or administrators, shall be stopped, hindered, or prevented by reason of the want of bricks, timber, lime, stone, or any other materials to be supplied for the same by and at the expence of the said (employer), his executors, and administrators, and the said (builder), his executors, and administrators, shall prove to the satisfaction of the said surveyor that such stoppage, hindrance, or prevention, was occasioned by such want of bricks, timber, lime, stone, or other materials as aforesaid, then, and in every such case, the time hereinbefore limited for the finishing and completing such several works as aforesaid, shall be extended without the incurring the said penalty in respect thereof, to so long a time after the said as such works and buildings shall have been so stopped, hindered, or prevented from proceeding, by reason of such want of bricks, timber, lime, stone, or other materials as aforesaid, and so from time to time, as often as any such stoppage or hindrance shall take place, but not for any longer time, or on any other account or pretence whatsoever."

day of

Materials found by employer.