SUB-CONTBACTORS AND SUB-CONTBACTING 191 



one or both of these implied promises. It was held that on 

 the proper construction of the contract and specification there 

 was no such implied promise, and that there was no breach of 

 contract on the part of the building owners affording the 

 builder a right to damages. (See also Leslie v. Metropolitan 

 Asylums District, 1901, 68 J. P. 86.) As a general rule, how- 

 ever, the sub-contract contains a clause to the effect that " the 

 sub-contractor shall pay to the contractor the sum of 

 as liquidated damages, and not by way of penalty, per day for 

 each day after the day of that the work shall not 



be finished or complete, and it shall be lawful for the said 

 contractor to retain the said sums out of any money payable 

 to the sub-contractor." 



10. Sub-contractor's liability for delay. The liability of a 

 sub-contractor for delay in completing the work he has under- 

 taken to carry out depends on the terms of his contract with 

 the head contractor. If he does not know that the head con- 

 tractor has undertaken to do the work within a specified time, 

 he will not be liable for the damages claimed and recovered 

 by the employer for delay ; but it is otherwise if it is shown 

 that he knew what would be the consequences of delay. 

 These principles may be illustrated by two cases. In the first 

 of these (Portman v. Middleton, 1858, 27 L. J. C. P. 231) the 

 plaintiff contracted with a person, who may be termed the 

 employer, to repair a machine. Part of the machine consisted 

 of a firebox which the defendant was employed to make within 

 a certain time. Owing to the firebox not being supplied 

 within the proper time, the plaintiff was unable to complete 

 his contract with the employer, who sued for and recovered 

 damages. It was shown, however, that the plaintiff would 

 have had time to get another firebox elsewhere. The present 

 action was brought to recover from the sub-contractor the 

 damages paid to the employer. It was held that the damages 

 paid could not be recovered, inasmuch as the terms of the 

 contract with the employer were unknown to the sub-con- 

 tractor, but that the plaintiff could recover from the defendant 

 the sum of 82 which he had originally paid to the manu- 

 facturers, and the extra cost required in getting another 

 firebox elsewhere. In the other case (Hydraulic Engineering 

 Co. v. McHaffie, 1878, 4 Q. B. D. 670) the plaintiff company 

 contracted with an employer to make a pile-driving machine. 



