CERTIFICATES AND PAYMENT 147 



the person who has taken him for better and for worse (not as 

 architect, for that is the wrong ground to put the case on) 

 but as one whose opinion is a condition precedent to the 

 obtaining of a sum of money, cannot bring an action against 

 him for refusing to give the ground of his opinion, or to hear 

 evidence tendered to show that the opinion was wrong." (As 

 to the duty of an engineer in granting a certificate, see the 

 remarks of Lord Esher in the case of McDonald v. Mayor of 

 Workington, post, 16.) 



As it may be to the advantage of the parties that the 

 engineer shall give his reasons, the contract sometimes pro- 

 vides that in respect of all matters left to his decision, the 

 engineer shall, if required so to do by the contractor, give in 

 writing his decision thereon, and his reasons for such decision, 

 or if he shall withhold any certificate his reasons for so doing. 

 (See, e.g., 01. 29 of Form IIA., post.) 



7. What amounts to a certificate. The engineer should be 

 careful to draw up his certificates in a formal manner, as infor- 

 mality may lead to confusion. In one case (Morgan v. Birnie, 

 1833, 3 M. & Scott, 76) an architect checked the builder's 

 accounts and sent them to the building-owner, but did not 

 certify that the works were completed to his satisfaction. It 

 was held that the checking of accounts did not amount to a 

 final certificate. 



8. Whether a certificate is an " award." The question has 

 frequently arisen whether the engineer acts as an arbitrator in 

 the sense that his certificate, when given, really amounts to an 

 award. (For the meaning and effect of an award see Chap. XX., 

 28 et seq.) It seems, however, that the ordinary clause in 

 an engineering contract, providing that a certificate shall be 

 conclusive as to the work done, is not an agreement or sub- 

 mission to arbitration (Wadsworth v. Smith, 1871, L. R. 6 Q. B. 

 332), so that the certificate of the engineer or architect is not 

 an award, nor may it be examined as such (Northampton Gas 

 Light Co. v. Parnett, 1855, 15 C. B. 630). Nevertheless, 

 although an engineer's certificate may not be an award in the 

 true sense, the engineer, in exercising his powers, acts as an 

 arbitrator in the sense that he cannot be made liable for 

 negligence in granting a certificate. The law on the subject 



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