THE FEES OF AN ENGINEER 13 



enable the defendant employer to do what was required. It 

 is manifest, however, that in most cases where an engineer is 

 employed, the employer relies on his professional skill and 

 judgment ; and if it should turn out that the work is entirely 

 useless, an action for fees will be unsuccessful. For instance, 

 in Duncan v. Blundell, 1820, 3 Stark. N. P. 6, the plaintiff 

 erected a stove for the defendant, but owing to some defect 

 the stove could not be used. In an action for work and labour 

 done, the judge entered a non-suit, and held that where a 

 person is employed on a work of skill, the employer buys both 

 his labour and judgment, and that he ought not to undertake 

 the work if it cannot succeed, and that he ought to know 

 whether it will succeed or not. It is otherwise if the employer 

 uses his own judgment instead of that of the workman. For 

 instance, if an inventor were to employ an engineer to draw 

 plans and designs for some new-fangled machine, and the 

 engineer executed the commission, he could not be held 

 responsible if the invention turned out to be a hopeless failure. 

 (See, e.g., the case of Turner v. Garland, 1853, 2 H. B. C. 2, 

 noted Chap. V., 4, post.) 



The kind of duty which the engineer or architect may be 

 reasonably expected to fulfil before he can successfully sue for 

 his fees is illustrated by the following case. The plaintiff was 

 employed as architect by the committee of the subscribers of 

 certain funds to build a bridge across the Severn. In an 

 action for fees for preparing plans, specifications, and extras, 

 it was proved (1) that the plaintiff was a subscriber, and 

 (2) that owing to his having omitted to examine the ground 

 where the foundations were to be laid he was led into an error 

 in his estimate, which involved the committee in an additional 

 expenditure of 1,600. It was held by Abbott, C.J., that the 

 architect could not recover for the plans, etc., of the works, 

 and that being a subscriber or a shareholder he was a partner 

 and could not maintain an action against the committee, 

 although he subscribed as architect and engineer. (Money- 

 penny v. Hartland, 1826, 2 C. & P. 378.) See also Nelson v. 

 Spooner, 1860, 2 F. & F. 613, noted post, Chap. V., 7. 



7. Fees when the employer fails to continue the employ- 

 ment. The fact that an employer fails to go on with work in 

 respect of which he has employed an engineer is a matter for 

 which the engineer cannot be held responsible. In Burr v. 



