90 THE LAW AFFECTING ENGINEERS 



reference to old materials, it seems that the contractor will be 

 under an implied obligation to clear them away. There is no 

 English case directly in point, but the principle has been laid 

 down in several American cases. In one of these a contract 

 provided for the construction of a wall at so much per cubic 

 yard. Nothing was said about the excavations for the wall. 

 It was held that no extra pay could be recovered for making 

 them (Shipman v. District of Columbia, 1886, 119, U.S. 12 

 (Davis) 148). 



3. Forms of clauses relating to old materials. To prevent 

 the wholesale removal of sand and gravel, the following clause 

 may be used : " The contractor is not to perform any 

 excavation upon the site for the purpose of obtaining gravel or 

 sand other than such as is shown or implied by the drawings." 



The following is a convenient form of clause relative to a 

 bridge : 



" The existing bridge to be pulled down and materials 

 stacked where directed. None are to be removed from the 

 premises, and the contractor in making his estimate is not to 

 count them in as usable except the bricks for footing and 

 concrete, and any that are used otherwise are to be allowed 

 for, and their value deducted from the price paid as new 

 materials." 



4. Property in old materials. The next problem for 

 solution is Who is entitled to the old materials on the site 

 where new buildings or works of any other description are to 

 be erected? This is a question which is often asked in 

 practice ; it is important for the contractor to know the correct 

 answer. Sometimes, of course, the matter is provided for in 

 the contract entered into between the parties ; and to avoid 

 the possibility of dispute it is always best to insert a clause 

 dealing with old materials. Such a clause may serve to dis- 

 abuse the mind of a contractor ; for in spite of a common 

 belief to the contrary effect, it is fairly clear that an obligation 

 upon a contractor to clear away old materials does not 

 necessarily vest those materials in him. Again, where a 

 contractor is bound by his contract to make an excavation, 

 the materials excavated do not necessarily become vested in 

 him. On the contrary, if a contractor make use of materials 

 supplied to him, the employer may set off their price against 



