56 THE LAW AFFECTING ENGINEEKS 



which he agreed to do under the contract. He also claimed 

 that the engineers were the servants or agents of the em- 

 ployers for the purpose of certifying the date of completion of 

 the works to be done by the contractor, and the amounts 

 payable on such completion. It was further alleged that 

 instead of determining the date of completion, or certifying 

 what was due, the engineers had wilfully, arbitrarily and per- 

 sistently refused to determine and certify either the date or 

 the amount, and that, in the result they were discharged from 

 their position as engineers. It was also urged that the defen- 

 dants took advantage of this conduct of the engineers so as to 

 prevent the contractor from receiving or recovering payment 

 of the amount due to him for the completed works. Fraud 

 was not suggested. A jury found that the works were com- 

 pleted ; that the engineers had failed to certify, and that the 

 defendants, being aware of such refusal, had taken advantage 

 of it so as to refuse or unreasonably delay payment. It was 

 held that the contractor could recover from the defendants 

 without a certificate. Mr. Justice Phillimore said : "I am of 

 opinion that the decisions are clear that where the employer 

 colludes with the engineer, surveyor, or valuer, it is right to 

 pass the engineer, surveyor, or valuer by, and to seek the 

 determination of the Courts as in an ordinary contract ; and I 

 see no difference between the misconduct of the engineer, 

 surveyor, or valuer being procured by the employer, and the 

 employer knowingly taking advantage of the man's original 

 misconduct. ... I think they knew here not merely that the 

 engineer was not certifying, but that he was going through the 

 process of pretended inquiry, which was almost worse than his 

 refusing to inquire." With all respect, the author ventures to 

 think that this decision can only be explained by saying that 

 the learned judge did, in effect, find that there was fraud on 

 the part of the defendants. For better or worse, a contractor 

 places himself in the hands of the engineer nominated by the 

 employer ; and unless there is fraud or collusion, the terms of 

 the contract cannot be ignored. As there is no wrong without 

 a remedy, the contractor can recover against the employer, or 

 else call upon the employer to appoint, or concur in the 

 appointment of an engineer who will grant the necessary 

 certificate. (An action for not granting a certificate will not, 

 however, lie against the engineer. See Chap. XIV., 10, 

 post.) 



