CERTIFICATES AND PAYMENT 157 



16. Certificate condition precedent to payment. If an 

 engineer's certificate is a condition precedent to the con- 

 tractor's right to payment, the contractor, on abandoning the 

 contract, is not entitled to payment for work done without 

 producing a certificate of the engineer, unless he can show 

 that the certificate is collusively withheld (McDonald v. 

 Workington Corporation, 1893, 2 H. B. C. 240). Dealing 

 in that case with the position of a surveyor, Lord Esher 

 said : " Where a surveyor is put into the position to give a 

 certificate, I do not say that he is an arbitrator, but he is an 

 independent person. His duty is to give the certificate 

 according to his own conscience and according to what he 

 conceives to be the right and truth as to the work done, and 

 for that purpose he has no right to obey any order or any 

 suggestion by these people who are called his masters. For 

 that purpose they are not his masters. He is to do that on 

 his own conscience wholly independent of them, and to act 

 fairly and honestly as between them and the contractor." 



17. Payment contingent on quality of work. Care should 

 be taken to make payment contingent not only on the 

 character of the work, but on the character of the machinery 

 supplied for the purpose of fulfilling the contract. In Parsons 

 v. Sexton, 1847, 4 C. B. 899, a manufacturer agreed " to 

 provide a fourteen-horse engine and sixteen-horse boiler, 

 with fittings and everything complete, for 260, and to deliver 

 and erect the same at the mill at Croydon, and to set the 

 same to work." It was a further term of the agreement that 

 payment of the last instalment should be made when the 

 purchaser was " satisfied with the work." It was held that 

 these words related to the work of erecting the engine, and 

 not to the price of the engine itself. 



The same point was illustrated in Ripley v. Lordan, 1860, 

 2 L. T. N. S. 154. There the plaintiff agreed to make for 

 the defendant a machine for cutting glue, according to a 

 drawing supplied, for 20. The following was inserted in 

 the agreement: " Strong and sound workmanship to the 

 approval of Mr. Jefferies," Mr. Jefferies being the defen- 

 dant's engineer. The machine was duly made according to 

 the drawing, but the defendant refused to pay the price, 

 on the ground that the machine was not adapted to cut the 



