CERTIFICATES AND PAYMENT 143 



the engineer usually expresses his decisions on all these 

 different questions. 



The task of granting the certificate is one of the most 

 important duties which fall to the lot of the engineer. 



2. Necessity for writing. As a rule the engineer authorises 

 the contractor to be paid and otherwise expresses his approval 

 by means of a certificate. To save trouble and to avoid 

 disputes, the contract between the employer and the contractor 

 should provide for a written certificate. Otherwise a mere 

 verbal statement may be sufficient. In Elmes v. Burgh Market 

 Co., 1891, 2 H. B. C. 183, a contract provided that " the 

 contractor shall receive payment for his contract at the rate of 

 80 per cent, for the works completed on the surveyor's 

 certificate of completion, and the balance at the end of the 

 term of maintenance, less deductions that may be made in 

 accordance with the terms of the contract, and on the surveyor 

 certifying that the whole of the works are in a complete and 

 satisfactory state." It was held that a certificate within the 

 meaning of this clause might be given orally by the surveyor. 

 (See also Roberts v. Watkins, 1863, 14 C. B. N. S. 592.) 



Where a written certificate is expressly required, the con- 

 tractor is helpless unless it is forthcoming. He cannot sue 

 the employer for the price of any portion of the work which 

 he has done, unless, as will shortly be explained, he can show 

 that the certificate has been withheld by the engineer, acting 

 in collusion with the employer. (As to fraud, see 14, infra.) 



3. " Progress " certificates. Certificates are either " pro- 

 gress " or " final." Progress certificates are given from time 

 to time by the engineer while the work is proceeding, in order 

 to enable the contractor to obtain some part of the payment 

 which is due to him. These certificates " are simply state- 

 ments of a matter of fact namely, what is the weight, and 

 what is the contract price of the materials actually delivered 

 from time to time upon the ground ; and the payments made 

 under these certificates are altogether provisional and subject 

 to adjustment or to readjustment at the end of the contract " 

 (Tharsis Sulphur and Copper Co. v. McElroy, 1878, 3 A. C. 

 1045, per Lord Cairns). 



The mere fact, therefore, that the engineer, by granting a 

 progress certificate during the course of the work, appears to 



