ENGINEERING CONTRACTS DEALT WITH 87 



" Immediately." This word implies that the act to be done 

 should be done with all convenient speed (Thompson v. 

 Gibson, 1841, 10 L. J. Ex. 243). 



" Incombustible material." This phrase is used in the London 

 Building Act, 1894. It means a material which must be 

 wholly incombustible, and not merely fire-resisting (Payne v. 

 Wright, 1892, 1 Q. B. 104). 



"Latent defect" is a defect such as the greatest attention 

 would not enable a purchaser to discover e.g., the existence 

 of defects in a ship's bottom when sold afloat (Hellish v. 

 Motteaux, 1820, Peake 156). See further as to latent defects, 

 Chap. XIX., 6, post. 



"Liquidated damages." Where parties to a contract agree 

 that, in the event of default by either, a sum stated shall be 

 paid as " liquidated damages," the primary meaning is that 

 the sum named has been assessed between the parties (Wallis 

 v. Smith, 1882, 52 L. J. Ch. 154, per Cotton, L. J.). Yet if 

 the Court sees plainly that the stated sum is a penal sum then 

 it is treated as a penalty and only proved damages are recover- 

 able. (As to the distinction between "penalty " and liquidated 

 damages, see further Chap. XV., 3.) 



" Lowest tender" the. (See Chap. VIIL, 13, post.) 



" Machinery" This word implies the application of 

 mechanical means to the attainment of some particular end by 

 the help of natural forces. Operative machinery means 

 machinery with the potentiality of operating or doing work 

 (Chamberlayne v. Collins, 1894, 70 L. T. 217). 



" Omission." An omission to perform a duty involves the 

 idea that the person to act is aware that performance is 

 required or needful (London and South Western Railway v. 

 Flower, 1875, 1 C. P. D. 77). (For a clause relating to omis- 

 sions, see Form IIA., 01. 19 (a).) 



" Progress certificate" (See Chap. XIV., 3.) 



"Rebuild" Dealing with the word " rebuild" in Re 

 Walker, 1894, 1 Ch. 189, North, J., said: " Supposing most of 

 a house front were pulled down and a small part left and the 

 rest of the house was rebuilt, it could not be said that there 

 was not a rebuilding ; again, if the house were burnt and the 

 walls were left standing and made use of in erecting the new 

 house there would none the less be a rebuilding." 



"Repair." To "repair" means to make good defects 

 including renewal where that is necessary (Inglis v. Buttery, 



