On the authorities just referred to in the preceding paragraphs, it is quite clear that our case comes within the ambit of the rule established in Comyn’s Digest and applied in Holme v Guppy, supra. That is to say that a builder will not suffer a penalty arising from a delay which has been caused by the employer who has given instructions to perform extra work falling beyond the contractual limits. Our case certainly cannot be said to fall in the contemplation of the builder who made a foolish contract. In the matter before us, there was no architect involved. Secondly, I cannot discern any foolishness in terms of the manner in which the plaintiff entered into the present contract. On the evidence in the court a quo there was no suggestion that the plaintiff had contemplated agreeing, or that he impliedly agreed, at the time of entering into the contract that the defendant would have power to order additions during the progress of the construction, nor that if such power was exercised, the plaintiff undertook all the same to complete the construction within the time stipulated in the contract. Additionally, in our case there were several jobs which the defendant instructed the plaintiff to undertake. Therefore the defendant must be assumed to have known that, because of the additional works he ordered, the period specified for the completion of the contract would be exceeded. It would not be equitable to allow him to have his cake and eat it by benefitting from the penalty clause since he was the cause of the delay. For all the foregoing reasons, I agree with the learned trial judge in dismissing the counterclaim. The submission on this score on the defendant’s behalf is, accordingly, rejected.
On the authorities just referred to in the preceding paragraphs, it is quite clear that our case comes within the ambit of the rule established in Comyn’s Digest and applied in Holme v Guppy, supra. That is to say that a builder will not suffer a penalty arising from a delay which has been caused by the employer who has given instructions to perform extra work falling beyond the contractual limits. Our case certainly cannot be said to fall in the contemplation of the builder who made a foolish contract. In the matter before us, there was no architect involved. Secondly, I cannot discern any foolishness in terms of the manner in which the plaintiff entered into the present contract. On the evidence in the court a quo there was no suggestion that the plaintiff had contemplated agreeing, or that he impliedly agreed, at the time of entering into the contract that the defendant would have power to order additions during the progress of the construction, nor that if such power was exercised, the plaintiff undertook all the same to complete the construction within the time stipulated in the contract. Additionally, in our case there were several jobs which the defendant instructed the plaintiff to undertake. Therefore the defendant must be assumed to have known that, because of the additional works he ordered, the period specified for the completion of the contract would be exceeded. It would not be equitable to allow him to have his cake and eat it by benefitting from the penalty clause since he was the cause of the delay. For all the foregoing reasons, I agree with the learned trial judge in dismissing the counterclaim. The submission on this score on the defendant’s behalf is, accordingly, rejected.