MAINTENANCE AND DEFECT CLAUSES 183 



Bright, 1829, 5 Bing. 583, the plaintiff bought copper sheath- 

 ing from the defendant and used the same upon a ship. The 

 plaintiff sent the ship on a voyage ; but the copper, instead of 

 lasting four or five years as usual, became corroded and useless 

 after four or five months. It was held that the plaintiff was 

 entitled to recover damages, although he had accepted the ship. 



15. Claim for defects not barred by payment of or judgment 

 for the contract price. Although the employer may have paid 

 the contractor the full amount due under the contract, he is 

 not thereby debarred from suing for damages for defective 

 work. And this rule is in accord with good sense, for it is 

 obvious that defects may not become manifest until long after 

 payment. In Davis v. Hedges, 1871, L. K. 6 Q. B. 687, the 

 defendant was employed to do work on the plaintiff's house. 

 Having done the work, the defendant sued the plaintiff for the 

 contract price. The plaintiff, having paid the price, brought a 

 separate action against the defendant for defective work. It 

 was held that, although the plaintiff might have set up the 

 claim for defective work as a partial answer to the claim for 

 the contract price, he was not bound to do so, but was entitled 

 to bring a separate action. The Court refused to lay down a 

 rule that in such a case the employer, by making payment in 

 full, waives his claim for damages. Mr. Justice Hannen 

 said : " The work contracted for has been done, and the 

 right to bring an action for the price, unless there is some 

 stipulation to the contrary, arises. On the other hand the 

 extent to which the breach of warranty or breach of contract 

 may afford a defence is usually uncertain ; it may take some 

 time to ascertain to what amount the value of the work is 

 diminished by the contractor's default. It is unreasonable, 

 therefore, that he should be able to fix the time at which the 

 money value of his default shall be ascertained. In many 

 cases the extent to which the value of works may be 

 diminished by defect in their execution may be altogether 

 incapable of discovery until some time after the day of pay- 

 ment has arrived." 



In a recent case, within the author's own experience, a 

 builder was held liable for damage caused by dry rot which 

 broke out under a floor three years after a house was built, it 

 having been proved that the defect arose owing to the damp 

 course having been improperly laid. 



