166 THE LAW AFFECTING ENGINEEKS 



The Admiralty levied a penalty of 1,000. In the course of a 

 few months it was found that this particular vessel was the 

 only one of the lot that did not break down, and always gave 

 satisfaction. Under the circumstances, the enforcement of 

 the penalty clause was such sharp practice that the money 

 was repaid to the builders. These illustrations serve to show 

 that, even where a contractor departs from his specification 

 from sheer honesty of purpose, he is still liable to be mulcted 

 in penalties. 



8. Interference by employer. It is a general principle 

 which is consonant with justice, that where delay is caused 

 by the intervention of the employer a waiver of the penalty 

 clauses will be implied. Thus when the employer (as must 

 often happen) during the progress of the work directs altera- 

 tions to be carried out within a reasonable time, and these 

 alterations are so mixed up with the work contracted for that 

 it is impossible to separate them, a waiver of the penalty 

 clause may take place. In Thornhill v. Neats (1860, 8 

 C. B. N. S. 831), the plaintiff agreed to build six houses by a 

 certain day, and was placed under penalty if they were not 

 completed. Before the date fixed for completion, it was 

 agreed that the plaintiff should perform other work in and 

 upon the houses this additional work to be done within a 

 reasonable time. In an action brought by the builder for 

 work and labour done, the building-owner set up, in answer, 

 a claim for penalties for non-completion within the time 

 specified. It was held, however, that there was a good legal 

 answer to the claim for penalties on the ground that the 

 defendant had in effect waived the penalty clause by agreeing 

 that the entire work should be done within a reasonable time. 



Again, in Russell v. Sa da Bandeira (1862, 13 C. B. N. S. 

 149), a clause respecting penalties, in a contract for the build- 

 ing of a ship, imposed a penalty of 5 a day on the ship- 

 builder for every day after a certain day if the ship should 

 not be then delivered. The ship was not delivered until long 

 after the day appointed, but a large portion of the delay arose 

 from the interference of the building-owner or his agent. It 

 was decided that no sum in the nature of a penalty was 

 recoverable by the employer. 



Again, in Dodd v. Churton (1897, 1 Q. B. 562, noted, 

 Chap. XIIL, 5, ante), where the delay was caused by extras 



