PENALTIES AND BONUSES 167 



ordered by the employer, the builder was held not liable for 

 penalties. 



9. Delay in commencing work. Similarly if the time of 

 commencing the work is delayed, through no fault of the con- 

 tractor, he will not be liable to pay penalties. Thus in the 

 case of Holme v. Guppy (1838, 3 M. & W. 387) the plaintiffs 

 contracted to do for 1,700 the carpenters' work in a brewery 

 which was being built for the defendants. The work was to 

 be completed within four and a half months from the date of 

 the contract, and in default of completing within the said four 

 and a half months the plaintiffs were to forfeit 40 per week 

 for each week during which the carpenters' work was delayed 

 beyond the 31st day of August, 1863 the expiration of the 

 four and a half months. The defendants did not give the 

 plaintiffs possession till four weeks after the contract was 

 made. The plaintiffs did not complete till five weeks after 

 31st August. The defendants claimed to set off five penalties 

 of 40 against the last instalment of the contract price. It 

 was decided by the Court that they could not do so ; that the 

 undertaking to complete was put an end to by the defendants' 

 default in not giving the plaintiffs possession at the proper 

 time ; and that there was no evidence of a new contract to 

 complete at any other time than the 31st August. 



In an American case (Mansfield v. New York Central, etc., 

 Ey. Co. (1886), 102 N. Y. 205), certain contractors agreed 

 to erect an elevated railway on a foundation to be prepared 

 by the employers. It was held that the proper prepara- 

 tion of the foundations was an indispensable condition 

 precedent to performance, and if the employers made default, 

 the contractor was not only excused from exact performance, 

 but had the right either to rescind, or, if he elected to continue 

 the work, to recover damages for the expense to which he had 

 been put by the delay and default of the employer. 



Again, where there was delay in setting out the ground for 

 building, and in providing the necessary plans, the builder 

 was excused. (Roberts v. Bury Improvement Commissioners, 

 1870, L. R. 5 C. P. 310. See also Wells v. Army and Navy 

 Co-operative Society, infra, 11.) 



10. Effect of a strike and advantage of strike clause. 

 Subject to what has been stated above, the contractor or 

 manufacturer is liable to pay penalties for delay, even when 



