ENGINEERS AND THE LAW OF NEGLIGENCE 55 



owner asks, as a rule, for an estimate of the cost at this stage 

 of the work. It is a question for a jury whether it is a 

 condition, express or implied, of the contract that the estimate 

 shall be reasonably near the actual cost. (Nelson v. Spooner, 

 1861, 2 F. & F. 613.) 



In Moneypenny v. Hartland, 1826, 2 C. & P. 379, the 

 plaintiff was employed as an architect by a committee to build 

 Mythe Bridge across the Severn. In estimating for the erec- 

 tion of the bridge and the approaches thereto, he relied on 

 the be^Higs" taken by a surveyor who had been previously 

 employed by the committee, and took no steps to ascertain for 

 himself the character of the ground forming the site of the 

 intended works. The soil proved bad for the foundations, and 

 it turned out that much deeper foundations were necessary 

 than the plaintiff had anticipated. It was held that he could 

 not recover his fees. Best, C. J., in giving judgment said : 

 " If a surveyor delivers an estimate greatly below the sum at 

 which a work can be done, and thereby induces a private 

 person to undertake what he would not otherwise do, then I 

 think he is not entitled to recover his fees. I think it is of 

 great importance to the public that gentlemen in the situation 

 of the plaintiff should know that if they make estimates, and 

 do not use all reasonable care to make themselves informed, 

 they are not entitled to recover anything." (For another 

 case illustrating the liability of an architect for negligence, 

 see Columbus Co. v. Clowes, at p. 15, ante, Chap. II., 9.) 



8. Negligence in not certifying. If an engineer does 

 not certify, and the employers take advantages of his failure 

 to do so in order to escape liability under the contract, 

 there is one case which decides that, the contractor may 

 sue for and obtain his money. In Kellett v. New Mills 

 Urban District Council, 1900, 2 H. B. C., 329, a contractor 

 brought an action for the balance of the price of work done 

 under a contract and for extras. The defendants, in answer 

 to the claim, alleged that no final certificate for the contract 

 had been made out by the engineers, and that the engineers 

 had not certified that the whole was in a good and substantial 

 state of repair or delivered up to their satisfaction as executed 

 in compliance with the contract. By way of reply to this 

 defence, the contractor alleged that he had done all the work 



