BILLS OF QUANTITIES 107 



defendants, as quantity-surveyors and measurers, on certain 

 buildings of the value of 12,000. The defendants drew up 

 the bills upon which a builder made a tender, and the buildings 

 were ultimately completed in June, 1887, on which date 

 matters also came to an end as between the plaintiffs and the 

 defendants. As the plaintiffs were not satisfied with the way 

 in which the buildings had been executed, they sought to 

 blame the quantity-surveyors in some degree. They employed 

 another surveyor at an expense of 38. They then brought 

 this action claiming (1) certain papers of calculations which 

 had been drawn up by the defendants in preparing the bills ; 

 (2) for negligence in a clerical error in the calculation, owing 

 to which it was alleged that they had overpaid the builder to 

 the extent of about 130 ; and (3) the sum of 74 which had 

 been charged by the defendants for lithography. It was held, 

 as to (1), that the work having been completed, the plaintiffs 

 had no right to the papers or memoranda, nor to damages for 

 their detention. As to the charge of negligence (2), Mr. Justice 

 A. L. Smith said that as the mistake arose owing to a mere 

 clerical error on the part of a clerk who had not been proved 

 to be incompetent, the defendants could not be held respon- 

 sible. With regard to the charge for lithography (3), it was 

 held that although the defendants being the plaintiffs' agents, 

 the payment of any commission to the defendants was illegal 

 and improper, yet as it was agreed in this case the defendants 

 should employ their own lithographer, they might retain this 

 which was really a discount for cash. 



5. Whether bills of quantities part of contract. In order to 

 avoid making the bills of quantities part of the contract, a 

 clause is often inserted in the conditions providing that, " any 

 reference in the said conditions to the bills of quantities shall 

 not have the effect of constituting them part of the contract." 

 In the absence of such a clause, the bills and plans may be 

 put together for the purpose of defining the amount of work 

 which the contractor is to do under the contract ; and if, in 

 the course of carrying out the work, the contractor is called 

 upon to do anything more, he may be in a position to charge 

 for it as an extra (see Patman and Fotheringham v. Pilditch, 

 1904, Emderis Building Contracts, p. 674). It is obviously 

 impossible to know beforehand exactly how much material 

 will be required in order to carry out a particular undertaking. 



