148 THE LAW AFFECTING ENGINEEES 



was thus stated in Wadsivorth v. Smith (uH supra) : " Where by 

 an agreement the right of one of the parties to have or to do a 

 particular thing is made to depend on the determination of a 

 third person, that is not a submission to arbitration, nor is the 

 determination an award ; but where there is an agreement 

 that any dispute about a particular thing shall be inquired of 

 and determined by a person named, that may amount to a 

 submission to arbitration, and the determination, though in 

 the form of a certificate, may be an award." 



9. Powers of the engineer limited by the contract. The 

 powers of the engineer are strictly limited by the terms of the 

 contract. In Northampton Gas Light Co. v. Parnell (supra), 

 a contract for the erection of a gasholder tank provided that 

 the contractor should commence and finish the work within 

 three months, subject to the forfeiture of a certain sum if he 

 failed. Two sureties were made parties to the contract, the 

 condition of their obligation being that if the contractor did 

 not perform his covenants which should be subsisting and not 

 annulled, they would pay to the employers such sum, not 

 exceeding 300 as liquidated damages, as the employers' 

 engineer should adjudge to be reasonable. The contractor 

 having failed to carry out the work in accordance with the 

 contract, the employers expelled him, and employed others to 

 do the work. Subsequently, and in spite of protests made by 

 the defendant and the sureties, the engineer adjudged that the 

 sum sued for was due in respect of the breach of contract. 

 The employers sought to recover this sum from the contractor, 

 and, in the alternative, from the sureties. By way of answer 

 to the claim it was contended that inasmuch as the employers 

 had expelled the contractor they had revoked what was really 

 a submission to arbitration. The defendant, therefore, 

 sought to dispute the facts upon which the engineer had acted. 

 In giving judgment, Maule, J., said : " The duty of the 

 engineer in this case is only to decide the proper sum to be 

 paid by the defendant in case he makes default in the execu- 

 tion of the contract; he is not to determine whether the 

 covenants are subsisting or broken, or to what extent they 

 have been broken, but only to ascertain an amount of an 

 uncertain and not necessarily a disputed matter. Assuming 

 the contractor to have made default, the engineer is to say, 

 within certain limits, what he ought to pay." 



