168 THE LAW AFFECTING ENGINEEES 



that delay is occasioned by matters over which he has no 

 control. Thus it was decided in the case of Budgett v. Bin- 

 nington d Co. (1890, 25 Q. B. D. 320) that prevention due 

 to causes other than the employer's intervention such as a 

 strike of workmen is not an excuse for failure to complete 

 within the proper time. This principle, and the frequency 

 with which strikes have in the past prevented the due fulfil- 

 ment of important engineering contracts, has given rise to 

 the insertion of a strike clause in every contract of import- 

 ance. It should be observed, however, that where there is 

 such a clause the strike may, nevertheless, be of so prolonged 

 continuance so as to alter the conditions of the contract and 

 the arrangements of the parties to it as to amount to a deter- 

 mination of the contract. (For the definition of a strike, see 

 Chap. VI., 84, ante.) 



11. Employer not to decide as to penalties. While it is 

 possible for the manufacturer or contractor to become bound 

 by the decision of the engineer, it is not so easy for the 

 employers to arrogate to themselves the right of practically 

 deciding whether penalties shall be paid or no. This proposi- 

 tion may be well illustrated by reference to another building 

 case namely, that of Wells v. Army and Navy Co-operative 

 Society (1902, 86 L. T. 764). There it appeared that by a 

 clause in a building contract the contractors were to complete 

 the whole of the works within a certain time unless they were 

 delayed by specified matters " or other causes beyond the 

 contractor's control, satisfactory proof of all which must at 

 the time of occurrence be at once afforded to the board of 

 directors of the employers, who shall adjudicate thereon and 

 make due allowance therefor if necessary, and their decision 

 shall be final." It was decided that the exclusive jurisdiction 

 of the directors under Clause 16 did not extend to delay 

 caused by undue interference by the building-owners or their 

 architect with the conduct of the works, and by default in not 

 giving possession of premises on which work was to be done, 

 and in not providing plans and drawings in due time. The 

 plaintiffs were, therefore, relieved from their liability for 

 penalties under the contract for delay. 



12. Powers and duties of the engineer. As has been 

 already stated, the points which arise from time to time 



