110 THE LAW AFFECTING ENGINEEES 



architect to take out quantities for a building about to be 

 erected. The defendant, a builder, tendered for the work upon 

 the basis of a specification, containing the following clause : 

 " To provide for copies of quantities and plans, 25 guineas, 

 to be paid to the surveyor," naming North, the plaintiff, " out 

 of the first certificate." The defendant's tender was accepted, 

 and he received the first instalment of the price of his work 

 from the building - owner. The quantity-surveyor sued to 

 recover the 25 guineas from the builder whose tender was 

 accepted. It was held that, by the usage of the building- trade, 

 the plaintiff was entitled to recover. Mr. Justice Mathew 

 pointed out that the result of the employment was that there 

 was not a contract by the building-owner to pay the quantity- 

 surveyor in any event, but that the latter was to be paid by the 

 builder if his tender was accepted. He also said : " What is the 

 usage which upon these facts it is sought to set up ? It is one 

 which I should have thought to be notorious : a usage that 

 the fees of the quantity-surveyor are paid by the builder whose 

 tender has been accepted by the building-owner. This is a 

 sensible and convenient usage ; it brings all the people 

 together, the builder, the building-owner, and the quantity- 

 surveyor, and they all assent to it. In the present case the 

 fact that this course was followed is corroborated by the 

 documents, which contain abundant evidence of a promise to 

 pay on the part of the defendant ; while the assent of the 

 plaintiff is clearly shown by his bringing this action." It is 

 important to notice that, in the circumstances just considered, 

 there is really no contract between the building-owner and the 

 quantity-surveyor. So that if the builder becomes bankrupt, 

 or for some other reason cannot pay the fees, the surveyor 

 cannot sue the owner (Young v. Smith, 1879, 2 H. B. C. 59). 

 As was pointed out by Mr. Justice Field in that case, the 

 employer or building-owner, in effect, says to the quantity- 

 surveyor : " I am going to ask if they will tender upon your 

 quantities, and what sum they will do the work for. It is not 

 intended that I shall pay you, but that the successful person 

 shall pay you. I will obtain a contractor who will enter into 

 an implied contract with you (the quantity- survey or), that if 

 I will add to the sum mentioned in the contract the sum due 

 to you, he (the builder) will pay you." Unless there is some- 

 thing binding the owner, some understanding between the 

 parties to be gathered from correspondence or words making 



