AGREEMENTS.

Build.

hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree, with and to the said (builder), his executors, administrators, and assigns, that he the said (employer), his heirs, executors, or administrators, shall and will well and truly pay, or cause to be paid unto the said (builder), his executors, administrators, or assigns, the sum of £ of lawful money of the United Kingdom of Great Britain and Ireland, of English value and currency, in manner following, that is to say, the sum of £75 per cent. on the amount of the works as the same shall proceed or go on, in sums not less than £ at each payment, and which said per centage shall be ascertained by the said surveyor, and upon his certificate of the same being produced to the said (employer), his heirs, or assigns, shall be paid to the said (builder), his executors, administrators, or assigns, accordingly (1). AND that the accounts of the said works aonths after the shall be adjusted and finally settled, within three months after the work is finished. said works shall have been completed and finished, in the manner aforesaid, and when, and as soon as the said accounts shall be adjusted and finally settled, the rest and residue of the said sum of

And the whole

vithin three

Materials to be Provided upon

notice.

Employer to find money to pay weekly wages of labourers.

(1) If the materials be found by the employer, add,

“AND FURTHER, that the said (employer), his executors, and administrators, shall and will find and provide, and cause to be delivered, at the place where the said messuage or dwelling-house is hereinbefore covenanted to be erected, and that from time to time, as and when the same shall be required and wanting, reasonable and sufficient notice being at all times, and from time to time given by the said (builder), his executors, or administrators, all such bricks, lime, sand, stone, timber, nails, and other materials as shall be necessary and proper for building and finishing the said messuage or dwellinghouse.

There may be here added if such be the agreement,

AND ALSO that he the said (employer), his executors, and administrators shall and will provide and supply the said (builder), his executors and administrators, weekly and every week, during the progress of the said works, and until the same shall be finished, with all such sum and sums of money, as shall be necessary for the purpose of paying and discharging the wages of all workmen and labourers, that shall from time to time be employed in or about the said works, the amount thereof to be ascertained in the manner hereinbefore provided."

ச

and also such further and other sum and sums of money, as may accrue and become due, for or on account of extra works (1), shall be by him the said (employer), his heirs and assigns, well and truly paid to the said (builder), his executors, administrators, or assigns (2). AND LASTLY, for the true performance of all and singular the articles, clauses, agreements, matters, and things, hereinbefore mentioned, the said (builder) doth bind himself, his heirs, executors, and administrators, in the penal sum of £ IN WITNESS, &c.

AGREEMENTS.

Build.

(3) Penalty.

(1) An employer deviating from the original plan of elevation, does not vacate an agreement for completing the contract for a specified sum; but only subjects himself to the payment of such further sum as the extra work may amount to. Robson v. Godfrey and Another, Holt's Ni. Pri. Cas. 236; Pepper v. Burland, Peak, 103.

(2) If the materials be found by the employer, it will be proper in order to protect him from any loss which may happen from their being improvidently used, to insert the following proviso,

"PROVIDED ALWAYS, and it is hereby mutually declared and agreed, by and between the said parties hereto, in order to prevent and protect the said (employer), his executors and administrators, from not only all unnecessary waste in the converting and using up of the materials, but also by the loss thereof, by the pilferage of the workmen to be employed in the said building, or by any other ways and means, that he the said (builder), his executors and administrators, shall be accountable for all the materials which shall be delivered for the said building at the place where the same is intended to be erected, and shall be charged with the respective quantities of such articles so delivered, and credited with so much only as shall be actually used and expended in, about, and upon the said building and works, together with a reasonable allowance for waste in the working up of the same, and in case there shall be any balance or deficiency of materials, between the respective quantities delivered and the respective quantities used and expended, and allowed for waste as aforesaid, then the said (builder), his executors and administrators, shall be accountable for, and charged with all such balance or deficiency, at and after the rates and prices respectively at which the said materials were purchased and laid in.

Extra works.

Builder to be acmaterials when

countable for all

delivered.

ance decreed,

(3) Notwithstanding a penalty be annexed to the non-performance of Specific performan agreement, the court will decree a specific performance if applied to notwithstanding for that purpose, and not allow the party to avoid performance by for- penalty. feiture of the penalty. Jenkyns v. Keymes, 1 Lev. 150. 237; 1 Ch. Ca.

AGREEMENTS.

Build.

Specific per.

103; Howard v. Hopkins, 2 Atk. 371; unless in the case of a mere volunteer; Stapleton v. Stapleton, 1 Atk. 2; Hamilton v. Grant, 3 Dow. 53; or the subject of the agreement be a chattel or mercantile interest; Buxton v. Lister, 3 Atk. 383; Underwood v. Heathcox, 1 Ves. 279. Nutbrown v. Thornton, 10 Ves. 161; where the remedy at law is more standing penalty. expeditious and equally effective; and see ante, Vol. I. No. I. p. 15, n.

formance decreed notwith

(30).

AGREEMENTS.

Build.

No. XI.

*An Agreement for building several Houses, or a new Street or Row (1).

ARTICLES of agreement made and concluded the

day of

vation.

, in the year BETWEEN (the employer), of, &c. of the one part, and (the builder), of, &c. of the other part. Whereas the said (employer) is possessed of a piece of ground situated, &c. and containing, &c. upon which he is desirous of building a row or street, (2) and hath contracted with the said (builder) for building and completing the same, in the manner and upon the terms and conditions hereinafter mentioned. Now THESE PRESENTS WITNESS, That the WITNESS. Builder agrees said (builder) for himself, his heirs, executors, and administrators, doth to build. hereby covenant, promise, and agree with and to the said (employer), his executors, administrators, and assigns, that he the said (builder), his executors or administrators, shall and will at his and their own proper cost and charges erect messuages or dwelling-houses in one continued line or row upon the said piece or parcel of ground according to the elevation delineated in the ground-plot or plan Plan of elethereof, drawn in the margin of these presents, and with such proportions of brick, and such scantlings of timber, heights and numbers of stories, as hereafter is mentioned, that is to say, The cellars and all other stories of the said messuages to be of such heights as is set forth for the second rate of buildings, in the act of Parliament, passed in the entitled "An Act", &c. the fore fronts and back fronts to be two bricks and a half thick to the top of the cellar-floor, the first and second stories to be two bricks in the thickness, the third story above ground to be one brick and a half in thickness, and the garret one brick in thickness; the partition walls between house and house to be two bricks in thickness at the least to the top of the cellar stories, and from thence to the garret-floor to be one brick and a half in thickness at the least, and above the garret-floor one brick in thickness; the brick work in the fore fronts to be wrought with stock bricks not rubbed, the

year of the reign of

(1) See notes to No. X. ante, p. 59.

,

(2) See also ante, Vol. IV. No. IV. (p. 32.) and No. XV. (p. 198.), where other plans of buildings, &c. will be found.

Square.

AGREEMENTS

Build.

Penalty and arbitration.

to

straight arches in the front to be a brick and a half, and to rub the bricks
round the jambs of the window in the brick work of the fore fronts,
and to work a fasia, at every story of each house in the front, with
O G at the foot of it; that the said bricks shall be a good
and sufficient well burnt brick, and the morter well wrought and tem-
pered, and made of good lime and sand or such other stuff as the
said (employer) or his surveyor shall appoint; that there shall be a
balcony of wood or iron to the front of every house, which shall not
project more nor less than three feet and a half beyond the upright
of the said houses, with cantiliver cornice all along the said front
street according to a model thereof to be signed by the
said (employer) or his surveyor. There shall also be, &c. &c.
(describing the particulars.) And that no timber shall be laid within
twelve inches of the fore sides of the chimney jambs, and that all
joices on the back of any chimney shall be with timber at six inches
distance from the back, and that no summers or girders shall lie over
the heads of any doors or windows, and that all the ends of timber
being in the wall shall be laid in loom, that all mantle trees shall
be oak timber, and not less than seven and nine inches, that the tassels
shall be of oak three inches thick, and to reach within four inches of
the back of the chimney, &c. &c. And shall and will make a common
sewer down and along the middle of the said street of
feet
circumference, with good
bricks. And also shall and will make
drains from the said houses into the said sewer. And that no house
of office shall have issue into the same. And also shall level and
pave
the said street so far as to the middle of the same, and shall pave
along the said ground four feet in depth from the upright of the said
walls of the said building, with Purbeach or Swindon stone, de-
scending one inch at least from the wall; and set up oaken posts of
seven inches square, and three feet and a half above the ground, twelve
feet each from the other, all along before the said ground in the street,
at five feet distance from the upright of the said wall. And make
kennels all along the said street, next the said posts. And that all
and every of the said houses shall be well and properly glazed, slated,
and plastered, and in all things completely finished as to brick, car-
penters', plasterers', smiths', glaziers', plumbers', painters', and other
work whatever, and made fit for habitation on or before the
day of
next ensuing the date of these presents. AND,
&c. (add covenant by employer to pay (1), &c. and penal and arbi-
tration clauses.) (2)

(1) See ante, p. 62, and post. p. 70.

(2) See ARB. ante, p. 27. and PENALTY, ante, p. 65. and post. p. 70.