OLD MATERIALS ON THE SITE 91 



the amount due under the contract. For instance, in one case 

 (Newton v. Forster, 1844, 12 M. & W. 772) the plaintiff con- 

 tracted to do certain work for the defendant and to find the 

 materials. The defendant supplied part of the materials 

 which the plaintiff made use of in the work. It was held that 

 the defendant was entitled to deduct the value of the materials 

 supplied by him from the contract price. 



5. Use of old materials in executing new works. In drawing 

 his specification the engineer often inserts a clause to the 

 following effect : " Materials on the site to be used as far as 

 possible." If a tender is made by a contractor on the basis of 

 such a specification, the engineer should take care to ascertain 

 whether the contractor has made any deduction in respect of 

 old materials. If the contractor, having made no deduction, 

 uses any of the materials, the engineer may set their value off 

 against the contract price ; and even if the contractor has 

 made a deduction, but has not informed the engineer of the 

 fact, there may still be a set-off. For instance, in a case tried 

 in 1867 (Harvey v. Lawrence, 15 L. T. N. S. 571), the plaintiff, 

 a builder, sued for the sum of 800, the contract price payable 

 on completion of the works. The architect had certified that 

 the work was completed. The contract contained the follow- 

 ing clause : "All old lead to be displaced by new is to become 

 the property of the contractor, who will make a due allowance 

 for the same." The defendant employer pleaded a set-off of 

 38, the value of old lead. It was held that as the contractor 

 could not prove that he informed the employer or the architect 

 that in making his estimate he had allowed for the value of 

 the old lead, the set-off was good. 



6. Form of clause providing for the use of old materials. 

 The following is a convenient form of old material clause : 

 " All materials upon the site or upon the space to be covered 

 by the buildings (or contract works) at the date of the contract, 

 and all materials and things excavated by the contractor from 

 the works shall remain the property of the employer until paid 

 for by the contractor. Such of them as shall be approved by 

 the engineer for the purpose of the works shall be paid for 

 by the contractor at a price to be named in his tender or, 

 if not named, to be ascertained by the engineer, and all other 

 materials, shall be removed by the contractor from or deposited, 



