forfeiture (termination) from hudson's

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  • 7/29/2019 Forfeiture (Termination) From Hudson's

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  • 7/29/2019 Forfeiture (Termination) From Hudson's

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    (4) '1.0 LISC :ind scll ilic s~ ir plus ii~ilcri;iIs 111d Llic pl:itit, aftcrcoiiiplctioii OS Ilic works, I rccoup Ioss.~(5) 'l'o hccoiiic posscsscd f thc malcrials absolutely (lenvingopcii LIic i~ucstio~ii" dainages agairist thc contractor) 5 or

    (11' 1111: inaicri:Lls arid plant.ln(6 ) ' 1 0 bccoiiic posscssed of thc materials and things on tlie site:ibsolutcly as and for liquidatcd damages.11(7 ) To hccoii~c osscssed absolutely of the materials and plant,

    p:iyiiig Tor ihcm the amount fixed by the architect.'"'1'0 scixe iiioncy in hand

    (I ) 1'0 kccp tlie rnoncy due or accruing due to the builder,lScillicr by a condition that " he amount already paid to thebuildcr by the ernployers shall be considered to be the fullv:iluc of the works executed by the builder up to the timewhen such notice shall have expired," l4 or by a conditiontliat " the builders shall not be entitled to claim from thecinployers any payments wbatsoever for any work done orIabour o r materials provided or used since the accrual of anytlicii preceding instalment." I3

    ( 2 ) '1'0 hrfcit Sor breach of contract named sums of money as:isccrl:iiiied damages for the non-fulfilment of the contract .I0'I'o roiii~)lclche works

    ( I ) I'o complete the works or to employ some other person soIo du, paying for the same out of any money due to thchiiildcr on account of the c0ntract.n

    (2) 'l'o iakc possession of the works and to pay whatever numberol'iiicnmay bc left unpaid by the builder, aud to set on morchands aiid dcduct the cost from the contract price.

    (3 ) 'I' piciciirc and pay for all labour and materials out of rliciiii>iicy li;il may thcii be due or that may become due to thc

    I l;or.nrioir (1853) 22 L.J.1:x. 297, illustratcd s,tpra, PP. 94 695.

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    i 'I' W ;L I ? ~ : I R C ! ? , 1p1, 01 8

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    704 FORFEITUREND DETERMINATION [CHAP. 3ILLUSTRATIONS

    (1) An engineering contract provided fo r 15 per cent. retentionmoney. The employers had power to terminate the contract if theywere dissatisfied witli the rate of Progress, etc. Held, that the retentionwas by way of indemnity and not of forfeiture, and that the contractorwas entitled to it subject to any damage snstained by the employersby reason oF the default, negligence or misconduct of the con-tractor: Philadelphia etc. Railivay V. Hoivaud (1851).25(2) An engineering contract provided for payment at the rateof 90 per cent. of the value of the estimated work done, andempowered the engineer, in case the contractor did not observehis contract, to declare the contract at an end, and provided thatany sum dne to the contractor was then to be forfeited to theemployer. Held, that this clause only applied to the 10 per Cent.retention money, and not to instalments which had been certifiedfor: Riclcer V. Fai~banks 1855).2G(3) In a contract for the construction of a railroad there wasa condition that upon forfeiture " he unpaid part of the valueof the work done " should be " forfeited by the said contractorsto the use of the employers " in the nature of liquidated damagesat the time of the forfeiture; the employer had in hand the 15 percent. retention money, and in addition was indebted to the con-

    tractors in a certain amount on account of the monthly estimates.Ifeld, that the latter amonnt was not intended to be inclnded in theIorfeiture, but only the 15 per cent.: Geiger V. Western MarylandXailway (1 874).27(4) A agreed to do certain work for B, 10 per cent. of the pay-iiicnls to be retained and forfeited in case of A's breach of contract.

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    7011 ~ ' i i i < i ~ i i l ' i ~ l 1 i ~ i iN II ~ > I ~ I I I I ( M I N A . I ' I ~ N ~ ( ' I I A I ~ , .3(1X54), .rir/~rlr. licrc wiis iiii obligtrlioii oii tlic porl ol' tlic Iiiiiltlcr 10iiiiikc ~oocliiiy ~Icliciciicyii tlic cost ol'coiiiplclioii, iiiitl Iic was IIicrcIicld Lo lic ciititlcd 10 iiri nccoiinl. ut tlic ciiiploycr is iiot ohligcd Loiicco~iiil l iill il' LIic forrciturc is hcld to bc ii i thc iinlurc ol'1iquid:itcdiIiiillii~cs.Wlicrc Ilic clausc provides that the employer shall complctc theworks ;il'icr takiiig possession, it would seem that complction mcans~oiiip lclioti iiidcr and subject to thc terms of the c ontract, in so fariis ilicy :irc tlicii applicable, and that the employer would be at liberty10 :idd lo, aller o r omi l parts of the works only if and so far as thercwiis power rcscrvcd by the contract to add to o r alter or omit. Suchii cliiusc iiiay iiol be apt, therefore, to Cover the employer's positioiiwlicrc Iic does not wish to complete the works, and in such a case thcciiiploycr inay need to rely on ordinary damages rather than upon thcsliccilic rcmedies conferred by the clause. I t is a criticism of thciiiotlcrri standard form s that they d o not m ake any provision for this~iossibilily y enabling th e employer to sue for damages immediatclyii~ioii ctcrmination should he so elect. On either view, he must kccp11 slricl ;~ccoriiit f any additions, and om issions, so that a ny sum du cl'roiii hiin to t hc builder, or fro m the builder t o him, may be capalilool' iisccr1;iinincnt.

    I1 sliould not be forgotten that, in the absence of exprcss provi-sioii, tlic cinployer on forfeiture will be entitled to damages asscssctliiiidcr llic gcncral law, if th e forfeiture i s justified u nder thc geiicriilIiiw, wliicli will iiicludc the additional cost of completion and damiigotliic io delay in completion,as and under which no difficulty wouldiirisc ii i Lakiiig account of omissions or additions in the w ork actuiilly