ENGINEERING CONTRACTS DEALT WITH 83 



a plan to be agreed on, provided they were completed in two 

 months. No plan was agreed on, and after the condition was 

 thus broken, the landlord encouraged the tenant to proceed 

 with the work. This the tenant did. It was held that having 

 done the work, the tenant might recover as for work and 

 labour done on an implied promise arising out of so many of 

 the facts as were applicable to the new agreement. Things 

 which are alleged to be extras may also be found to be the 

 subject of a new contract (see Chap. XIL, 7, post). 



31. Work superior to contract. If a contractor agrees to 

 make an article of certain materials for a stipulated price, but 

 puts in materials of a better kind, he is not at liberty on that 

 account to charge more than the stipulated price, nor can he 

 require the article to be returned because the buyer will not 

 pay an increased price on account of the better materials 

 (WUmot v. Smith, 1828, 3 C. & P. 455 ; and see also 23, ante, 

 and the case of Tharsis Sulphur and Copper Co. v. M'Elroy, 

 1878, 3 A. C. 1040, noted post, Chap. XI., 3). 



32. What condition implied as to workmanship. Where a 

 man contracts to make a machine which will effect a particular 

 purpose he thereby undertakes that the machine will be 

 suitable ; and if the employer comes forward to suggest altera- 

 tions the contractor must beware lest those alterations interfere 

 with the capacity of the machine. In Hall v. Burke, 1888, 

 3 T. L. R. 165, the plaintiff sought to recover the price of a 

 marble-cutting machine which he had built to the defendant's 

 order. After the contract was made the defendant ordered 

 certain alterations which it was alleged caused the machine to 

 break down. It was held on the facts that even if the cus- 

 tomer had ordered alterations this did not entitle the plaintiff 

 to escape liability. The Master of the Rolls said : " When the 

 manufacturer is to make a machine fit for a particular purpose, 

 and it is left to his skill to make it, even though the customer 

 orders alterations, he is responsible for the machine under 

 the contract. If the customer were then to insist upon them, 

 the contract would be altered, and the machine would be made 

 according to a given plan." The fact that the employer pays 

 the agreed price does not necessarily imply that he has waived 

 a claim for defects, even if he was aware of those defects at 

 the time of payment (see Chap. XVI., post, 14 et seq.). 



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