BILLS OF QUANTITIES 111 



himself liable for the taking out of the quantities, he is not so 

 liable (per Grove, J., in Young v. Blake, 1887, 2 H. B. C. p. 115). 

 The builder cannot divest himself of his liability to the quan- 

 tity-surveyor by taking an assignment of the property from 

 the building-owner (Mellor v. Brittain, 1900, 16 T. L. E. 465). 

 Nor will abandonment of the contract release a builder who 

 has expressly contracted to pay the fees of a quantity-surveyor. 

 In an Irish case (McConnell v. Kilg alien, 1878, L. E. Ir. 2 C. L. 

 119) a builder agreed to pay a surveyor for quantities in con- 

 nection with a projected building. Payment was to be made 

 out of the first instalment. He subsequently abandoned the 

 building contract. In an action for fees by the surveyor, it 

 was held that there was an implied agreement by the builder 

 to proceed with the contract, and that, having made per- 

 formance impossible by his own act, he was bound to pay for 

 the quantities furnished. Nor was it a condition precedent 

 that the first instalment under the contract should be 

 previously paid. 



10. Amount of quantity- surveyor's fees. Where the 

 amount of fees for taking out quantities is not settled before- 

 hand, it will be for the Court to decide what is reasonable 

 remuneration. In Gwyther v. Gaze, Times, Feb. 8, 1875, 

 a jury having found as a fact that the architect had power to 

 employ a quantity-surveyor, the judge was asked to decide the 

 question of remuneration. He held that an alleged custom to 

 pay 2J per cent, on the lowest tender was unreasonable, and 

 he awarded 1J per cent. It may be mentioned, in this con- 

 nection, that Eyde's scale is not necessarily applicable in all 

 cases ; but if remuneration ought to be assessed in accordance 

 with that scale it will be awarded. (See Stenning v. Mitchell, 

 Emderis Building Contracts, 661.) 



