ENGINEERING CONTRACTS DEALT WITH 73 



contract. There are but few cases in the reports which draw 

 attention to customs affecting engineers and engineering con- 

 tracts. One custom may, however, be mentioned : there is a 

 usage of the building-trade that the builder whose tender is 

 accepted is liable to the quantity- survey or for the amount due 

 for taking out the quantities ; but that, if no tender is accepted, 

 the building-owner or architect is liable. This was held to be 

 a reasonable usage, and therefore valid (North v. Bassett, 1892, 

 1 Q. B. 333). A further statement of the facts of this case 

 will be found in Chap. IX., 9, post. 



15. Customs and usages held bad. The following customs 

 and usages relating to engineering and similar contracts have 

 been held bad : 



(a) A custom to the effect that an architect is entitled to 

 charge a percentage on the estimated probable cost of a 

 building (Gwyther v. Gaze, 1875, 2 H. B. C. 21); 



(b) A custom or usage to the effect that an architect who 

 has been dismissed and paid for his plans, may retain them 

 (Ebdy v. McGowan, 1870, 2 H. B. C. 18); 



(c) A usage to the effect that a person asking for tenders 

 for the performance of works implicitly warrants that the 

 works can be successfully executed according to the plans and 

 specification (Thorn v. Mayor of London, 1876, 1 A. C. 120) ; 



(d) A custom or usage to the effect that an estimate for 

 work to be done has not the same legal effect as a tender 

 (Croshaw v. Pritchard, 1899, 2 H. B. C. 300). 



16. Implied terms in contracts. In addition to the express 

 terms which are set out in a contract, the parties may also be 

 bound by implied terms. But an implied term or promise can 

 only exist in law where there is no express promise between 

 the parties dealing with the same point (Cutter v. Powell, 1795, 

 6 T. R. 320, 324). Thus no party can be bound by an implied 

 contract, when he has made an express contract dealing with 

 the same subject-matter (see Jones v. St. John's College, 1870, 

 L. R. 6 Q. B. 115). A good example of an implied term or 

 condition is that where a party enters into an agreement, 

 which can only take effect by the continuance of a certain 

 existing state of circumstances, there is an implied engage- 

 ment on his part that he will not, of his own mere motion, do 

 anything to put an end to that state of circumstances under 



