180 THE LAW AFFECTING ENGINEEES 



of the said engine ; the balance to be paid on the satisfactory 

 completion of the trial, and release of Messrs. S. & Co. from 

 further responsibility in respect of such engine." It was also 

 agreed that the fireboxes should be made of copper, of the 

 thickness of ^ths of an inch (and they were accordingly so 

 made) ; and that the best materials and workmanship were to 

 be used. The engines performed the distance of 1,000 miles 

 within the month of trial, but nine months afterwards the fire- 

 box of one of them burst, when it was discovered that the 

 copper had been considerably reduced in thickness. In an 

 action against the defendants for the balance due from them 

 it was held that they could not give evidence of an inherent 

 defect in the copper, no fraud being alleged, since, by the 

 terms of the contract, the month's trial, if satisfactory, was to 

 release the defendants from all responsibility in respect of bad 

 materials and bad workmanship. 



10. Distinction between maintenance and defects clause. 

 In a case heard in the Supreme Court of the Cape of Good 

 Hope (Roux v. Colonial Government, 1901, 18 S. C. Eep. 143 ; 

 Emderis Building Contracts, p. 110) a building contract 

 contained a clause to the effect that " the contractor must 

 make good at his own cost all omissions and defects that may 

 appear or arise subsequent to the issuing of the final certificate 

 of completion." It was held that this clause referred only to 

 omissions and defects due to the default of the contractor and 

 was not equivalent to a maintaining and repairing clause. In 

 giving judgment, the judge said : " Defects would be found 

 to be confined to such defects as arose from the contractor's 

 own default; for instance, such as would arise from improper 

 or defective construction, or from the use of improper material 

 contrary to the terms of the contract. He would not under 

 such a clause be bound to restore if the premises were 

 destroyed by some outside cause, nor would he be answerable 

 for a defect inherent in the project itself, or for the insuffi- 

 ciency of the material if it complied with the specifications." 



11. Liability under a repairing clause. A repairing clause 

 imposes the heaviest liability on the contractor, because it 

 makes him responsible for defects occasioned by ordinary wear 

 and tear. His position, indeed, is very similar to that of a 



