84 THE LAW AFFECTING ENGINEEES 



33. Summary of the law as to performance and completion of 

 contracts. The following principles may be deduced from the 

 various cases decided with reference to completion. 



(a) Where the contract is to complete a definite piece of 

 work, nothing can be recovered until actual completion. 



(b) It is no excuse for non-performance that the work or 

 part of it is impracticable. 



(c) Where, before actual completion, the contractor definitely 

 refuses to carry out the work, he can be sued at once as for 

 breach of contract (Plochster v. De la Tour, 1853, 2 E. & B. 

 678). 



(d) Where the employer puts it out of the power of the 

 contractor to complete the work in accordance with the con- 

 tract, the contractor may sue for the price of what he has 

 done as on a quantum meruit (Cutter v. Powell, 2 Sm. L. C. 

 llth Ed. 9 et seq.). And he may also recover damages in 

 respect of the loss occasioned by the act of the employer 

 (Planche v. Colburn, 1831, 8 Bing. 14). As to interference by 

 ordering extras, see Chap. XIII., 5, post. 



(e) Where delay is caused by the act of the employer in not 

 giving possession of the site, the contractor may recover 

 damages in respect thereof. If no specific time for giving 

 possession is mentioned, the law implies that it will begin 

 within a reasonable time (Freeman d Son v. Hensler, 1900, 64 

 J. P. 260). 



(f) If the contractor is delayed in carrying out the contract 

 by some act of the employer, he cannot be held liable for the 

 penalties prescribed by the penalty clause in the contract 

 (Holme v. Guppy, 1838, 3 M. & W. 387). 



(g) Where the contractor after part performance fails to 

 complete, the employer may treat the contract as rescinded 

 and maintain an action for damages. In such a case the 

 contractor has no lien on the subject-matter of the work for 

 the money which he has expended (Wallis v. Smith, 1882, 21 

 Ch. D. 243). 



(h) Where there has been part performance, and a refusal 

 by the contractor to complete, the mere fact that the incom- 

 pleted work remains on the employer's land does not import a 

 promise by him to pay for it (see Sumpter v. Hedges, 1898, 

 1 Q. B. 673). But where the employer, without the consent 

 of the contractor, enters upon the work and does it himself, 

 the law will imply a promise by him to pay for that which has 



