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WORKS OF JOHN C. WAIT
PUBLISHED BY
JOHN WILEY' & SONS.
Engineering and Arcliitectural Jurisprudence.
A Presentation of the Law of Construction for
Engineers, Architects, Contractors, Builders, Pub-
lic Officers, and Attorneys at Law. 8vo, 985
pages, cloth, $6.00 ; sheep, $6.50.
The Law of Operations Preliminary to Construc-
tion in Engineering and Architecture.
Rights in Real Property. Boundaries, Easements,
and Franchises. For Engineers, Architects, Con-
tractors, Builders, Public Officers, and Attorneys
at Law. Svo, 712 pages, cloth, $5.c» ; sheep, $5.50.
The Law of Contracts.
A Text-book for Technical Schools of Engineer-
ing and Architecture. Svo, 346 pages, cloth, S3.00.
ENGINEEEING AND AROHITEOTUEAL
JURISPRUDENCE.
A PRESENTATION OF THE
LAW OF CONSTRUCTION
FOR
ENGINEERS, ARCHITECTS, CCNTRACTOBS, BUILDERS,
PUBLIC OFFICERS, AND ATTORNEYS AT LAW.
BY
JOHN CASSAN WAIT, M.C.E., LL.B.,
(M.C.E. Cornell ; LL.B. Harvard,)
Attorney and Counselor at Laiv and Consulting Engineer J
Member of the American Society of Civil Engineers ;
Sometime Assistant Professor of Engineering,
Harvard University.
" All laws as well as all contracts may be controlled in their operation and effect by ^en-
pral. fundamental maxims of the common law. ' No one shall be permitted to profit "by his
own fraud, to take advantage of his own wrong, to found any claim upon his own iniquity, or
to aquire property by his own crime.' "—Justice Earl, in Riggrs v. Palmer, 115 N.Y. Reports 506;
nccord, Angle v. Chicago, St. P., M, & O. Ry. Co., 151 U. S. Reports 1, 14 Sup. Ct. Rep. 240.
FIRST EDITION
SECOND THOUSAND.
^^^f
NEW YORK :
JOHN WILEY & SONS.
London : CHAPMAN & HALL, Limited.
1907.
Copyright, 18S7,
BY
JOHN CASSAN WAIT.
JtOBERT DRUMMOND, BLECTROTYPER AND PRINTER. NEW Vv'^RK.
PREFACE.
In the autumn ot 1887 the author found himself an Instructor in Engi-
neering at Harvard University, with some leisure time and with every op-
portunity open to him for special study in any subject. His experience had
been that of many other engineers. He had had a good preliminary train-
ing in Engineering at Cornell University, and had devoted several years to
active practice. He had prepared specifications and contracts for engineer-
ing works by copying those that had done service for other jobs, had found
them misfits, and had been through more or less litigation in consequence,
and had felt, as have thousands of other engineers and contractors, the need
of some advice and understanding as to the legal rights and liabilities of the
contractor and owner, and as to his own duties and responsibilities. He
had consulted older members of his profession in regard to these matters,
who thought they were questions of law ; and from lawyers he had received
the reply that they were not familiar enough with the duties of an engineer
or architect and with the customs and usages of the building trades to ven-
ture an opinion. Lawyers invariably answered that they should have to
inquire more especially into the nature of an engineer's duties and his rela-
tions to the work, and to his employer and to the contractor, before they could
answer, and that it seemed to them a matter for a specialist. Specialists
the author did not find, and he determined to become one himself, well
knowing the meaning of the term in its modern acceptation, and fully real-
izing the labor it involved. He knew that to become a specialist required
one first to acquire a general knowledge of the subject, to accomplish which
he entered the Harvard Law School and completed a three years' course in
the study of law, enjoying special privileges in the libraries of the School
and University by reason of his position.
During and subsequent to this period the author delivered each year a
brief course of lectures upon the subject of Engineering Law to the techni-
cal students "in engineering, the attendance of which fully satisfied him of
the interest that the subject had for students in engineering, and gave him
some impressions of its value to the profession. The outgrowth of those
lectures is this book -
iii
IV PREFACE.
The subject of Architectural Jurisprudence is not a new one, as is gen-
erally supposed. A book was published on the subject as early as 1827 in
England,* and the French law of Engineering and Architecture has been
thoroughly digested in several volumes published in 1879. f Since then the
growth and development of the industrial professions has made the need of
such works more imperative, and it is a matter of surprise that the subject has
not long since received the attention which it merits. This is doubtless due
to the fact that to undertake such a task required a preparation and expe-
rience not often acquired by a single person.
The need of a book on the subject of Engineering and Architectural
Jurisprudence is more apparent since the engineer's and architect's field of
practice has been extended. Tlieir duties are no longer confined to design-
ing and supervising the construction of works, but they have become coun-
selors and advisers in the investigation and promotion of enterprises, and in
the examination of experts and the rebuttal of their testimony. European
engineers have long since enjoyed this practice, while the general employ-
ment of American engineers in such a capacity in this country is compara-
tively recent. In preparing this book the author has hoped to enlarge this
practice, and to create a better understanding between attorneys and engi-
neers or architects. If the engineer understand, fairly well, the rights and
liabilities of his employer and the contractor, and his own duties and obli-
gations ; if he appreciate the dangers and legal liability of his employer
incident to construction work, and be fairly informed as to what is required
in the conduct of a trial, — his services will without doubt be more valuable
•and more in demand.
Attorneys at law are not often familiar with the difficulties and dangers
attending construction work, nor the methods employed. Even the terms
employed are not often acquired by members of the legal profession, to say
nothing of the technical knowledge required to skillfully conduct the exam-
ination of experts in science and mechanics. To undertake such cases as
arise in manufacture and construction, a lawyer must make a special study
of the subject-matter of the case in hand, as best he may in the short time
he has and under the pressure of other professional duties. He attempts in
a few days or months to acquire what the engineer has devoted the best
years of his life to accomplish, and with what success he knows as well as
anybody. Lawyers are astute, and the showing that they frequently make
in court before the jury is truly wonderful ; but their technical knowledge is
generally superficial, and the results are often what might be expected.
They justify their course, however, on the ground that engineers are ignorant
* Elraes' Arcbiteclural Jurisprudence, 1827.
•j-Nouvelle Jurisprudeuce el Traite Pratique sur la Responsabilite des Arcbitectes, lu-
geiiieurs. Experts, Arbitres et Entrepreneurs; Honoraires des Arcbitectes ; Devis De-
passes et Traveaux Supplementaires, etc., pai O. Masseliu.
PREFACE. V
of the rules of evidence and court procedure, and that the suggestions they
make are usually shortsighted and impracticable, — which cannot be denied.
Lawyers do not enter into the study of specialties from choice, but from wliat
they feel is a necessity. The reader has but to read the Chapter on expert
testimony to appreciate the force of these remarks, and to feel that the
author's attempt to render the services of experts of greater value to attor-
neys should not be in vain.
It must not be inferred that an engineer can, by a few weeks or months
of study of law-books, undertake the practice of law or conduct his own cases
in court, or even give advice in regard to matters of law. The author wishes
expressly to disclaim any such purpose in the preparation of this work.
The lay reader should keep constantly in mind that this work is not in-
tended to enable him to go into court to defend an action at law or to prose-
cute a claim, but is written primarily to assist him in avoiding trouble and
litigation, and to aid him in protecting his employer's and his own rights
when they are assailed. If a man's rights are usurped, he had best consult
a man who makes some profession of knowing what his rights and liabilities
are; if they involve his spiritual as well as his legal status, he will consult his
pastor; and if there be questions involving engineering and architecture, he
may reasonably be expected to consult his engineer or architect.
It is hoped that the book will fulfill another mission — that of guiding
and strengthening the younger and inexperienced members of the indus-
trial professions in a proper understanding and appreciation of business
and business relations. Young men in the engineering and architectural
professions often obtain in their technical-school training a contracted view
of their professional duties and labors. They are likely to narrow their
professional work to the ministerial duties of the drafting-room, the shop,
or the field. Too many well trained and educated men remain in the shop
or drafting-room, while less skillful men from the accounting- room and
office, but with a good business experience, become superintendents, man-
agers, and presidents of the concerns employing them; and it should be
said that frequently the latter are more* justly entitled to the place. The
education of an engineer should fit him for a higher sphere than that of a
delineator of lines. Supplemented with a good business experience, his
training eminently fits him for the direction -and superintendence of large
works; and that is his proper field. If this book cultivates in young men a
better appreciation of business relations and business principles, and a due
sense of their duties, liabilities, and responsibilities, one of its chief missions
is accomplished.
Another benefit that the author has hoped to confer upon engineers
and architects is to assist them in successfully undertaking contract work.
There is no field for which they can better fit themselves and that is likely
to prove more profitable. A good knowledge of the cost of work and
materials, acquired by close observation while in charge of works, together
VI PREFACE
with the necessary qualificatioc possessed by every engineer, the capacity to
estimate, design, and direct works, would seem to be all that one would re-
quire to undertake construction work and become a successful contractor and
builder Yet how few engineers or architects are to be found in the rank
and file of contractors and builders. For this there must be reasons, — one
ot which is, that professional men, being ambitious, start at contracting
earlier than their less-favored colleagues, and before they have had the
requisite experience to foresee and guard against the dangers and liabilities
attending construction, and they/ai7. It is believed that the experiences
related in this work, together with the decisions given, will better qualify
its readers, be they engineers, architects, or mechanics, to become prudent,,
judicious, and thrifty contractors and builders; and it is confidently ex
pected that an engineer or architect who has supervised work, with some
understanding of his own duties and the rights and liabilities of the owner
and contractor, will be better able to undertake the duties of the latter.
To attorneys and counselors at law the author offers this, his first law-
book, with some apprehensions, and a full appreciation that it will be sub-
ject to criticism. The author believes that the book will be found a con-
venient and ready means of ascertainfng the law as decided in the several
thousand cases cited. In the small space of one volume it is impossible to
go very exhaustively into all the subjects taken up in the book; but in the
subjects bearing expressly upon the duties and liabilities of the engineer
and architect, and the decisions rendered by the courts upon the special
provisions common to construction contracts, the author confidently be-
lieves that he has compiled the largest and best collection of cases yet
made. He regrets that he has not been able always to give the references
to the official State reports, but many are given in the table of cases that
are not cited in the foot-notes, and the reader is recommended to refer to-
the table of cases, if he has not ready access to the reports referred to in
the foot-notes. It may save time in any case to verify the citation by ref-
erence to the table of cases. The year and State in which the case was
decided is usually given, which will assist in finding the cases in any report
containing them. The number of citations is large, there being more than
five thousand, which are collected in a table; and thousands of other cases
are indirectly referred to in- text-books, treatises on law, and in tlie first
edition of the American and English Encyclopaedia of Law. In referring
to standard works of very large circulation, like the latter, the author has
not deemed it advisable nor necessary to add to those already collected, but
has been content to refer the reader to such standard books and to the cases
there collected.'
Though the number of cases is very large as it stands, it contains only
about one. third of the number collected in the preparation of the book. In
the original plan of the work the author misjudged the number and extent
of the subjects fairly to be treated under the title adopted, and has had to
PREFACE vii
omit one whole Part and to abbreviate several Chapters for which he had
collected materials.
The Part in question, on " Surveys and Surveyors; or, Field Operations
and The Law of Boundaries," will be the subject of a later volume; while
the Chai^ters mentioned are those upon the subjects of Mechanics' Liens,
Injunctions, Strikes and Boycotts, xissessments, and other subjects which,
though of much interest to the reader, are too cumbersome to include in
any one volume The author has had to be content to briefly mention
these subjects, and to refer his readers to excellent books specially treating
them and already published.
Scrutinizing and- discriminating as lawyers are, the author expects that
some will take exception to the plain and unqualified statements of the law
frequently made A plain statement of the law or of a party's rights in
any case is well-nigh impossible, because they are subject to so many
technical considerations, conditions, and circumstances. In perusing the
different parts of the book statements will be found which are seemingly
contradictory, but it is submitted that frequently they will be reconciled by
reading to the end The author would warn the reader that he must not
read a line nor a sentence nor a page, and then draw conclusions, which the
rest of the text on the same subject may disclose to be erroneous. If he
read, he should read all that has been written on any subject, including the
sections referred to at the bottom of the pages. The author has made
plain statements of the law under the circumstances described and under
the conditions which usually exist (if not described), in the belief that it
will meet the approval of the reader better than it he surrounded every
statement with a confusion of facts, refinements, and technicalities that
exist perhaps not once in a thousand cases. So far as the courts have made
exceptions, the author has endeavored to present them in as brief a space as
possible. Lawyers rarely make unqualified statements of the law without
knowing all the circumstances of the case, and then often they find it
necessary or convenient to qualify them with "its'' or conditions, so that
their clients get little idea of their legal rights and liabilities. Especially is
this true of conscientious lawyers and profound scholars, but it is not what
the average business man, engineer, or contractor wants. "What is given
in these pages is confidently believed to be the practical application of the
law to the case presented.
The contract stipulations given and discussed have been chosen from a
collection of several thousand specifications and contracts made by the
author, and which have been in use by the governments, principal cities,
and .largest corporations ot the United States, Canada, England, and Scot-
land The contract clause?? have been selected for the double purpose of
furnishing matter for discussion, and as examples to be employed in draft
ing construction contracts In many instances they are more full and com-
prehensive than would be recommended for general use, but short forms
Vlll PREFACE.
have also been given so that the draftsman may have a selection. The full
phraseology has been given to furnish the reader the variety of language in
which the provisions have been expressed. These stipulations have been
indented and made solid, so that they may be distinguished readily.
Many of the contract clauses adopted for discussion in the book have
been divided into parts so that the condition might be separately discussed,
and such forms of a contract are to be preferred to those in which several
conditions or covenants are mixed up in one sentence or paragraph, even at
the expense of brevity. When stated separately, it removes all doubt that the
stipulation was considered.
The author has refrained from giving a full contract form for general
use in construction work, and he would warn his readers of the mischief
that often results from the adoption of such forms for special cases. The
adoption of a single clause, without the careful consideration that the ques-
tions presented deserve, is discouraged. Much trouble and litigation are the
result of adopting loosely or carelessly prepared contracts for construction
work.
The author wishes to express his heartfelt thanks to the owners and offi-
cers of the libraries to which he has had access in the preparation of this
work for the many courtesies which he has received, and especially to the
Harvard Law School Library of Cambridge, the Social Law Library and
the Massachusetts State Library of Boston, the Law Institute Library of
New York City, the Library of the Court of Appeals at Syracuse, and the
private Library of Justice D. L. Follett of Norwich, N. Y. Without
the free use which the author has enjoyed of these large libraries the com-
pletion of the book in its present state could not have been accomplished.
The author has necessarily made a legitimate use of other works, and he
has made frequent reference to text-books and other treatises; but special
acknowledgment is due to the several works upon Railroad Law by Red-
field, Pierce, Wood, Hodges, Godefroi and Shortt, and to Lacey's Digest ; to
Phillips' Mechanics' Liens; to the respective works of Story, Evans, and
Meechem on Agency; to Meechem on Public Officers; to Lawson's works
on Expert Evidence and Custom and Usage; to Dillon's Municipal Cor-
porations; to Emden on Building and Building Leases; and to the Ameri-
can and English Encyclopaedia of Law, which is frequently referred to for
collections of cases. These works are to be found in almost every library,
and the author has had to refer the reader to them for more detailed infor-
mation of some subjects than could possibly be given here.
To his many friends in the engineering professions and numerous indus-
trial vocations who encouraged him in his earlier efforts to undertake and
complete such a work the author sends greetings, and earnestly hopes that
the book may prove to be all that they had hoped for and anticipated. The
task proved more arduous than was anticipated. The words Architect,
Engineer, Contractor, and Builder are rarely found in the indices of law-
PREFACE. IX
books, and the cases cited herein have been discovered and gathered together
only after a diligent and prolonged search through reports, digests, and
periodicals, guided and directed by referring to legal terms quite foreign to
the subject-matter of this book. This, together with the fact that the
author has been almost constantly engaged in professional work, accounts
for the delay in bringing out the book. It is hoped, however, that the book
is better for the delay. .
38 Park Row, New York,
September 15, 1897.
CONTENTS,
PART I.
LAW OF C0NTRAGT8 IN GENERAL.
CHAPTER I.
ESSENTIAL ELEMENTS OP A CONTRACT. LEGAL AND ILLEGAL CONTRACTS.
THE PARTIES TO A CONTRACT.
SECTION - PAGB
1. Introdiictioa 1
2. Essential Elements of a Contract 1
3. The Introduction to a Contract 3
4. Designation of the Parties 3
5. Parties to the Contract 3
6. Only Parties to Contract are Bound 4
7. Legal Representatives of the Parties 4
8. Ttie Representatives after Death, or Changes Effected by Law 5
9. Executor or Administrator Takes Benetits and Burdens of Contract. , 5
10. Contracts for Personal Skill of Contractor 6
11. Executor Named in Contract 6
12. Executor's Liability on Contracts and for Torts of Party 7
13. Assignee of Contractor or Owner. 8
14. What Contracts and Claims are Assignable 9
15. Contracts Awarded to Lowest Bidder may be Assigned 9
16 What Interest does an Assignee Take 10
17. Third Parties, Strangers, and Beneficiaries 11
18. Third Part^— Sureties 12
19. Third Parties, Sureties are Not Liable to Them 13
20. Surety Released by Unauthorized Changes in the Contract 13
21. Changes which will Not Release the Surety 16
22. Surety Discharged by Other Causes 17
Persons as Parties. — Who May Contract.
23. Disabilities to which Persons are Subject 18
24. Infants 18
25. Imbeciles, Inebriates, and Lunatics 19
26. Married Women 21
27 Other Conditions Affecting a Person's Capacity to Contract 22
28. Either Party under Duress 23
29. Agency — Parties Acting by or through. their Agents ". 23
30. Principal should be Made the Party — If Agent Assumes the Obligation He will
be Liable 24
31. Proof of Agency 25
32. Names of Parties in Body of Contract should Correspond with Signatures 26
33. Agents should be Duly Authorized to Contract , 27
xi
XU CONTENTS.
SECTION PAGB
34. Unauthorized Act8 of Agent may be Ratified or Adopted 27
35. No Claims or Obligations are Created by Contract of Public Officer or Agent
who Acts without Authority 27
36. Public Agents Not Liable for Blunders 28
37. Agent's Authority must Come from His Priucipal • 28
38. Authority cannot be Inferred from Business or Family Relations 29
39. Boards, Committees, and Councils in Their Representative Capacity 30
40. Public Officers are Presumed to Do Their Duty 31
41. Means of Obtaining Information ... 32
42. An Agent or Fiduciary can Have No Interest in the Contract , , 33
Artificial Parties. Corporate Bodies.
43. Charter and Statute Limitations 34
44. Other Restrictions to which Corporate Bodies are Subject — Cost must Be
within the Appropriation or Limit of Indebtedness 36
45. Appropriation must Not be Exceeded 37
46. The Legislature or Congress may Ratify the Contract 38
47. Cases where Appropriation has been Exceeded 39
48. Unincorporated Orgjiuizations as Parties 40
49. Subscribers to a Project > 40
50. Second Party Not Named, but Determined by His Own Act 42
51. Charter and Statute Requirements must be Strictly Carried Out 43
52. No Recovery can be Had for Work and Materials Furnished for Public "Work
Contrary to Law ., 44
53. The Law will Not Imply a Contract which the Law Forbids 44
54. Irregularities Need Not be Caused by Contractor 46
65. Precautions to be Taken by Contractors with Regard to Parties and Their
Powers 48
56. Source of Power , 48
57. Residence of Parties — Place where Contract is Executed 48
58. Laws Governing Contract may be Determined by the Place where Contract
was Made or by the Residence of the Parties 48
59. Time when Contract was Made or Entered Into— Day or Date 51
CHAPTER II.
LAW OP CONTRACTS. ESSENTIAL ELEMENTS OP A CONTRACT. THE CONSIDERATION.
The Thing for which the Act Is Done. Contractor Consents to Do some Lawful Act :
for What?
60. The Consideration , 54
6L As Regards Consideration 54
62. Consideration in Case of Subscriptions 55
63. Adequacy of Consideration 56
64. The Consideration of a Contract Must Be Something More Than a Moral
Obligation 56
65. The Consideration Must Not be "Wanting 57
66. The Doing of a Thing by One Party Which He is Already Bound to the Other
Party to Do is Not a Consideration for a New Promise or a Contract 57
67. The Consideration must Be Present 59
68. From Whom Consideration must Come 61
69. Changes or New Terms in a Contract 62
70. Consideration Good in Part 63
CHAPTER III.
LAW OP CONTRACTS. ESSENTIAL ELEMENTS OP A CONTRACT.
Th^ Subject-matter. The Act to he Terformed <>?• Thing to he Erected, Furnished,
or Supplied.
71. Relation of the Subject-matter and the Consideration 65
CONTENTS. xm
As Regards the Act to he Done or Undertaken or the Consideration for which it is
Undertaken.
SECTION PAGE
72. There must Be a Lawful Subject-matter — The Promise must Be to Perform a
Lawful Act 65
73 Contracts the Effect of Which Is to Influeuce Public Officers 66
74. Contracts for the Perversion of the Courts 67
75. The Undertakiug Must Not be Contrary to Federal or State Laws, or in Dis-
regard of Police liegulatious or City Ordinances 68
76. The Contract must Not Be to Invade Property Rights, to Commit or to Main-
tain a Nuisance, to Obstruct a Public Way or Stream, or to Commit a Tres-
pass 68
77. The Act must Not Be to Commit a Crime or a Misdemeanor, or to Injure Others
in the Enjoyment of Their Rights 70
78. The Agreement must Not Be for the Sale or Supply o^' Adulterated Goods, H)r
of Intoxicating Liquors in Violation of Excise Lawd Prohibiting Traffic in
Them 70
79. The Act must Not Require Either Party to Violate the Sabbath Laws, or to
Ignore the Laws and Regulations of Society 70
BO. The Act must Not Be to Effect Something in Contravention of the Law or
Public Policy, or in Violation of Judicial Morals, to Do what the Law For-
bids, or to Neglect what the Law Requires 70
8L The Undertaking must Not Have for its Object the Creation of a Monopoly 71
82. Contracts Not to Bid or Compete 72
83. Contracts that Promote Gambling 73
84. The Act must Not be Inconsistent with the Duties and Obligations of a Party
Who has Undertaken It 73
85. A Fiduciary can Have No Personal Interest in His Principal's Contract 73
86. A Man Cannot by Contract Forfeit Certain Rights and Privileges the Protection
of Which the Law Guarantees , 74
87. Immoral Contracts , .... 77
CHAPTER IV.
LAW OF CONTRACTS, ESSENTIAL ELEMENTS OF A CONTRACT. MUTUAL CONSENT OR
MUTUAL ASSENT.
88. There must Be Mutual Understanding 79
89. Mutual Consent must be Shown by Some Overt Act 79
90. There should Be No Misunderstanding 80
9L To Avoid a Contract, Mistake or Misunderstanding must be Shown Conclusively. 82
92. Manner of Coming to an Understanding— Offer and Acceptance Make a Con-
tract ^3
93. AVhatlsan Offer? 84
94. What Constitutes an Acceptance ? 85
95. Contracts Made by Mail or Telegraph 86
96. Acceptance must Be Unconditional and in the Same Terms as the Offer 87
97. What Effects a Revocation of an Offer 88
CHAPTER V
LAW OF CONTRACTS. GENERAL STATUTES LIMITING THE LAW OF CONTRACTS.
Statute of Frauds.
98. Proof of Terms of Contracts 91
99. Statute of Frauds • 91
100. Statute or Frauds— Contracts for the Sale of Goods, Materials, and Merchan-
dise 92
101. Contract for Goods to be Manufactured 92
102. What is a Suffirient Memorandum of a Sale 93
T03. Contracts to be Performed within One Year 94
104. Contracts Executed or Completed by Contractor 95
105. Contracts for Employment Not to be Completed within a Year , t , , , . • 95
XIV CONTENTS.
SECTION PAGB
106. Contracts for an Interest in Lands 97
107. Special Agreements Relating to Lauds 98
108. Contract Implied by Law to Pay for Benefits Conferred when there has Been
Enrichment 98
109. Contracts for the Creation, Assignment, and Surrender of Estates in Land 99
110. Promises to Answei for the Debts of Auotber 99
111. Application of the Law to Construction Work 100
Statute of Limitations.
112. Objects and Reasons for the Statute 102
113. Statute Does Not Destroy the Contract Obligation, but Affects the Remedy or
Means of Enforcing It , 102
114. Disabilities that May Prevent the Operation of the Statute — Personal Dis-
abilities 103
115. The Letter of the Law is Applied Strictly, without Regard to Hardship or Mis-
fortune 104
116 Statute Does Not Operate against tlie Government 104
117. Agreements to Waive the Protection of the Statute 105
118. New Promises May Interrupt the Running of Statute and Forfeit Its Protec
tion 105
119. Injury Concealed by Fraud, so that Right of Action was Not Known 106
120. Bad Work Concealed When under Inspection and Supervision of Engineer. . . . 107
121. Liability of Engineer for Misconduct after Statutory Period has Elapsed 107
Law of Contracts. Proof of Terms of Collateral Contract. Parol or Verbal
Agreements.
122. Parol Evidence Not Admissible to Vary or Contradict a Written Contract. . . . 108
'123. When Parol Evidence will be Received 110
124. Parol Evidence to Explain Obscure and Ambiguous Contracts 112
125 Parties may be Held to the Construction They have Themselves Adopted 113
126. Witnesses cannot Testify as to the Meaning of a Contract, 114
127. The Intention of Parties should Control 115
128 Rule against Parol Evidence Applies Only in Suits between the Parties to Con-
tract 115
129. Contracts Obtained by Fraud or Duress 115
130. Independent Oral Agreements. 117
131. Subsequent Promises Must be Founded upon a Consideration 118
PART IL
BIBS AND BIDDERS.
CHAPTER VI
THE BIGHTS AND LIABILITIES OF BIDDERS FOR PUBLIC WORK.
2%e Advertisement. Instruction to Bidders and Forms for Proposals. Formalities,
Bequirements, and Restrictions Imposed on Bidders.
132 Mode of Entering into Construction Contracts 120
133. The Advertisement or Notice to Bidders — Invitation to Contractors and Build-
ers to Make Proposals , 122
134 The Form of Advertisement to be Adopted 123
135 As Regards the Advertisement or General Notice to Bidders 124
136 Instructions to Bidders— Work is Undertaken by What Authority and under
What Restrictions 126
137. Necessity for Restrictions and Regulations 127
138. The Requirements of the Act or Charter are Imperative 127
139. Instructions should Give All Necessary Information to Bidders 129
140. There must Be Competition, in Compliance with the Statute or Charter 130
141. Public Officers cannot Legalize nor Ratify Void Contracts. ., , 13J
COjVTEWTS. XV
I
SECTIONS , PACB
142. The Legislature May Ratify Contracts 132
143. A Coutractor cannot Recover under a Void or Illegal Contract 132
144. Labor Laws and Limitations must be Complied With 134
145. Form of Notice and Instructions 136
146. Bidders may be Required to Possess Certain Qualifications 138
147. Restrictions which Exclude Certain Persons from Bidding 139
148. There Must be No Collusion or Other Efforts to Prevent Competition ... 139
148a. Possibility of the Law Being Used to Escape Onerous Contracts 142
149. What is Good Evidence of Fraud and Collusion of Public Officers and Ser-
vants , 143
150. Oath as to Truthfulness of Statements 144
151. Forms to be Used and Formalities to be Observed 144
152. Propriety of Certain Requirements and Restrictions 148
153. There should be a Standard for Comparison of Bids 149
154o Full Information as to the Work should be Furnished 149
155. The Bid should Contain neither More nor Less than is Called for by the Instruc-
tions, Plaus, and Specifications 150
156. Contracts Must be Strictly According to Terms of Advertisement, Plaus, and
Specifications by which Bids were Invited 152
157. When Amount of Work Cannot be Determined 152
158. Right to Make Changes and Alterations Reserved 156
159. Instances where Contract has been Sustained 156
160. Works Whose Cost Exceeds a Certain Amount Within the Statute, Charter, or
Ordinance 157
161. What Work Comes Within the Statute 158
162. State or City to Furnish Certain Things at a Specified Price 159
163. Contracts for Patented Articles or Materials of a Special Manufacture 159
164. Instances where Contracts have been Made for Things in Which there Was a
Monopoly 160
165. Conditions and Stipulations as to the Performance and Completion of the
Work 161
166. Conditions and Stipulations as to Performance and Completion of the Work, . . 164
167. Bond or Certified Check to Insure the Execution of the Contract, and Security
for its Faithful and Complete Performance 164
168. Bond and Certified Check to Insure the Execution of the Contract and Surety
for Faithful Performance and Completion of the Work 167
169. Proposal to be Accompanied by Consent of Sureties 168
170. Information to be Furnished and Conditions to be Imposed .when Contract is
Executed 169
171. Acceptance of Proposal and Execution of Contract — Right to Reject Bids. . . . . 170
172. Powei to Determine Responsible Bidder is Discretionary 171
173. Discretion Must be Exercised in Good Faith 172
174. Bids Rejected but Reconsidered Without a New Advertisement 173
175. Not Always Necessary to Readvertise 173
176. Whether Lowest Bidder can Compel an Award to Himself -. 175
177. Public Officer may be Enjoined from Illegally Awarding Contract 176
178. What Remedies a Bidder May Have 177
179. Liability of Public Officers for Acts Discretionary or Quasi Judicial — Misdeeds
in Awarding the Contract 179
180. Liability of Public Officers for Ministerial Acts 180
181. Bids Cannot be Recalled -. 181
182. The Acceptance or Award 181
183. What Constitutes an Acceptance of the Proposal or an Award of the Contract.. 182
184. Bid to Furnish Materials 185
185. Form of Proposal for Public Work 186
CHAPTER VII.
BIDS AND BIDDERS. WORK FOR PRIVATE PARTIES.
186. Lowest Bidder on Private Work. Owner may Adopt such Formalities and
Make such Requirements as he Pleases .• 193
187. In Absence of Agreement or Pledge, Owner may Exercise his Own Preference. 193
188. Implied Agreement to Remunerate Bidder for His Labor or to Award Con-
tract to Lowest Bidder 194
XVI CONTENTS.
PART III.
A CONSTRUCTION CONTRACT. ITS PHRASEOLOGY, TERMS, CONDI-
TIONS, STIPULATIONS, PROVISIONS, AND REQUIREMENTS, AND THEIR
INTERPRETATION, CONSTRUCTION, AND FORCE.
CHAPTER VIII.
INTRODUCTION. AUTHORITY TO CONTRACT. REQUIREMENTS.
Mutual AgreemenU, the Consideration. Designation of Partie<<. Subject-matter or
Undertaking Described.
SECTION PAGR
200. Form of Introduction 196
201. Another form of Introduction. 197
202. Remarks upon the Matter of Introduction 197
203 The Mutual Agreements and Undertakings — Technically the Considerations of
the Contract 197
204. Mutual Agreements between a company and Three Contractors 197
205. Mutual Agreements and Undertakings — The Consideration 198
206. Words Employed to Designate Parties Explained and Described 198
207. Words Employed Extended to the Personal Representatives of the Parties 198
208. Undertaking of the Contractor— General Description of the Work — Subject-
matter of Contract „ 198
209. Subject-matter of the Contract 1 98
210. Provision that Contractor shall Furnish Everything 199
211. Contractor to Use Improved Appliances 199
212 Provision that Contractor shall Furnish Everything , 199
CHAPTER IX.
PLANS AND SPECIFICATIONS.
When a Part of Contract. Dzscrepancies or Conflict between Them and the Contract. In
sufficient Plans or Specifications. Custody of Plans and Sj)ecification8.
213. Provision that Work and Materials shall Conform Strictly to Specifications
and Plans, Which are Made a Part of the Contract 201
213a. Specifications and Plans a Part of the Contract 201
214. Provision that Specifications and Plans shall be a Part of the Contract 201
215. There Must be a Clear Reference in the Contract, or Specifications, One to the
Other, or They Must be Physically Joined 202
216. Contract may Consist of Two or More Written Instruments 203
217. Use of Parol Evidence to Identify Instruments Referred To 204
218. Plans E.xhibited to Contractor when Contract was Entered Into 204
219. Instruments Referred to as Signed or Attached, not Signed, nor Attached 205
220. Plans and Specifications to be Registered with Contract 207
221. Ordinances and Regulations Referred to in Contract 208
222. Contract Annexed to Other Instruments Embodies Them. 208
223. Reference to Specifications and Plans or to a Model 208
224. Reference to Maps in Deeds and Other Forms of Conveyancing 209
225. Provision that Contractor shall Not Take Advantage of any Errors or Omis-
sions or Discrepancies Existing between or in the Plans and Specifications. . 209
226. Provision that no Advantage shall be Taken of Errors, Omissions, or Discrep-
ancies ; and Engineer to Explain and Determine their True Meaning and
Import 209
227. Conflict between the Contract, Plans, and Specifications 210
228. Contract Usually Prevails over Specifications 211
229. Provision that Engineer may Adopt that Interpretation and Construction
which is most Favorable to the Work and Owner 212
230. Contracts Terms are Usually Construed most Strongly Against the Party Pre
paring Them 213
CONTENTS. XVU
SECTION PAGE
231. Provision that Written Matter shall Prevail Over Printed Parts 213
232. Written Matters versus Printed Matters 213
233 Punctuation 214
234. Unauthorized Changes and Alterations in Plans and Specifications and Lia-
bility Therefor — Liability of Person Making the Changes 214
235. Responaibility for Unauthorized Changes by Engineer or Architect between
Owner and Contractor 215
236. Provision that Contractor shall Guarantee Sufficiency of Plans and Specifica-
tions 216
237. Insufficient Plans and Specifications— Liability of Either Party to the Other
Party 217
238 Does Owner or Contractor Warrant Sufficiency of Plans? 2lS
239 Failure of Structure after Completiou Due to Insufficient Plans 219
240. Contracts for Completed Structures Distinguished from Agreements for Work
and Materials , 220
241. Contractor will be Held to His Guaranty of Sufficiency of Plans and Specifi-
catioDS 221
242. Contract to do Work According to Plans and Specifications Implies an Under-
standing of Them 222
243. Insufficiency of Plans — Liability to Third Parties Injured 223
244. Injuries Resulting from Negligence of Both Parties 223
245 Liability of the State, County, or Municipal Corporations for the Adoption of
Insufficient Plans and Specifications. 224
246. Public Officers are Required to Secure the Services of Engineers and Archi-
tects on Questions of Design and Construction ........ 224
247. Selection of Plans for Public Works Sometimes Held a Judicial Act 225
248. Liability of City. Town, County, or State for want of Care or Skill of Public
Officer 226
• 249. Provision that Engineer shall Have the Custody of Plans 226
250 Provision that Specifications and Drawings shall be Kept at Works 226
251. Provision that Contractor shall Have Custody of Plans 226
252. Property Rights in Plans as between Engineers or Architect and Owner 227
25:i Provision that Work Shall be Done in a Workmanlike Manner 227
254 Another Clause 227
255 Anotlier Clause 227
256. An Undertaking to Construct a Piece of Work Is an Undertaking to Do It
Well and in a Workmanlike Manner 227
257. An Agreement to Perform Work in a Workmanlike Manner must be Faith-
fully Executed or no Recovery can be Had , 228
258. Provision that Work shall be Performed and Completed According to the
True Spirit. Meahing, and Intent of the Plans and Specifications 230
259. Work to be Completed to the Satisfaction of the Owner 230
[CHAPTER X.
THE a"WNERSHlP, DISPOSAL, INSPECTION, ACCEPTANCE, OR REJECTION OF MATERIALS
OF CONSTRUCTION.
Provisions that Contractor shall Replace Materials Rejected ; that He shall Provide
Facilities for Weighing, Testing, and Inspecting Materials ; that He shall Furnish Of-
fices, Foremen, and Attendants ; that He shall Not Assign or Sublet Work ; that Lines and
Levels given by Engineer shall be Preserved; and Defining and Limiting His Rig/its to
Possession of the Works.
260 Provision that Contractor shall Provide and Protect Materials and Appliances, 232
261. Provision that Owner shall Provide Materials 232
262. Ownership and Use ot Old Materials 232
261 Provision that Contractor may Take Materials at a Valuation 233
264 Provision that Materials shall Become the Property of Contractor. 233
265 Property in Materials is Determind by the Intention of the Parties 233
266 Ownership of Materials in Public Way 284
267. Title to Materials and Plant Delivered upon the Works 236
268. Provision that Plant shall Be Property of Owner during Progress of Works 236
xvill CONTENTS.
SECTION PAGE
269. Provision tbat Materials Delivered upon Works shall Attach to and Belong to
Premises 236
270. Maleriuls and Tools to Become Properly of Owner, but the Contractor is to Be
and to Remain Responsible for their Safekeeping 236
271. Ownership of Maierials and Tools when ISo Clause is Used 237
272. If it Be the Intention of the Parties to Pass Title upon Delivery, it will be so
Held 238
273. English and American Decisions Compared •. 239
274. Provision that Contractor shall Remove Temporary Structures and Dispose of
Waste Materials 240
275. Contractor Required to Dispose of Waste Materials 240
•276. Provision for the Inspection and Rejection of Inferior Materials and Work. . . 242
277. Provision that Condemned Materials slu^ll be Removed and Replaced 243
277a. Defective Materials Purchased and Used. ' 243
278. Provision that Condemned Materials and Work shall be Replaced by Con-
tractor— If He Neglects or Refuses to Make Them Good. Owner may 'Repair
and Charge to Contractor 244
279. Provision that Contractor shall Provide Facilities for Inspection 245
280. Provision that Works shall be Pulletl Down and Opened Up for Examination
and Inspection 245
281. Provision that Contractors shall Guard against Defective Foundations and Un-
favorably Conditions 245
282. Provision that Inspection and Approval of Engineer shall Not Preclude the
Subsequent Rejecting of Inferior Materials 245
283 Provision against the Sale or Use of Ardent Spirits 246
284. Provision that Contractor shall Provide and Maintain Suitable OflSces for En-
gineers 246
285. Provision that Contrator shall Provide Closets and Lavatories 246
286. Provision tliat Contractoi-s shall Make Tests, Borings, and Soimdings 246
287. Provision that the Contractor shall Weigli and Test Materials, and shall Pro
vide Weighing and Testing Appai-atus for that Purpose 246
288. Provision that Contractor shall Have and Keep a Foreman or Representative
on the Works, who shall Receive and Obey Instructions of Engineer 247
289. Provision that Contractor shall Not Assign nor Sublet Work 247
290. Piovision for Liquidated Damages to be Assessed for Assigning or Subletting
Work , ... 247
291. Provision that Contractor shall Not Assign or Sublet Work without Permis-
sion , 247
292. Provision that Contractor shall Not Assign or Sublet 248
293. Clause Forbidding Assignment or Subcontracting is Binding on Assignor and
Assignee 248
294 The Provision may be Waived 248
295. What Does Not Amount to an Assignment 249
296. A Contiact is Assignable unless it is Expressly Prohibited or It Is a Contract
for Personal Services 249
297. Provision that Engineer shall Lay Out Works and Contractor shall Preserve
His Lines and Levels , . . 249
298. Provision that Contractor shall Provide Such Labor and Structures as Engineer
may Require to Assist in Staking Out Work ,. 249
299. Provision that Contractors shall Determine the Lines and Levels for the Work
and be Responsible for the Accuracy and Correctness Thereof 250
CHAPTER XI.
COMMENCEMENT AND COMPLETION OP WORK.
Time Fixed and Calculated. Delay in Completion and Damages Assessed. Liquidated
Damages and Penalties. Defective Work and Repairs.
300. Provision Fixing Time When Work shall be Commenced and When Completed. 251
301. Provision that Possession of Site shall be Given with Order to Begin Work,
but Delay to give Po«?session shall Not Vitiate Contract 251
302. Provision that Owner Retains Possession and Contro; of His Property 251
CONTENTS. xix
SlsCTICN PAGE
303. Provision that Work Shall be Carried On as Directed by the Engineer 252
304. Provision that Work shall be Carried On as Directed by Written Orders of En-
gineer 252
305. Period of Performance Fixed and Working Daj'S Defined 253
306. Work to be Prosecuted Day and Night 253
307. Time of Completion Fixed, but May be Extended by Engineer for Certain
Causes 253
308. Time for Completion 254
309. Time of Completion Should be Clearly Stated 254
310 Time Limit — Calculation of Period Named 254
311. Time Made Essence of Contract — Liquidated Damages Fixed for Delay in
Completion of Work 256
312. Contractor shall be Liable for Superintendence and Inspection and a Sum
Named as Liquidated Damages for Delay in Completing Work.... 257
313. Periods for Completing Several Stages of the Work Named and Liquidated
Damages Fixed for Each .» , 257
314. Liquidated Damages for Noncompletion, Delay, or Other Breach 257
315 Recovery of Damages Stated may Depend Upon Whether It Is a Penalty 258
316 A Penalty Cannot be Concealed Behind the Words Liquidated Damages 258
317 Tlie Damages Recovered or Withheld must be Commensurate with the Injury
Suffered^ 259
318, Stipulation is Good when Damages Suffered Cannot be Ascertained *261
319 To Evade the Provision, Contractor must Show Damages Actually Suffered,
or that the Sums Stiputated are Unreasonable or Exorbitant 263
320. Matters to 6e Considered in Determining the Amount of Liquidated Damages. 264
321 Difficult Construction, Casualties, etc., No Excuse to Relieve from Liquidated
Damages 265
322 Damages Should be Denominated " Liquidated Damages." 266
323 Damages when Company has Taken Work Away from Contractor 266
324 Delay Caused by Other Contractors — Alteiations or Extra Work 267
325 Waiver of Stipulation for Liquidated Damages 269
326 Delay Occasioned by the Fault of the Owner 270
327. Provision that a Certain Per Cent, may be Retained for Repairs 275
328. Provision that Contractor shall Replace Poor or Defective Work and Mate-
rials, and in Case of Neglect, that Owner may Replace them at Contractor's
Expense ' 275
329- If Works Are in a State of Good Repair after a Certain Time, Owner will Pay
in Full 276
330 Provision that Contractor shall Maintain Works in Working Order and in
Complete Repair for a Period Named 276
331. Provision that, Notwithstanding any Inspection or Certificate Made, the
Contractor shall be Responsible for Defective Work and Materials 276
332. Provision that Contractor shall Amend and Make Good all Defective Work
and Materials 276
333. Provision for Repair 277
334. Piovision for Repair may be Objectionable as Creating an Additional Burden
for an Improvement .• 277
CHAPTER XII.
THE ENGINEER OR ARCHITECT AN ARBITRATOR, UMPIRE, OR REFEREE.
Eis Decision and Certificate Made Final and Conclusive WitJiout Recourse oi Appeal to
other Jurisdictions. Legality oj Clause.
335. Provision that Engineer's Decision ana Certificate shall Be Final and Conclu-
sive without Recourse or Appeal 278
836. Provision that Engineer or Architect sliall Determine all Questions in Relation
to Work, and His Decision shall Be Final 278
336<x Provision that Architect's Certificate shall be Binding and Conclusive without
Recourse or Appeal, and a Condition Precedent to Payment 278
337 Provision that Work shall be Done and Completed to Satisfaction of Owner. . 279
338. Necessity and Propriety of Such Clauses 279
XX CONTENTS.
SECTION PAOB
339. Grounds upon which the Stipulations are Attacked 279
340. Does Such a Stipulation Contain the Essential Features of a Binding Contract,
or tbose of a Condition ?— Work to be Done to the Satisfaction of Owner
or Company 280
341 "Work to be Done to the Satisfaction and Approval of Eniriueer or Architect. . 283
342. Owner's Liability Depends upon His Promise to Pay and Not upon the Execu
tion of the Work 284
343: Act of Third Party as Engineer or Architect may be Made a Condition Pre-
cedent to Owner's Liability 285
344. Constitutionality of the Stipulation 286
345. Liability may be Postponed until after the Determination of Certain Facts. . . . 288
346. Is the Agreement a Submission to Arbitration ? 290
347. Provision that Engineer's Powers shall Not be Revoked by Either Party-
Engineer if Interfered With may Proceed Ex Parte 290
348. Before the Award is Made, Agreements to Submit to Arbitration are Re-
vocable 291
349. Either Party is Liable for a Breach of His Agreement to Submit to Arbitra
tioD 292
350. Agreement to Submit to Arbitration is Irrevocable after Award is Made 29{}
351 Courts will Not Enforce Agreements to Submit to Arbitration 293
352 Consideration of Objections to the Submission of Questions to Engineer's or
Architect's Determination 295
353. Engineer Is in Possession of Records and Evidence 295
354. Engineer can Administer Justice with the Aid of the Conrts 295
355 Make Liability of Company or Owner Contingent on Determination of En-
gmeer..... 296
356. Parties are Bound after Award is Made 297
357. Stipulation should Not be Held Void Because there Is a Possibility It May
Fail. 297
358. Stipulation does Not Leave Decision of Important Questions to Incompetent
Persons 298
359 Engineers and Architects are Most Competent to Determine the Questions at
Issue . 298
S60 Courts, Juries, and Experts Are Powerless to Determine or Decide the Ques
tions Presented 298
"361. Difficult Legal Questions do Arise Without Doubt 299
362. Practical Common-sense Reasons for Upholding Such a Stipulation 300
363. Parties Desire to Avoid the Courts and Their Legal Decisions, Preferring the
Decision of a Practical and Trained Engineer 300
364. Interest of the Engineer an Objection to His Serving as an Umpire 301
365. Engineer should Have No Secret Interest 301
■366 No Definite Line ot Separation of Cases for and against Binding Effect of
Engineer's Decision 303
CHAPTER XIII.
ENGINEER OR ARCHITECT AS A QUASI -ARBITRATOR, UMPIRE, OR REFEREE.
His Duties, Powers, and Obligations in a Judicial Capacity.
367 ProvisioL that Engineer shall Be the Sole Judge and Decide All Questions . . . 305
368 The Object is to Create a Tribunal to Determine Questions Arising with Re-
gar3 to the Work 305
369. A Faulty Introduction 306
370. Powers are Confined to Those Expressly Conferred by the Contract 307
371. Employment or Agency of Engineer oi Architect Confers no Special Powers
upon Him 309
372. Power to Supervise, Direct the Work, and Order Changes and De< ermine all
Questions does not Authorize Him to Do Anything Not Expressly Provided
for 310
373. Contractor should Not Perform Additional or Extra Work by Direction of En-
gineer without Authority from Owner 310
CONTENTS, XXI
SECTION PAGB
376. Engineer cannot Pledge His Employer's Credit to Pay Subcontractors or
Workmen 311
377. Ratiticatiou of Engineer's Orders may be Imp ied from Acquiescence or Adop-
tion of Prior Orders — Instances 312
578. The Engineer cannot Promise Extra Compensation for Work or Materials
Comprised in the Contract 318
579. Engineer cannot Change Contract and Specifications nor Make New Terms. . . 313
380. Owner or Company is Not Bound by Admissions or Statements of Engineer. . 313
381. Engineer's Powers to Determine Quantities 314
4J82. Engineer must Act in Good Faith and Have Strict Regard for the Methods
Prescribed in Contract 315
383. Engineer's Power to Determine Quality, Character, and Classification 317
384- Classifications must Be According to Contract 317
385. Engineer cannot Make a New and Intermediate Classification 318
386 No Extra Compensation can be Allowed to Relieve Against Hardship 318
587 English and American Decisions Compared 319
388. Powers to Determine the Sufficiency and Skill with which Work is Per-
formed 320
389. Powers of Engineer or Architect may be Extended by Other Clauses, so as to
Permit Some Deviations from Phms and Specifications 322
590. Prior Promise to Classify Work or Materials in a Certain Way Not Always
Binding 323
591. Engineer to Determine the Value of Work and Materials 324
593. Engineer to Determine Questions in Regard to Additions, Omissions, and
Extra Work 324
393. Provision that Engineer shall Determine Every Question Arising Out of or
Pertaining to the Work or Contract 325
594. Powers Defined Under Different Contract Stipulations in Use 325
595. Instances in which Engineer's Decisions have been Held Not Binding under a
General Clause— Extra Work 326
396. Other Instances Not Covered by a Sweeping Clause — Breach by Either Party. 827
597. Engineer's Powers when the Contract has been Rescinded or Performed 328
598. Engineer's Powers when Contract has been Modified by Subsequent Agree-
ments 329
599. Many Cases Hold that Agreements foi Changes and Alterations are Subject to
Engineer's Determination, Same as for Work Under Contract 330
400. Engineer's Power to Determine all Questions may Sometimes be Limited by
Specializinoi; ■ 332
401. Engineer to Determine the Meaning and Intention Expressed in the Specifica-
tion and Contract 334
402. Engineer should Not be Able to Enlarge his Own Powers 335
403. The Contract Creates the Powers of the Engineer or Architect 336
404. Can the Engineer Interpret the Contract Wrongfully if He Interprets It
Honestly? 337
405. English, Scotch, and American Views 338
406. Objection that Such a Clause Ousts Courts of Their Proper Jurisdiction, Treated. 339
407. May Make Payment or Any Right to an Action Conditioned on the Engineer
Determining Any Differences Existing 340
408. Two Classes of Cases, the Distinction between them Well Marked and Defined. 341
409. Payment by Owner Made Contingent on Engineer's Certificate 343
410. Indebtedness should be Created by Promise Only and Not by Performance of
Work 344
411. Courts Unwilling to Construe the Stipulation a Condition Precedent 345
412. Make the Engineer's Certificate a Condition Precedent to the Promise to Pay
by Owner 346
413. The Condition Precedent may be Waived 347
414. If Payment of Contract Price is Conditional on Procuring Engineer's Certificate,
It will Hold 349
415. Language that Makes a Condition Precedent 351
416. A Condition Precedent Must be Expressed ; It will Not be Implied 353
417. Right to Require Engineer's Certificate may be Waived 354
XXll CONTENTS.
CHAPTER XIV.
RECOVERY BY CONTRACTOR WITHOUT PRODUCING ENGINEER'S CERTIFICATE.
Condition Precedent Excused.
SECTION PAGE
418. Provision that the Engineer's Decision, Determination, or Estimates shall Not
be Questioned or Impeached upon Any Ground Whatsoever 357
419. The Contract must Not Be an Instrument of Fraud 357
430. Under what Circumstances may Contractor Recover without Procuring Engi-
neer's Certificate 358
421. Company or Owner must Furnish Competent and Honest Engineeis 358
422. Circumstances which may Excuse ;he Contractor from Producing Engineer's
Certificate 360
423. Decision Is Not Final and No Certificate is Required if there has Been Fraud
and Collusion 360
424. Fraud without Connivance or Collusion of Owner or Company 360
425. Courts of Equity Have Jurisdiction where Fraud alone is Alleged, and in Some
States Courts of Law Have Jurisdiction 360
426. Courts of Equity will Grant Relief in Case of Fraud 361
426a. Difficulties Met in an Action at Law.^ 364
427. Fraud and Collusion must be Alleged and Proven 364
428. When Contractor May Recover without the Engineer's Certificate 36&
429. Mistake of Engineer in his Decision or Estimate an Element of Fraud 370
480. If Engineer has Acted Honestly and has Exercised His Best Judgment, His
Decision will Hold 372
431. Few Cases in which Courts have Allowed a Recovery on Account of a Pure
Mistake ! 37^
432. Fraud or a Failure to Exercise a Fair and Sound Judgment alone will
Dispense with Certificate 373
433. Mistake alone may Be a Cause for Correcting an Estimate, or for Requiring a
New One to be Made — Mistake that will Set Aside the Engineer's De-
termination, Defined 374
434. A Pure Mistake does not Render Award or Estimate Void, but Subject to
Correctic^n. 376
435. Cases where Contractor has Recovered for Extra Work Required by Reason of
Engineer's Mistakes 376
436. Decision of Engineer when He has Made a Mistake of Law 378^
437. Discovery and Proof of Fraud on Part of Engineer Renders Certificate Un-
necessary 380
438. Other Instances in which Engineers* Certificates have been Dispensed With . . 381
439. Performance of Condition Precedent Prevented by Failure or Refusal of
Engineer to Do His Part 383
440. Inspection and Estimate Rendered Impossible by Act of Owner or Company. . 386
441. Some Courts Allow Contractor to Recover on a Substantial Performance of His
Contract 387
442 Instances in Which Contractor has been Allowed to Recover without Com-
plete Performance, and without Securing Engineer's Certificate, 388
443. Instances Showing when the Engineer's Determinations have been Upheld. . . . 390"
CHAPTER XV.
CERTIFICATE AND ESTIMATE OF ENGINEER OR ARCHITECT CONCLUSIVE ON BOTH PARTIES
TO THE CONTRACT.
444. Provision that Engineer's Determinations shall be Equally Binding and Con-
clusive upon Both Parties to the Contract 89S.
445 Engineer's Certificate and Decision are Conclusive on the Owner as well as the
Contractor 392^
446. Owner cannot Avoid Engineer's Certificate by Pleading Work was In-
sufficiently Done &9<j
447. Provision that Estimate and Decision of Engineer shab be Final and Con-
clusive upon Coutractor 396
CONTENTS. XXiu
mt-CyjOTH PA08
448, Provision that Certificates Inconsistent with Terms of Contract may be Rejected 396
44U Provision that Certificate shall Not Preclude City or Board from Showing True
and Correct Amount and Character of Work 396
450 Meauiug of Clauses Reviewed 396
451 Work Instead of Certificate is Rejected wheu Engineer has Gone Wrong 397
453 Stipulation Holds Contractor to Terms which City Expresjily Repudiates 39'^
453 Contractor to Prove His Claims, if City be Dissatisfied with Engineer's
Estimates 397
454 Elements of an Arbitration are Wanting when but One Party is Bound by
Award 398
455 A.greement Savors Strongly of Injustice and Oppression — Obligation is Noi
Mutual 398
456 Borne Reasons why Stipulation should Not be Favored or Upheld Even 399
457 ^Stipulations Are Not in Favor Elsewhere — When Adopted, They have been
Modified 399
458 The Clauses have Found Little Favor in the Government Departments in
othei Cities or with Other Corporations 400
459 Modified Forms of the New York Clauses Are in Use 401
460 Cases Decidea where New York Stipulations were Used 401
461 llight to Revise Estimates or to Require Work to be Done According to Con
tract, though Certified by Engineer „ 402
462 Practical Working Effect of the Contract Stipulation 402
463 . Provision that Inspection and Approval shall Not Relieve Contractor from His
Liability to Furnish Proper Work and Materials. . , 403
464 Provision that Progress Certificates shall Not Relieve Contractor from Liability
for Poor or Defective Work and Materials 403
465 Provision that Progress Certificates are Made Subject to Revision and Cor-
re-tion in Final Certificate which may be Made without Notice to Parties.. . 403
466 Provision that Contractor shall be Responsible for Protection and Preservation
of Permanent and Temporary Works and Materials, and the Engineer's
Inspection, Approval, or Certificate shall Not Relieve Contractor from Doing
his Work Properly and Completely 403
46? Contractor's Liability for Defective Work and Materials which have been
Inspected, Approved, and Certified , 404
468 Materials and Work Inspected and Approved by Inspectors 405
469 Defects Concealed by Fraud or Connivance 406
CHAPTER XVI.
engineer's or architect's certificate,
lU M>rm, Substance, and Requirements Correction of Erron in Certificate or Estimate
Certificate and Estimate Made Without Notice to Parties.
470. Provision that Right to Recover and Liability to Pay for Work shall be Con
ditloned upon Procuring the Engineer's Certificate 408
471. Provision that an Itemized Account and a Personal Inspection shall be Made
— Certificate to be Subscribed and Sworn To 408
472. Provision Making Engineer's Certificate a Condition Precedent to the Owner's
Promise to Pay •, , 408
473. The Engineer's Certificate t Its Form and What It should Contain 409
474. Certificate must be Made and Executed in Strict Conformity ^\ith the Re
quirements of Contract 410
475 Certificate must be Certain as to Amount, and It should be Complete 411
476 Parties should Agree as to Form and Matter of Certificate 412
477 . Instances in which Certificate has been Held InsufiBcient 412
478. Certificate must Meet Requirements of Contract 41 3
479. Certificate Good in Part and in Part Bad 414
480. Certificate should be Final and Complete when Rendered 415
481. Certificate as Evidence in Court 415
462 Can Engineer's Certificate be Revised or Corrected after It is Once Rendered. . 41 G
483 Rules as to Correction of Awards by Arbitrators 417
4S4 When Award has been Made Arbitrator's Power's Are at an End 417
XXIV CONTENTS.
•SECTION pAO«
4«5. Engineer's Certificate Analagous to an Awara of an Arbitrator . . . 418
486. An Engineer or Arbitrator can Do One of Three Things whec He has Made
a Mistake 419
487. A Court ot Equity will Refer Back or Correct a Palpable Mistake 419
488 If Certificate or Award be Regular and Engineer or Arbitrator has Not been
Misled, it will Hold .... 420
489 Special Statutes Conferring Power to Correct Errors in Awards 420
490. Some Cases where Engineer has Recalled and Corrected His Certificate 420
491 Testimony of Arbitrator in Regard to his Award or Certificate 421
492. Provision that Engineer's Certificate, Estimate, and Decision may be Made
Without Notice to the Contractor 422
493. Under a Submission to Arbitration, Parties are Entitled to a Hearing 422
494. Right to a Hearing may be Waived by the Parties 423
495. Earlier Cases Treated Engineer as an Arbitrator, and Required a Hearing 424
496. In Many Cases an Engineer and Arbitrator are Distinguished ^ 425
497. Intention of Parties in Regard to Hearing should be Expressed 426
498. Hearing may be Said to have Been Continuous During the Construction of
Work 420
CHAPTER XVII
DELEGATION OF ENGINEER'S OR ARCHITECT'S DUTIES TO ASSISTANTS
Ministeriac and Judicial Duties Distinguished.
499. Provision for Delegation of Engineer's Duties to His Assistants 428
500. Certain Duties cannot be Delegated 428
501. Certain Acts may be Delegated 429
502. Exception to the Rule that an Agent cannot Delegate His Duties 429
503 Certain Duties cannot be Delegated except by Express Agreement 430
504. The Engineer must Do Whatever the Contract Expressly Requires of Him. . . . 431
505. Contract Clause Permitting Delegation ot Engineer's Duties Omitted 432
506. Engineer Not Properly Designated ; 433
507. Delegation of Duties by Engineer as a Public Olficer 434
CHAPTER XVIII.
INTEREST OF ENGINEER OR ARCHITECT IN COMMON WITH THE OWNER OF CONTRACTOR.
He sJiould Have No Secret Interest in the Contract.
508. Provision that Engineer's Interest in the Works shall nor Affec' his Decisiops. 435
509. What Interest may an Engineer Have in the Contract ? — Should have No Secret
Interest in the. Works ... 435
510. The American and English Courts Agree as to Interest an Engineer can Have
in His Company 436
511. Moral Obligation of Engineer Forbids any Secret Interest 438
512. provision that Contract may be Rescinded if the Engineer o Any Officer of
the City or Company is Interested in the Contract 439
513. Provision that Gifts, Presents, and Bribes shall be Sufficient Cause for Cancel-
ing Contract 439
514. The Engineer can have No Interest in the Contractor's Business 439
515. Profits Made by an Engineer or Agent in the Conduct of His Employer's Busi-
ness Belong to the Employer 443
616. Conspiracy or Collusion Between Contractor and Engineer 444
517. Engineer should Be a Disinterested Person and the Agent of Neither Party — 445
518. Company or Owner may Employ an Engineer Known to be Interested in the
Contract 446
518a. Differences between the Engineer in Charge and His Associate or Superior
OflScers 44&
CONTENT^. XXV
CHAPTER XIX.
MATTERS OF DOUBT AND DISPUTE SUBMITTED TO ARBITRATION.
The Appointment of Arbitrators and art Umpire.
BECTIOK PAGE
519. Provision that Disputes sball be Submitted to Two Arbitrators and an Umpire 448
520. Certain Matters to be considered in a Submission lo Arbitration 449
•521. What Questions may be Submitted to Arbitration 450
•522. What Parties may Submit Questions to Arbitration 450
-523. What Parties may Act as Arbitrators 452
524. What Constitutes a Submission to Arbitration 453
525 A Submission to Arbitration should be Distinguished from an Appraisal 454
-526. What Rules Govern the Arbitration 455
527. Parties are Entitled to a Hearing and to Notice of the Same 455
•528. Conduct of the Hearing 456
529. Arbitrators must Determine Questions Themselves — Cannot Leave Them to
Others 457
-530. The Arbitrators must Act Together 458
531. Matters Left to Two Arbitrators, with Power to Call in an Umpire 459
532. The Award 460
533. Compensation of Arbitrators and Costs of Arbitration 460
CHAPTER XX.
EXTRA WORK OR EXTRAS ALTERATIONS, ADDITIONS, OMISSIONS, AND SUBSTITUTIONS.
Ex^ia Work or Extras Stipulations to Avoid Extra Work.
534. Provision that Extra Work shall be Ordered in Writing, and that Owner or
Engineer may Make Alterations Additions, and Omissions to the Work 462
585. Extra Work or Extras sbould be Avoided or Controlled 462
536 Provision Limiting the Recovery of the Contractor to the Contract Price 464
537. Express Waiver of All Claims for Extra Work 464
538. No Claims for Extra Work unless Ordered in Writing and Notice Given
Thereof 464
539. Provision that Extra Work must be Ordered in Writing, Signed, Prices Agreed
Upon and Indorsed, and Periodical Statements Rendered 464
540. Provision that Extra Work shall be Ordered in Writing and the Price Deter-
mined 465
541. Provision that Extra Work shall be Ordered and Claim Presented 465
542. Provision that Extra Work shall be Certified to Be for Public Good and the
Price Thereof Limited 465
543. Provision that if Parties are Unable to Asrree upon Price, Contractor shall Not
Interfere with Third Party Doing Work 465
544. Provision that Contractor will Not Interfere with Other Contractors 466
545. No Recovery can be Had for Work Done, and Not Ordered as Required by the
Contract 466
546 Conditions Precedent to Liability must.be Strictly Performed 467
547. An Unsigned Sketch or Plan is Not a Written Order 468
548. Progress Certificates of Work Done, are Not Written Orders for Extra Work.. 468
549 Want of Written Order may be Cured by Final Certificate, if Certificate Par-
• takes of the Nature of an Award 469
550. English and American Practice Compared 471
551. Provision Relating to Extra Work, Alterations, and Omissions, Ordered by the
Owner or Engineer 471
552. Engineer's Authority to Direct Alterations Additions, or Omissionc is Not
Authority to Order Extras except in the Manner Required by Contract 472
553. Without Special Authority, the Engineer or Architect cannot Render His Em-
ployer Liable for Extra Work 473
554. Who May Authorize Extra Work or Order Alterations on Behalf of the Parties. 475
555. Boards, Councils, Committees, and Corporate Bodies must Act as a Unit 475
XXVI CONTENTS.
8ECTIO> ■ PAOB
556 Ordinances, Resolutions and Appropriations cannot be Changed by Members
of the Bodies Creating Them 477
557. The Acts of Individual Members may be Ratified or Adopted by the Board 478
55S Engineer's Authority to Order Extras may be Established by Implication,
Ratification, or Adoption . 479
559. Liability for Extra Work may be Assumed by a New or Supplemental Agree-
ment 482
560- Contract Stipulations Modified or Rescinded by Subsequent Agreement 482
561. Simple Contracts and Those Under Seal may be Changed by Parol 483
562. The Agreement to Waive or Rescind should be Supported upon a Sufficient
Consideration 484
563. Consideration may be Founded upon a Claim 484
564. The Owner, City, or Company may by Express Agreement on Its Part become
Liable for Extra Work, though Not Ordered in Writing 486
565 The Stipulation for a Written Order may be Waived 487
566. The Order must be More than a Mere Request that the Work be Done 487
567. Knowledge of Owner that Contractor is Doing Work as Extra Work a Strong
Factor in Determining the Responsibility 488
568. If Amount of Work or Materials is Reduced by Changes 490
569. If the Work be Plainly and Clearly Outside of Contract, the Contractor may
Recover Extra Compensation Therefor , 490
570. Effects of Alterations and Changes 492
571. Provision Limiting the Effect of Alterations on the Original Contract 492
572. Effect of Changes when No Rights to Make Alterations have been Reserved-
Changes which do Not Destroy the Original Contract 492
573 Changes which Modify or Extinguish the Orioinal Contract 495
574 Original Contract Rescinded or Reduced to a Parol Agreement 496
575. Alterations of Terms of Contract may Change Form of Action by Contractor. . 497
576. Effect of Change and Alterations on Liability of Surety . . 498
577. Effect of Changes Ordered under a Clause Reserving the Right to Make Alter-
ations 499
578. Contractor's Rights are Frequently Preserved by Notices on His Part 503
579. Contractor should Make His Claim for Extras when the Addition or Alteration
is Required . 504
580. Contractor may be Held to the Terms Acquiesced In or Adopted 505
581. Owner may Waive his Rights by Remaining Silent and Not Objecting 508
582. Work made More Onerous by Alterations or the Profit-paying Portion
Omitted .508
583. Instances where Changes have been Made 509
584. Owner's Liability for the Cost of Extra Work Caused by Circumstances Un-
foreseen and Unknown 511
585. Alterations and Additions an Excuse for Delay in Completing Works 513
586. More Expensive Material Ordered and Furnished than the Contract Required. 514
587. Extra Work Occasioned by Engineer's Mistakes 514
588. Provision that Estimates are Approximate Only, and that Proprietors shall Not
be Responsible for Inaccuracies 516
589. Preliminary Estimate of Work Incorrect 517
590. Extra Work Determined by Custom and Usage 518
591. Questions of Alteration, Additions, and Omissions, and their Value Left to the
Judgment and Determination of the Engineer and Architect 518
592 Provision that Engineer or Architect shall Have Power to Determine whether
Work is or is Not Included in the Contract . 519
593. Provision that Engineer or Architect shall Determine Price or Value of Extra
Work 519
594 Provision that Engineer may Order Alterations, Additions, or Omissions, and
that He shall Determine the Value Thereof 519
595. Quantity, Character, and Value of Extra Work Left to Judgment of Engineer
or Architect 520
596. Power to Decide Questions of Extra Work Does Not Imply Power to Deter-
mine Damages for Breach of Contract 523
597. Provision that Questions and Doubts with Regard to Extras shall be Submit-
ted to Arbitration 524
598. Pi-ovision that Disputes as to Extra Work shall be Referred 525
699. Instances of Extra Work— Interpretation of Certain Terms and Expressions.. . 525
CONTENTS. xxvii
SWjTION » AG 5
600. Work Not Specifically Mentioned in Contract. 525
601. Limits of Work Not Properly Defined ,. . 526
602. Estimates of Quantities of Work and Materials , . , , . . 528
CHAPTER XXI.
CUSTOM AND USAGE IN CONSTRUCTION WORK.
Their Effect upon the Gontrdct's Interpretation and Construction.
603 Provision that Quantities shall be Determined by Actual Measurement without
Regard to Usage 530
604. Provision that No Extra or Customary Measurements shall be Allowed 530
605. Effect of Custom ana Usage on the Law of Construction Contracts 530
606. Peculiar Effect of Custom and Usage 531
607. What may Constitute a Usage 532
608. Usage must be Established 532
609. Usage must be Certain aud Uniform 534
610. Usage must be Generally Known 534
611. Parties to Contract should Have Knowledge of Usage 535
612. Knowledge ot Parties of Trade Usages and Customs 536
613. A Usage must be Moral •. 538
614. A Usage must be Reasonable, Lnwiul, and in Keeping with Public Policy 538
615. Ad Unreasonable Practice cannot Become a Usage 538
616. A Practice that Subverts Justice and Is Contrary to Good Morals Is Not a
Usage 540
617. When Usage will be Admitted to Explain Contracts— It cannot Contradict
Express Terms of Contract 542
618. Usage can be Employed to Explain an Ambiguous Contract 543
619 There must be Ambiguity, which Question the Court must Decide 545
620. Instances in Brickwork 546
621. Instances in Stonework c 548
622. Instances in Plastering " 550
523. Instances in Earth works— Excavations and Embankments 551
624. Ownership of Materials — Effect of Usage 552
625. Instances in Timber aud Lumber 552
626. Some General Examples of Usage 553
627. What Usage may be Shown — Miscellaneous Examples of Usages 553
628. Custom of What Place Controls 556
629. Certain Words and Phrases Defined 557
CHAPTER XXII.
^ owner's liability for acts op contractor.
Stipulations Fixing Liahility. Relations of Owner to an Independent Contractor and to
His Servant Defined.
630. Provision that all Laws, Ordinances, etc., shall be Complied with and that
Contractor shall Protect Works 559
631. Provision that Contractor shall Protect Works, Property, and Persons from
Injury 559
632. Provision that Contractor shall Give and Serve All Notices 560
633. Provision that Contractor shall Secure All Permits, Licenses, and shall Pay All
Fees and Expenses 560
634. Provision that Contractor shall be Liable for and Make Good All Damages to
Works, Property, and Persons 560
635. Provision that Contractors shall Indemnify Owners for All Claims, Costs,
and Expense 561
636. Provision that Contractor shall Indemnify Owner and Save Him Harmless from
All Suits and Damages, and that Owner may Compromise Suits 561
xxviu CONTENTS,
SEqTION PAOK
637. Provision that Contractor shall take Every Precaution to Avoid Injuries, and
will Save City from All Cost, Damage, or Expense 561
638. Owner cannot Escape Liability for Certain Acts by Making Contractor Assume
the Liability 562.
639. Owner's Liability for the Unskillful, Careless, Negligent, and Lawless Acts or
Works of His Contractor 564
640. Act Committed by Owner or Principal . . 565
640a. When Injury Results from Carrying out the Terms of the Contract 565
641. Owner is Liable if the Natural Result of the Act will Be a Nuisance 566
643. A Man must Maintain His Property in a Reasonably Safe and Proper Manner
— The Owner of Real Estate is Reponsible for the Safe Couditiou of His
Land 56&
643. After Acceptance the Owner is Responsible for the Safety of Works 568
644. Duties Imposed by Law Upon the Owner to Exercise Due Care aud Foresight
— Must Employ Competent Parties 570-
645. Duties of Cities and the State to Maintain their Streets, Ways, and Public Im-
provements in a Safe Condition .* 573
646. City, Company, or Owner Cannot Escape Liability by Delegating Duties to a
Contractor 574
647. Provision that Engineer shall have Supervision and Direction of Work, and
that he may Require Dismissal of Incompetent and Disorderly Workmen. . . 575^^
648. Provision that Contractor shall Employ and Keep Competent Foremen and
Mechanics,. and that the Engineer may Dismiss Objectional Employees and
Workmen 576
649. Provision that only Skillful, Competent Men shall be Employed, and that
Engineer May Order Dismissal of Incompetent and Disorderly Men 576
650. Provision that Engmeer or Architect may Require Dismissal of Workmen 576
651. Object of Contract Work, to Avoid Liability Consequent to its Performance... 577
652. Contract should Make the Contractor an Independent Contractor and Not a
Servant • 57T
053. What Makes the Relation of Master and Servant 579
654. The Owner or Employer cannot Have the Direction and Control of an Inde-
pendent Contractor, His Servants, nor the Work He is Doing 579-
655. The Relation of Independent Contractor is Not Determined by the Term of
Service nor by the Wages 581
656. Contract Clause should Give Control of Men aud Manner of Doing Work to
Contractor 582
657. Relation of Contractor to Owner where Workmen are Furnished by Contractor. 582
658. Relation of Master and Servant is Established if Control of Contractor is
Reserved * 584
659. Contractor may Be a Servant, though Called a Contractor 584
660. The Owner or Employer May Direct as to the Ultimate Object or Result of
the Undertaking 584
661. The Right of Selection is an Important Element in Determining the Relation
of the Parties 585
662. The Fact that the Contractor Carries on an Independent Employment may Be
an Important Element in Determining His Relationship 58fr
663. The Mode, Method, and Manner of Doing the Work may be Prescribed in the
Specifications and Plans 587
664. What Control or Direction, if Any at All, may be Reserved to the Owner 588
665. Instances in Which the Contractor has been Held a Servant of the Owner or
Company 590
666. Instances in Which General Supervision and Direction have been Held Not to
Create the Relation of Master and Servant 593
667. Interpretation of Certain Contract Clauses 594
668. Advice in Regard to Reserving Control of Work and of Contractor 597
I
CONTENTS. xxix
CHAPTER XXIII.
NONPERFORMANCE OF CONTRACT. IMPOSSIBILITY OF PERFORMANCE.
Completion Preventea by Circumstances Beyond the Control of Either Party. Casualties
and Destruction oj Worki) Before Completion. Works more Arduous or Onerous thar
Was Expected.
SECTION PAGE
669. Performance of Contract Impossible — Construction Contracts Whose Per-
formance is Impossible 598
670 Impossibility of Performance Caused by Act of Owner. . 600
671 Provision by which Contractor Assumes Risks and Dangers of Destruction of
Works 601
672. Provision that Contractor shall Insure Works against Loss by Fire, Floods,
Teirpest, etc 602.
673. Provision that Contractor shall Insure Public Works 602
674. Complete Performance Prevented by Misfortune Beyond the Control of Either
Party— Casualty— Work Destroyed without Fault of Either Party 602
675 Destruction of Works Does Nnt Excuse Failure to Complete by a Specified
Time 605
676 Destruction of Property wlien Alterations, Improvements, or Repairs are being
Made or the Contractor has Undertaken a Part only of the Work 607
677. Work Destroyed which was to be Paid for as It Progressed 61 1
678. Work Becoming More Difficult or Arduous 6i2
679. Excavations More Difficu t than was Supposed when Contract was Tnken 614
680. No Extra Compensation can be Recovered for furnishing Better Work and
Materials than the Contract Requires 61b
CHAPTER XXIV.
NONPERFORMANCE OF CONTRACT. BREACH OR RESCISSION.
Breach of Owne? or Company and Measure of Damages to Contractor.
681. What will Amount to a Breach of a Contract ? 61T
682. When Owner has Forbidden Contractor Completing or Continuing the Work. 618
683. A Suspension of the Work will Not Justify Contractor in Abandoning Con-
tract Work 620
684 Suspension of Work Is Not Always a Rescission of Contract 620
685 Breach of Coutrac w^hen there Are Several Joint Parties 621
686. Failure to Make Specifac Payments when Due, a Breach of Contract 62^
687 Provision that Failure to Make Stipulated Payments shall not be a Just Cause
for Rescission 622
688 Abusive Conduct of Owner may be a Just Cause for Abandonment by Con-
tractor 625
689 Neglect ot Refusal of Owner to Provide Materials, Labor, Lines, Levels,
Plans, Site, oi Permits, as He Agreed to Do, may Be a Cause for Abandon-
msDt by the Contractor 626
690 Measure of Recovery when Contractor has been Prevented from Performing
His Contract — Two Lines of Action He may Pursue 628
691. Contractor must Follow the Line of Action Adopted — He cannT>t Adopt Con-
ti-act and at the Same Time Repudiate It 629
692 Work only Pnrtly Performed, which was to be Completed for a Lump Sum. . 631
693. Recovery of Expenses Incident to Preparation to Undertake Work 681
694. Recovery of Prospective Profits 632
695 What Prospective Profits may be Recovered 633
696 Profits made by Contractor on Other Jobs cannot be Considered 634
XXX CONTENTS.
CHAPTEP XXV.
NONPERFORMANCE OF CONTRACT. BREACH OR RESCISSION
Breach of Contract by Contractor. His Rights, Liabilities, and Measure of Recovery. Sub-
stantial Performance and Specific Performance oj Contract.
SECTION PAGB
697. Contrfictor Fails to Perform— His Rights and Liabilities 636
698. Contractor must have Made au Honest Effort to Complete his Contract, or He
cannot Recover. 631
699. Contractor's Failure to Perform or Complete must Not have been Willful nor
Obstinate ". 638
700 Contractor's Recovery vv^hen there has been a Substantial Performance 639
701. Acceptance of Work or of Structure by Owner — Waiver of Strict Performance 640
702. What will Be a Substantial Performance 643
703. Rule or Measure of Recovery— When Contractor Is in Default 645
704 Contractor is Responsible for Losses Suffered by Owner in Consequence of
Breach 64b
705. Specific Performance of Contract 649
706. Specific Performance will not be Required if Damages can be Assessed that
will Compensate the Losses Sustained 650
707. Specific Performance of a Contract to Furnish Materials the Supply of Which
Is a Monopoly ' 652
708. Neither will Specific Performance of a Construction Contract be Decreed
against the Owner 653
709. Specific Performance of Contract for Personal Service 654
CHAPTER XXYI.
NONPERFORMANCE OF CONTRACT.
J^ower of Owner or Company to Terminate, Rescind, or Annul Contract for Certain Causes.
Power to Employ Others to Complete Work in Case of Delay, Default, or Breach of Con-
tractor. Engineer or Architect Made the Sole Judge.
710. Provision Conferring Power upon Owner to Terminate Contract in Case of De-
fault by Contractor 655
711. Provision for Builder's Failure 655
712. Provision that Owner may Terminate Contract for Certain Causes 656
713. Provision that if Work does not Progress Satisfactorily, Owner may, After
Giving Notice, Employ Other Persons and Provide Materials and Complete
Work at Expense of Contractor 657
714. Provision that Owner may under Certain Conditions Take Work from Con-
tractor and Employ others to Complete It 658
715. Provision that Owner may Annul or Rescind Contract in Case of Default by
or Legal Proceedings against Contractor 658
716. Provision that if Work docs not Progress with Due Diligence, Other Contract-
ors may be Employed 659
717. Provision that Engineer shall Render an Account between Parties, which Ac-
count shall Be Final and Conclusive 659
718. General Remarks in Regard to these Clauses Providing for the Termination of
the Contract 659
719. Contracts may be Rescinded by Mutual Consent at Any Time 660
720. Agreements that Owner may 'Terminate Contract are Valid and Binding 661
721. The Acts or Failure to Act of Contractor does not Render Contract Void, but
the Owner must Act 662
722. Unless Power or Right is Reserved, Owner cannot Terminate Contract with-
out Consent of Contractor 663
723. Power to Terminate Contract must be Exercised in Time and Manner Re-
quired 664
724. Right must be Exercised before the Time for Completion has Elapsed 664
725. Provision that Extension of Time of Completion shall Not Be a Waiver of
Right of Owner to Terminate Contract for Cause 666
CONTENTS. xxxi
Section page
726. Failure to Exercise Power in Time may Amount to a Waiver of the Right to
Terminate 666
737. Right to Termiuuie Contract Reserved if Work is Not Completed by Specified
Time . 668
728. Measure of Recovery by Contractor when Contract has been Aunuled under a
Provision Reserving that Right 669
729. Damages Fixed it» the Clause Giving Power to Avoid Contract 671
730. Contract shall be interpreted by a Study of all the Clauses of the Contract 671
731. To Retain Liquidated Damages, the Discretion to Terminate Contract must
have been Properly Exercised 673
732. Decisions are Inconsistent 675
733. Power to Annul Contiaci may be Lost by Waiver or Failure to do His Part. . . 675
784, Contractors Delayed by Incompetent and Delinquent Engineers 675
735. Notices should be Given by Contractors of Neglect or Failure on Part of
Owner * . . 677
736. Authority to Engineer to Terminate Contract Is Not Always Power to Hire
Men and Purchase Materials 678
737. Terminating Contract should Be an Act of Last Resort 679
738. Provision that Owner or Engineer may Increase Working Force to Insure
Completion of Work 680
739. (Prior) Notices of Intention to Teiminate Contract or to Employ Other Means
must be Given as the Contract Requires 681
740. Provision that the Work may be Suspended in whole or Part without Compen-
sation to Contractor 683
741. Provision that Work may be Delayed or Suspended without Liability to Con-
tractor for Damages 684
742. Reasons for Such a Clause Providing for Suspension of Works 684
743. Provision that Engineer shall Determine what is Due Contractor for Work and
on Account of Changes and Rescission of Contract 685
744. Engineer the Sole Judge of the Damage Suffered by the Contract being Re-
scinded by the Owner 686
745. Right to Determine Damages Resulting from Annullment must be Expressly
Reserved to Confer Authority . 688
746. Engineer's Determination lo Terminate Contract is Final if Exercised in Good
Faith 688
747. Mandamus and Injunction when Owner is about to Annul Contract 689
748 American and English Decisions Compared 691
CHAPTER XXVII.
PAYMENT. PROGRESS AND FINAL PAYMENTS. PRELIMINARIES TO PAYMENTS.
Proof that Labor and Materials are Paid for and no Liens have been Filed. Release of
Liens and of All Claims Required Before Final Payment. Manner of Making Pay
ments. Contract Signed, Sealed, Witnessed, and Delivered.
750. Provision that Contractor shall Furnish Proof that All Wages, Materials, and
Supplies are Paid For 693
751. Provision that Contractor shall Furnish. Proof that All Claims for Labor and
Materials are Paid 693
752. Provision that Contractor shall Indemnify City from All Claims for Labor and
Materials 693
753. Provision that Owner may Retain Moneys Due Equal to Labor and Materia]
Claims Unpaid 694
754. Provision that Moneys may be Retained to Meet Unsatisfied Claims for Labor
and Materials . ■; 694
755. Sometimes Provisions for Payment of Labor and Materials are Required by Law
in Contracts for Public Work 694
756. Validity of Clause in Public Contracts 695
757. Materialmen's and Laborers' Rights under such Stipulation 696
758. Claims of Laborers and Materialmen Disputed by Contractor 697
759- Provision that Contractor shall Protect Work and Premises from Liens 698
xxxil CONTENTS.
SECTION PAOB
761 Provision that Contractor shall Furnish a Certificate of Register of Deeds that
no Liens oi Claims have been Filed .... 69&
761 Agreements Inconsistent with Existence of Liens is a Waiver of the Right to a
Lien 69S
762 Contractor's Covenant Against Liens does not Bur Materialmen and Laborers
from Filing Liens
763. Contractor to Execute a Release of All Claims or Demands before Final Pay
ment 701
764. Mechanics' Lien Laws of Different States 702
765 Contractor's Bund to Pay All Claims for Materials and Labor Furnished or
Used 702
766. Liens on Public Buildings 704
767. Contractor's Possession of a Building for Purposes ot Construction is Not a
tenancy .' 704
-768 Burdens Created upon Property by Unauthorized Agents 705
769 Provision for Progress Certificates and Partial Payments. 705
770 Provision for Failure to Make Monthly Payments 706
I'^l . Provision that Certificate of Engineer or Architect shall Be a Condition Prece-
« dent to Partial or Final Payments 706
772. Engineer's Certificate should be Made a Condition Precedent to Owner's Lia-
bility : ; 707
773 Special Provisions as to Payments — 70&
774. Provision that Engineer's Estimate and Certificate shall be a Condition Prece-
dent to any Claim of Contractor to Payment 708
775 Provision that Engineer s Estimate and Certificate shall be a Condition Prece-
dent to Payment by Owner 708
776. Provision that Owner will Pay on Performance of Conditions and Rendering of
Engineer's Certificate 709
777 Provision that no Payments shall be Due except upon the Engineer's Certificate 709
778 Promise to Pay Omitted . , 709
779 Provision that Progress Certificates shall Not Prejudice Right of Owner or City
to Require full Performance of Contract 710
780 Provision Making Final Certificate Conclusive and Binding over Progress
Certificates 710
781. Provision that Architect's Certificate Given During Progress of Work shall Not
Prejudice Final Settlement 710
782 Provision for Payment at a Price per Unit Measure 710
783 Provision Fixing Compensation at a Prict^ per Unit of Measure. . 711
784 Provision for Payment by Schedule of Prices— Prices to Cover Everything. . 711
780 Provision for Payment after Performance of All Stipulations in Manner
Described — Representatives Named 711
• 786, Provision that All Money Due to Owner may be Recovered by Action or may
be Retained out of Moneys Due to Contractor 712
787. Provision that Final Payment shall Operate as a Release of All Claims
Against the Owner 712
788 Provision tbat No Payments shal! be Made until Works are Complete 712
789. Provision that Payments shall be Made out of Public Funds and that Public
Officers Incur no Personal Liability 712
790 Provision that Notices may be Sent to Contractor s Place of Business 714
791 Contract Executed in Triplicate, and What it Comprises 714
792 Extent oi Contract ' 714
793 Acknowledgment by Parties that Contract has been Read before Executing it.. 714
794 Contract Executed without Reading It . 714
795 What Is or Is Not a Signature ...716
7'J6 Contract Signed by One Party Only 717
797 loiormai Contracts which are to be Reduced to Writing at some Future Time 718
798 Execution oJ Contract, Signed SealeC, Witnessed, and Delivered 719
799 Why is Contract in Writing ?— Why Signed, Sealed, and Witnessed ? 720
CONTENTS. xxxii:
PART IV.
ENGINEER'S AND ARCHITECT'S EMPLOYMENT,
CHAPTER XXVIII.
EMPLOYMENT OR ENGAGEMENT OF ENGINEER OR ARCHITECT,
Performance of Service, Term of Service, Dismissal or Discharge, and Extra Woi'k,
SECTIO> PAGB
800. Contract of Employment 722
801 . Term of Service 722
802. Dismissal or Discbarge of an Employee 724
803. Willful Disobedience of Any Lawful Order of tbe Employer 724
804. Gross Moral Misconduct. Pecuniary or Otherwise 725
805. Habitual Negligence, oi Conduct Calculated to Injure Master's Business 726
806. Incompetence or Incapacity 727
807. Condouation of Employee's Offense 728
808- What Is a Discharge?. 728
809. Duty of Discharged Employee to Seek Other Employment 729
810. No Recovery for Extra Work Unless so Agreed 731
811 Employment of Engineer or Archit ct in a Professional Capacity •. 731
812. What Constitutes an Employment of an Engineer or Architect ?— This is Often
a Difficult Question 732
813. What Is a Performance of a Contract of Service ? 735
814. Recovery for Services Rendered 736
CHAPTER XXIX.
PROPERTY OF ENGINEERS OR ARCHITECTS IN DESIGNS AND INVENTIONS.
Ownership of Plans, Specifications, and Drawings. Corporeal and Incorporeal Property
Rights
815 Ownership of Plans, Drawings, and Designs .,.,.. 739
816 Incorporeal Property in Architectural and Engineering Designs— Copyright
and Patent-right 740
817 Rights of a Purchaser to Incorporeal Creations 743
818 Copyright of Plans and Drawings 743
819. Rights of an Author, Inventor, or Designer when in the Employ of Another... 744
820 Things Made or Created Outside of Office Hours 746
821 Creations Made from Materials Collected while in Another's Service 746
822 New Creation Made from Materials Collected by Others 746
823. Employees Right to His Inventions 747
824. What Is Invention, and Who Is the Inventor ? 748
825 Instances of Invention between Employer and Employee 750
CHAPTER XXX.
LIABILITY OF ENGINEER OR ARCHITECT AS A PROFESSIONAL MAN,
Musi he Competent, Skillful, and Exercise Due Care
826 Engineer's or Architect's Employment Similar to that of Other Professional
Men 751
827. Undertaking of a Person Who Offers His Services in a Professional Capacity. 751
828. That the Employee Possesses Skill is Implied f'om the Undertaking to Act. . 752
829. Absolute Accuracy or Success Not a Test of Skill or Capacity of a Man in His
Professional Capacity 752
xxxiv CONTENTS.
SECTION PAGE
830. Deter iDination of Skill Possessed or Want of Skill 753
831. Eugineer's or Architect's Undertaking when He Accepts or Solicits an Engage-
ment 753
832. Professional Man must Possess Ordinary Skill and Exercise Ordinary Care 754
833. Negligence or Failure to Exercise Reasonable Care and Diligence 754
834. Negligence on the Part of an Agent 755
835. Negligence or Want of Care and Skill of a Professional Man 755
836 Skill Required of Specialists 756
837 Skill and Care Required of Engineers or Architects — Instances 756
838 Owner may Offset His Damages Against Sum Due Engineer or Architect for
Services 757
889. Architect or Engineer must Give Such Careful Superintendence and Inspec-
tion as to Prevent the Contractor from Making Material Omissions and
Variations 758
840. Engineer and Contractor or Architect and Builder Jointly and Severally
Liable 760
841. Owner Not Liable for Misconduct of His Architect 760
842. Engineer and Architect are Liable to their Employer and to Nobody Else 762
843. Liability for Acts of Assistants 763
CHAPTER XXXl.
LIABILITTi OP ENGINEER OU . ARCHITECT WHEN HIS FUNCTIONS ARE JUbiCIAL Olt
DISCRETIONARY.
844. Not Liable for Many Acts or Omissions when His Functions Are Judicial. . . . 764
845. Attempts have been Made to Discriminate between Judges in Court and Judi-
cial Officers 765
646 Engineer's or Architect's Judicial Status 765
647 Engineer or Architect must Not Act Fraudulently 767
848 Engineer is Liable to His Employer, when He may Not be Liable, to Con-
tractor 768
•849. Engineer or Architect may Owe a Double Duty to His Employer, viz., as an
Arbitrator and a Professional Man 77©
^49a. Eugineer's or Architect's Knowledge Is the Employer's Knowledge 771
CHAPTER XXXII.
LIABILITY OF AN ENGINEER OR ARCHITECT WHEN A PUBLIC OFFICER.
650. Position of a Public Officer 773
851. County Officers and Their Liability 774
852. County and Municipal Officers Compared 774
853. Liability of a Public Officers tor the Acts of his Assistants 774
854. State Employees Held Liable for Negligence 775
855. Public Officers and Their Liability upon Contracts Executed for the State . . . 776
856 Officer or Employee Is Responsible for His False Representations 777
"857. Engineer's and Architect's Liability when Holding Office of Public Trust 777
858. A Ci'y Engineer's Liability for Mistakes 777
659. Commissioners of Public Works and Their Liability 779
859a. Situation of Engineer or Architect in Injunction and Mandamus Proceedings
—Liability for Contempt. 779
CHAPTER XXXIII.
COMPENSATION OF ENGINEERS AND ARCHITECTS.
Protection of Lien and othef Laws. Free Passes.
8'60. Architect's or Engineer's Compensation 783
661. Rights of Engineers and Architects to a Lien for Services 783
862 If Architect or Engineer Supervises and Directs Work He may Have a Lien in
Some States 784
CONTENTS. XXXV
SECTfON PAOB
863. Engineers' or Architects' Rights under the Stockholders' Liability Acts 788
864. Compensation for Injuries Received while Riding on a Free Pass 789
865. Passes are Usually Given for Some Consideration 790
866. Free Carriage, without an Agreement— Waiving Damages for Gross Negli-
gence 790
CHAPTER XXXIV.
EMPLOYMENT OF AN ENGINEER OR ARCHITECT AS AN EXPERT WITNESS.
T7ie Consultation, Preparation, and Behavior in Court. Remuneration for His Servicei.
867. Expert Witness — Treatment of the Subject , 792
868. An Expert Should Take Time to Investigate and Decide before Giving an
Opinion 792
869. Expert must have Regard for the Undertanding and Knowledge of His
Audience 793
870. Esteem in which Experts are Held by Bench and Bar. 794
871. Biased and Warped Judgments are Not Confined to Professois of Science .... 795
872. Experts Are Champions of Their Clients as Well as Attorneys 796
873. Candid Opinions of Experts may be Had if They are Sought. 796
874. It is the Duty of Every Citizen to Promote Justice. '. . . 797
875. The Preparation — Expert Witness should Not Only be Informed, but He must
be Prepared to Convince Others 798
876. Use of Books by Expert Witness 798
877. Witness may Use a Book, Chart, or Prepared Memoranda to Refresh His
Memory 800
878. Use of Written Memoranda and Copies Thereof 802
879. Use of Maps. Plans, Photographs, and Models in Court 803
880. Use of Photographs as Evidence 803
881. Expert Witness should Fortify His Opinions with Authority and Undisputed
Facts 805
882. Experts should Seek the Confidence and Re>pect of the Court. . . , 805
883. Trial Court Determines the Privileges of an Expert Witness 806
884. Behavior of Expert Witness in Court— When will Expert Testimony be Ad-
mitted .• 807
885. Some Questions Held Not to Require Experts to Determine 808
886. Expert cannot Determine Questions which the Jury are to Decide 810
887. Hypothetical Questions may be A?ked of an Expert Witness 811
888. Witness Acquainted with Facts of Case 812
889. Weight and Value of an Expert's Testimony is Determined by Jury 813
890. Expert Witness must Not Try to Determine Questions which Determination Is
for the Court or Jury 81 4
891. Qualifications of an Expert — Who may Be an Expert Witness 815
892. Witness may Employ Practical Illustrations and Experiments 820
892«. Judicial Notice 822
893. Right to Use Models and Make Tests Rests with Trial Court 823
894. An Expert's Advice to Fellow-Experts. ; 824
895. Experts as Assistants in Examination of Witnesses by Attorneys 825
896. Compensation — Reward for Services as an Expert Witness 825
897. Expert Witness in Civil and Criminal Cases Distinguished 827
898. If Expert Has Knowledge of Facts of Case, He must Testify 827
899. Expert's Knowledge. Experience, and Character may be Inquired Into 828
900. If Expert cannot Collect Extra Compensation, then no Extra Preparation can
be Requ ired ' 828
901. Legislation is Needed t) Improve Expert Testimony 828
TABLE OF CASES.
References are to sections.
I
Abbott V. Gatch (la Md. 314),
545, 546. 552, 566. 579, 695, 704, 814
V. Morrissette (46 Minn. 10) 22
Abells V. Syracuse (N. Y. Sup.) (40 N. Y.
Supp. 233 [1896]) 157, 549, 558. 565, 569
Abernethy v. Hutchinson (1 H oi T. ~'8) 816
Abiaham v Ordway (15 Sup. Ct Rep. 894).... 112
Accola V Chicago, B. & Q R Co. (70 Iowa 185)
892a
Adams V. Boston Iron Co (10 Gray 495) 699
V. Burbank (Cal.) (37 Pac. Rep. 640) 690, 691
V. Bushes (60 N. H. 290) 527
V. Cosby (48 Ind 153) 573. 397
V. Hill (16 Me 215 [1839]).. 219 325, 446 467
V. Ives (63 N. Y. 650 [1875]) 169, 170
V. Lindsey (1 B. & A. 681 [1818]) 95
V. Mayor of New York (4 Duer [N. Y.]
295 [1855]) .... 388 415, 427, 428. 478, 505
V. Nichols (Mass.) (19 Pick. 279 [1837]).
271, 672, 674, 675
V. Railway Co. (16 Scotch Sess. Cas.
84S [1889]: s c. 18 Scotch Sessions
Cases 1 [1G90]) 405. 511
V Scheflfer (Col.) (17 Pac Rep. 21).... 28
V Stringer (78 Ind 175 [1881]) 28
V United States (1 Ct. of CI. 192) 183
Ada St M. E Church v. Garnsey (66 111. 132
[1872]) 812
Adams Exp. Co v Egbert (36 Pa. St 360) .. 815
Adamson v Nassau Electric R. Co. (Sup.)
(33 N. Y. Supp. 732) 138
Addis V Pittsburgh (85 Pa St. 379 [1877]) 554
Addison v Pac. Coast Mill. Co. (C. C ) (79 Fed.
Rep. 459) 861
Adlara v. Booth (7 C. & P. 108) 674
V. Muldoon (45 III. 193)
219,379.888.390,553 701
Adler v. World's P. Exp. Co. (111.) (18 N. E.
Rep. [18881) 862
.^tna Iron & S. Wks v. Kossuth Co. (79 Iowa
40. 44 N. W. Rep. 215) 698. 703
Agar V. Macklew (2 Sim. & Stu. 418) 344
Agate V LowenbeiD (57 N. Y. 604) 265, 602
Agawam Co. v. Jordan (7 Wall 602) 824
Ahern v. Bovce (19 Mo. App 5.52).. 543. 553, 565. 690
Ah How V. Furth (Wash.) (43 Pac Rep. 639).... 801
Aiken v. Bloodgood (12 Ala. 221 [1847]),
238. 572, 575. 726
V. Wasson (24 N. Y. 482 [1862]) 660, 863
A. J. AndersoPi Elec Co. v. Cleburne Co.
(Tex.) (27 S. W. Rep. 504 [1894]) 430
Ala Gold Life Ins. Co. v. Garmany (74 Ga. 51). 699
V Oliver (Ala.) (2 So.
Rep 445 [1887]) 216.796
Alabama Mid. Ry. Co. v. Caskey (Ala.) (9 So.
Rep. 202).... 892a
V. Martin (Ala.) (14 So.
Rep 401) 275. 667
Albany City Natl. Bk. v. Albany (92 N Y.
363[1883]) 39
Albert v. Ziegler (29 Pa. St. 50) 561
Aldcorn v Philadelphia (44 Pa. St 348 [1863]),
248, 858
Alderman v. Phelps (15 Mass. 225.)
Aldrich v. Tripp (11 R. I 141 [1877]) 645
V. Wilmarth (S. D.) (54 N W. Rep.
811 [1893]) 697, 698. 701, 70'j
Aldritt V. Panton (Mont.) (42 Pac Rep. 767).., Ill
Alexander v. Collins (Ind. App.) (28 N. E. Rep.
190 [1891]) 517.533
V. Johnson (Ind. Sup.) (41 N E.
Rep. 811) 42, 185>
V. Robertson (86 Tey. 511, 24 S.
W. Rep. 680) 370 553
Alexis St. Mfg. Co v. Yotmg (59 111. App. 226),
801, 804. 807
Alford V. Dallas (Tex.) (35 S. W. Rep 816) . . 1.38, 789
Alger V. Vanderpoel (34 J. & S. 161) 585
Allamon v. Albany (43 Barb. [N. Y.] 33) 689
Allen-Bradley Co. v. Aderson & N. Dist. Co.
(Ky.) (35S.W. Rep. 1123) 531
Allen V. Bowman (7 Mo. App. 29) 812
V. Hay ward (L. R. 7 Q. B. 975) 654 664
V McKibben (5 Mich. 449) 690' 69i
V. Rawson (1 Man. G, & S 551, 1 C B.
567 [184.5]) 823 824
V. Taylor (26 Vt. 599 [1854]) 795
V Wiliard (57 Pa St. 374 [1868])... . 652. 66'?
V. Yaxali (1 C. & K 315) 187
Alley V Turck (Sup.) (40 N. Y. Supp. 433) ... 66
AUis V. Voigt (90 Mich 125) 272
Allphic V. Working (III.) (24 N. E. Rep. .54
[1890]) 682 691
Altman v. Altman (5 Daly 436) 493
Alton R. Co. V Northcott (15 111. 49 [1855]),
* 25, 126, 370, 389, 402, 425. 445
Amazon Irrigating Co. v. Briesen (Kans. App.)
(41 Pac Rep 1116) . . 862
Ambler v. Phillips (132 Pa St. 167 19 Atl. Rep.
71) 583, 678. 891
American Well Works v. Rivers (36 Fed. Rep
880) 277a 70?
Amas V. Dyer (41 Me 397 [1856]) . . . 861, 862
Amor V. Fearon (9 A. & E. 548) 804
Amsden v. Atwood (Vt.) (3") Atl. Rep. 311). ... 688
Amy V. Watertown (130 -U. S 320 [Wis], 22
Fed. Rep. 418) 115 119
Andersen v. Petereit (Sup.) (33 N. Y. Supp
741) .. 702
Anderson, In re (109 N. Y. 554. 17 N. E Rep
209 [1888]) 54 147,149 159
Anderson v. Mtna. Life Ins. Co. (92 N. Y. 596), 558
V. Anderson (Ind. Sup.) (40 N. E.
Rep. 131) 892a
V. Bellfield (2 C B. N. S. -^79) 340
V. Bement (Ind.) (41 N. E. Rep.
547) 266
V. Board of Public Schools (Mo
Sup.) (27 S. W. Rep. 610) 17i
V. Burchptt (Kans.) (29 Pac Rep.
315 [1892]) 36.5.430
V. Goff (Cal ) (13 Pac Rep. 73 [1887]) 310
V. Imhoff (Neb.) (51 N. W. Rep 8.54
[18921)382. 425, 426. 428. P95. 877, 878
V. Meislahn (12 Daly 150 [1883]).
428 439. 440. 493. .581. .584. 62^
V. Miller (Ala.) (19 So. Rep 302).
417, 73. 476 5224
V. Nordstrom (Minn.) (61 N. W. Rep.
1132) 70.?
V. Rogge (Tex.) (28 S. W. Rep. 106). 619
V. Whitaker (Ala.)(ll So Rep 919).
257. 61.5. 621. 834
Anderson E. Co, v. Cleburne W. I. & L Co.
(Tex.)(2'?S W.Rep 504).. . . 689
Andover V Grafton (7 N H. 298) 855
Andre v. Bodman (13 Md. 241) Ill, 572
xxxvii
XXXVlll
TABLE OF CASES,
Andrews v. Durant (11 N. Y. 35) 271
V. Garstin (31 L. J. C. P. 15) 804
V. Lawrence (19 C. B. [N S.] 768).... 569
V. Montgomery (19 Johns. 205) 687
V. Portland (35 Me. 475 [1853]).. . .697, 701
Anglo-Egyptian Nav. Co. v. Reunie (L. R. 10
C. P. 271 ) 677
Angus V. Dalton (L R 4 Q. B D. 162) 641
Annapolis & B. S. L. R. Co. v. Ross (Md.) (11
Atl. Rep. 820 [1888]) 584
Anvil Min. Co. v. Humble (153 U. S.) 746
Appleby v. Myers (Eng.) (L R. 2 C, P. 651
[1867]) 673,674,676
Applegate v. Jacoby (9 Dana 206) 315, 318
Appleton V. Bacon (2 Black [U. S.] 609) 823
V. Biiik (5 East 148) 32
Archer v. Allen Co. (3 Blackf. [Ind.] 501) 555
V. Helin (Miss.) (11 So. Rep. 3) 106
Ardagh v. Toronto (12 Ontario Repts. 236
[1886]) 477
Argall v Bryant (1 Sandf. 99) 121
Argentine v. Dagett (37 Pac. Rep. 14) 157
V. Simmons (Kan,) (.37 Pac. Rep.
14) 157
Armstrong v. Huflfstutler (19 Ala. 51) 90
V. McGlue (Addison 261) 794
Arnold v. Bourinque; (144 III. 132; 44 111, App,
199 33 N. E. Rep. 530 [1892]).. . .439, 490
V Mason (11 R I. 238 [1877]) 436
Arnoldi v. Gourin (22 Grant's Ch. (Ont.) 314).. 862
Arnot V. City of Spokane (Wash.) (83 Pac.
Rep. 1063) 141
V. Coal Co. (68 N Y. 558) 75, 87
Aronsoii v. Baker (N. J.) (12 Atl Rep. 177
[1888]) 816
Arteria.! Drainage Co. v. Dist. Board (6 L R
Ir. 515 [1881]) .726, 734
V, Rathangan D. Board
(6 L. R Ir. 515 [1881]) 734
Arthy v. Coleman (8 E & B.*1092 [1857]) 854
Ashley v. State (Ala.) (19 So. Rep. 197) 507
Ashuelot Mfg. Co. v. Marsh (1 Cush (Mass.)
507) 38
Asplund V. Mattson (Wash.) (46 Pac. Rep. 341). 684
Astley V. Weldon (2 Bos. A P 335) 318 820
Aston V. Nolan (62 Cal. 269) 642
Atascosa Co. v. Angus (18 S. W. Rep. 562 [Tex.]
189-.') 766
Atcheson v Mallon (43 N. Y. 147) 148
Athe V. Bartholomew ^Wis ) (33 N. W. Rep
110) 340
Atkins V. Barnstable (97 Mass 428 [1867]).
14.3.414 703
Atlanta v Schmeltzer (Ga.) (10 S. E. Rep 543) 623
Atlanta & F. R. Co- v. Kimberly (Ga.) (13 S. E.
Rep. 2-J? [1891]) 643,6.54
Atlanta etc. R. Co v. Manghan (49 Ga. 266
[187:^]) 86.344.421,426,428,439
Atlantic City W. W. Co. v. Reed (N. J.) (15 Atl.
Rep 10) 44
At). Coast Brew. Co. v. Clement (N. J.) (36 Atl.
Rep SB.'?) 762
Atlantic Powder Co. (9 Fed. Rep. 316) 859o
Atla'* Nat. Bank v. Holm (C. C. A.) (71 Fed.
Rep. 489) 82,147
AMee V. Fink (75 Mo. 100) _ . 514
Attorney-General v. Detroit (26 Mich. 263) 177
V. Boston (123 Mass. 460) ... 177
Audsley v. New York (C. C. A.) (74 Fed. Rep.
274) 179
Austee v. Ober (26 Mo. App. 665) 806
Austin V. Keating (3 W. R. 288) 573
Austrian v. Springer (Mich.) (54 N. W. Rep. 50). 611
Averillv. U. S. (14 Ct. of CI. 200) 810
Ayers v. Harris (Tex.) (13 S. W. Rep. 768 [1890]) 880
u. Russell (.50 Hun 288 [1888]) .. 827
Ayr Road Trustees v. Adams [11 Scotch Ses-
sion Cases 326 [1883]) 446. 469
B.
■ Baasen v. Baehr (7 Wis. 516 [18.50]),
324. 415. 428, 429. 4-32, 585. 595
Babcock v. Appleton Mfg. Co. (Wis.) ((57 N W.
Rep 33) ... 809
Bacon v. Cobb (45 111. 47) 669, 674
V. Green (Fla.) (18 So. Rep. 870). ...687, 723
V Proctor (Com. PI.) (33 N. Y. Supp
995) 719 ij-g^
Badders v. Davis"(88Ala.'367 [1889])!.' .'561, 5f>5', 566-
Badger v Kerber (61 III. 328 [1871]) 277, 428-
Badglev v. Dickinson (13 Ontario App. 494
[1887]) 838, 848, 849a
Baeder v. Carnie (44 N. J. Law 208) 67?
Bagley v. Peddie (5 Sandf. [N. Y.] 192) 319
Bailey v. Banker (3 Hill 188) 86a
V. Mayor, etc. (38 Am. Dec. 669) 664
V. Stetson (1 La. Ann. 332) 324
V. Troy & Boston R Co. (57 Vt 252)
645 646 654
V. Woods(17N. H. 365) '....'567
Baird v. Mayor (-.^3 N. Y. 254) 183, 695
Baker & Co. v. Bryan (64 Iowa 561) 757, 765^
Baker V. Herty (1 Cranch C. Ct. 249 [1805]) 59fr
V Johnson (42 N. Y. 126) 678
V Mfrs. Ins. Co. (12 Gray 603) 67ft
V. State (27 Ind. 485) . 845
V Taylor (2 Blatchf [U. 8.] 82) 816
Baldwin v. Von Micheroux (Sup.) (25 N. Y.
Supp. 857) Sia
Ball V. Doud (Oreg.) (37 Pac. Rep. 70 [1894],
392, 412, 414, 415 595
V. Newton (7 Cush. [Mass.] 599) 1»
V. Presidio Co. (Tex ) (27 S. W. Rep. 702) . . 46-
V. Stover (31 N. Y Supp 781) . 105
Balles V. Bass F. & M. W'ks (Ind.) (28 N. E. Rep.
819 [1891]) 530
Ballman v. Heron (Pa. Sup.) (28 Atl. Rep 914), 76?
Baltimore v. Keyset (Md.) (19 Atl. Rep.706) .... 135-
V Reynolds (20 Md. 1) 83.
Baltimore B. Co. v. Callahan (Md.) (33 Atl.
Rep. 460) .105
Baltimore Cemetery Co v. Coburn (7 Md 202)
379 54.5 553 565
Baltimore & O. R Co. v. Brydon (65 Md 198) . ' 340
V. Canton Co. (70 Md.
405 17 Atl Rep. 394).
343.428.429.510,511
V. Gallahue (14 Gratt.
[Va.l .563) 762-
V Laffertvs (14 Gratt
478 [1858]) .. ..428. 787
V. Laffertys (2 W. Va.
104) 719-
V. McCullough (Va.)
(12 Gratt. 595 [1855]),
762. 763-
V. Polly Woods Co.
(Va.) (14 Gr^tt. 448
[1858]),343.365,414,421,
425. 426, 428. 4-37, 510. 763-
V. Reaney (42 Md. 117).. 643
V. Resley (7 Md 297).428 719
V. Scholes (Ind. App.)
(43 N. E. Rep. 1.56)
344 345, 428
u. Stewart (Md.) (29 Atl.
Rep. 964) ...221,695. 739
Baltimore & L. T.Co. v. Cassell (66 Md. 419
[1886]) ' 866,887
Banbury & C. D. Rv. Co. v. Daniel (54 L. J. N.
S. Ch. D 265 [1884]) 27?
Banchor v. Mansel (47 Me. 58) 76
Bancroft v. Scribner (C. C. A.) (72 Fed. Rep.
988) 310
Bank V. Bissell (72 N. Y. 615 [1878]) 618
V. Fitzhugb (1 Har. ^ G. 2.39) . 615
v. Gries (35 Pa. St. 423 [11 Casey] [1860]),
703. 86?
V Hall (Pa.) (24 Atl Rep. 665) .58
V Hendrie (49 Iowa 402 [18781) 84
V. Webb (Ky.) (33 S W. Rep. 1109) 429
Banks V. Moors (120 Mass 459) 24?
Bannister v. Patty's Exc'rs (35 Wis. 215 [1874])
413. 417, 424, 428. 477
V. Reed (1 Gilman 92) 439. 682
Barber Asphalt Paving Co. v. Harrisburg (62
Fed. Rep .565). 44-
V Hunt (100 Mo.
22) 16)
TABLE OF CASES.
xxxix
Barber Asphalt Paviiifr Co. v. UUman (Mo.
Sup.; (38 S. W. Rep. 458) 175, 334
Barber v. Burrows (51 Cal. 404) 797
V. Hildebraud (Neb.) (60 N. W. Rep.
594) 128
V. Rose (5 Hill [N. Y.] 76 [1843]). .. .325, 726
V. Chicago (ill.) (38 N. E. Rep. 253) . ..219
Barclay v Alsip (Pa. Sup.) (24 Atl. Rep. 1067). 201
V DecKerhoof (171 Pa. St. 378, 33 Atl.
Rep. 71 [1895]) 365, 396, 511
V. Messenger (43 L J. Ch. 449) 324. 572, 574
V. Williams (26 III. App 2i3 [1887] .42, 85
B^rcus V. Hannibal, etc., Pk. Rd Co. (26 Mo.
102) 390,468
Barder V Carnie (44 N J. Law 208) 58
Bardwell v. Ziegler (Wash.) (28 Pac. Rep. 360).. 627
Bare v. Village of G (72 N. Y. 463-472) 53
Barge v. Bousfield (Minn.) (68 N W. Rep. 45). 65.5
Barker v. Belknap (2? Vt. 700 [lfc55]). . .424, 428, 482
V. Nichols (Colo. App.) (31 Pac. Rep.
1024^ 469
V. Town of Perry (la.) (26 N. W. Rep.
100 [1885]) 880
V. Troy & Rutland R. Co. (27 Vt. 766
[18551) 123. 125, 372, 413. 506, 553. 580, 601
Barkley v. Oregon City (Or.) (33 Pac. Rep. 978) 157
Barnett v. Mayor (31 N. J. Eq 341 [1879]) . 293, 294
Barney's Ex'r v. Bush (3 Cow. [N. Y.] 1.51) .. 324
Barney v. Giles (120 111 154, 11 N. E. Rep. 206
[1887]) 412.414,415. 474, 476
Barnhillv Howard (Ala.) (16 So. Rep. 1) 126
Baron de Worms v. Mellier (16 Equity 554
[1873]) 426a
Barr v. Chandler (N. J.) (20 Atl. Rep. 733
[1890]) 530
Barras v. Pomeroy Coal Co. (Neb.) (56 N W.
Rep. 890) Ill
Barrett v. Austin (Cal.) (31 Pac. Rep. 3 [1892]). 669
Barron v. Cobleigh (1 1 N H. 557) 891
Barrus v. Phaneuf (Mass.) (t4 N. E Rep. 141) .898
Barry v. Bennett (7 Met 2.54. 3.54) 606, 891
V. St Louis (17 Mo. 121 [1852]) ..653. 660, 667
Bartholomew v. Jackson (20 Johns [N Y.] 28)
566. 567
Bartle v. Des Moines (38 Iowa 414 [1874]) 47
Bartlett v. Crittenden (5 McLean [U. S.] 32). .. 816
V. Stanchfield (148 Mass 394 [1889])
561,564. .565. 566,581
Barton v Herman (11 Abb. Pr. [N. S.] 378
[1872]) 413, 417, 428, 439, 468
t; McDonalQ (81 Cal. 267) 642
Basey V. Lavitt (12 Me 378) 135
Bash V Christian (77 Ind 290) 428
Basket v Moss ^N. C.) (20 S. E. Rep 733) 73
Basset r. Sand born (9 Gush. 58) 575
Bass F. & F. Works v Parker County (Ind.)
(115 Ind 234 [1888], 32 N. E. Rep. 1125),
175, 380, 556, 756
Bast V. Leonard (15 Minn. 304) 644
Basye V. Ambrose (28 Mo. 39) 316
Bateman v. Mayor, etc. (3 H & N. 323) 35, 43
Bates V. Lumber (iJo. (Minn.) (57 N. W. Rep.
218) 14
V. Trustees Masonic Hall (Sup.) (27 N.
Y. Sup. 9.51) 762,764
Batterbury v. Vyse (2 Hurls. & Colt. 42),
413, 415. 425. 426. 427, 428, 440, 847
Bauer v. Sampson Lodge (102 Ind. 262) ... 344, 405
Cauk V. Hall (Pa.) (24 Atl. Rep. 665) 58
Baum V. Covert (62 Miss. 113 [1884])
553, 558. 561,566.567,595
Baum V. Reay (Cal.) (29 Pac Rep. 117) . . . 877
Baumeister v. Markham (Ky.) (39 S. W. Rep
844 [1897]) 6.38, 641.645
V. Patty's Execs (35 Wis. 217
[1874]) 489,474. 566
Beach v. Raymond (2 E. D. S. [N. Y.] 496
[18.54]) 814
Beai V. Polhemus (34 N. W. Rep .532) 73
" V Roanoke (Va.) (17 S. E. Rep 738) 507
Bean V. Kinnear (23 Ont. Rep. 31.3) 310
V. Macomber (33 Mich. 127) 428
Beard v. Kirk (11 N. H. 397) 891
Beardmer v. London & N. W. Ry. (1 Mac. & G
112) 218
Beardsley v. Cook (N. Y. App.) (38 N. E. Rep.
109) .- *; 728
Reason v. Kurz (66 Wis. 448 [1886], 29 N. W.
Rep.230) 123.626
Beatlie v. D., L. & W. Ry. Co. (90 N. Y. 643
[1882]) 377, 60&
V. McGregor (10 Scotch Sessions Cases
1094 [1883]) 897
V. Pool (13 S. Car. m%) 119.
Beatty v. Thileman (8 N. Y. Supp. 645) 657
Beaver v. Trustees (19 Ohio St. 97) 138, 181
Beazie V. Bangor (51 Me. 509) 701
Beck V. Allison (5b N. P. 366) 706.
Becker v. Hecker (9 Ind. 497) . . 703
V Natl. Prohib. Park Co. (Sup.) (23 N!
Y. Supp. 380) 689
V. Phila. (Fa.) (16 Atl. Rep. 625 [1889]).
76, 266, 689
V. West. Un. Tel. Co. (11 Neb. 87 [1881]) 794
Beckett V. N. W. Masonic Aid Ass'n (Minn.)
(69 N. W. Rep. 923) 883
Bedford Belt Ry. Co. v. Palmer (Ind. App.) (44
N. E. Rep. 686) 887
Beecher V. Shuback (Com. PI.) (23 N. Y. Supp.
604 [Sup.] 37 N. Y. Supp. 325),
428,438.439,506.721,731,764
Beeckman v. Landers (Cal.) (43 Pac. Rep. 1125) 445-
Beers v. Milwaukee Co. (Wis.) (67 N. W. Rep.
936) 582
V. Strimple (Mo. App.) (22 S. W. Rep,
620) ...20,21
Beeston v. Caller (2 C. & P. 607) 804
Beha v. Ottenberg (6 Mackey [D. C] 348) 703
Behan u. Ohio(75Tex. 87)... 59^
Beharrell v. Quimby (Mass.) (39 N. E. Rep.
407) 2 1 , 473.
Pelair v. C. & N. W. R. Co. (43 la. 662) 884
Bell V. City of Rochester (30 N. Y. Supp. S65) . 171
V. Henderson (6 How. [Miss.] 321) .. . 90
V. Keepers (Kans.) (14 Pac. Rep. 542 [1887]) 126
V. Paul (Neb.) (.52 N. W. Rep. 1110) 19, 20
V. Sun Print. Co. (42 N. Y. Super. Ct. 567) 413
Bellinger v. N. Y. Central R. Co. (23 N. Y. 42). 891
Belshaw v. Colie (1 E. D. Smith 213 [1851]) .... 690
Belt V. Cook (3 Cranch C. Ct. 666 [1829]) .. .567, 569
Benedict V. City (44 Wis. 495) 891
V. Hood(13JPa St. 289) 762^
Beniteau V. Detroit (41 Mich. 116) 135
Benner v PhcBnix T. & T. Co. (Sup.) (30 N. Y.
Supp. 290) : 689,696
Bennett v. Davis (Cal.) (45 Pac. Rep. 684). . 762
V. N. British Ins. Co. (8 Daly [N. Y.]
471 892a
V. Pierce (28 Conn. 315) 123
V. Shaughnessy (6 Utah 273 [1889]),
6^6, 689'
V. Truebody (66 Cal 509) 6.54.
V. Whitnev (94 N. Y. 302) 854
V. Zutzel (34 III. App. 295) 702:
Benson v. Miller (Minn.) (57 N. W. Rep. 944
[1894] ) 502. 530, 720, 723',
V. Shotwell (Cal.) (37 Pac. Rep. 147),
413, 414, 561
Bentley v. Adams <'Wis.) (66 N. W. Rep. 505). . 862
V. State (Wis.) (73 Wis. 416. 41 N. W.
Rep. 338 [1889])
Bently v. Davidson (74 Wis. 420. 43 N. W. Rep.
139 [1889]) 428,439,545
Benton Co. v. Patrick (54 Miss. 240),
370, 879, 380, 554, 555
Berg V. Parsons (Sup.) (35 N. Y. Supp. 780)... . 644.
Bergen Neck Ry. Co. v. Pt. Breeze F. & J. Co.
(N. J.) (30 Atl. Rep. 584) .... 891'
Bergen v. New Orleans (35 La. 523) 687
Bergin v. Williams (138 Mass 544 [1885])... 123, 216
Berks Co. v. Ross (3 Biun [Pa.] 520) 20
Berlin Iron Bdge. Co, v. Bonla (Pa. Sup.) (36
Atl. Rep. 867) 704
V. San Antonio (62 Fed.
Rep. 882) 53
Berlinquet v. The Queen (13 Canada Sup. Ct.
26 [1S77]) 410. 5.37, 595
Bermudez Asph Pav. Co. v. Critchfield (62 111,
App. 221) ... 73,
Bernstein v. Downs (Cal.) (44 Pac. Rep. 557)., 76,
xl
TABLE OF CASES.
Bernstein v. Meech (N. Y. App.) (29 N. E. Rep.
255; ... 69i
Bernz v. Marcus Say re Co. (N. J.)(30 Atl. Rep.
21 . reversing 26 Atl Rep 91 1) 426o, 72.
Berreti V. Weber (125 N Y 18 [1890]) 28
Berriman v. Marvit (59111 App. 440) 803
Berry v. Tacoiua (Wash.) (40 Pac. Rep. 414).. 147
V ThompsoL (6 H «& J. 89) 567
BertoD V. Herman u (11 Abb. Pr. [N. S-l [N. Y.]
382- 474
Bertrand v. Byro (5 Ark 651 [1844]) 572
Bestor v. Wathec (60 III 138 [1871]) 84. 85
Beswick u Plati (140 Pa St 28 [1891]),
219 239, 240. 445. 446, 468, 566, 70i
Bethe' v Salem Imp. Co (Va,) (25 S. E Rep
304) 687
Bethlehea. V. Armis (40 N H 34) 13
Bethmao v. Harness (W. Va.) (26 S. E. Rep
2-1 629
Bett V Cook (3 Cranclj C. Ct 666 [1829]) 566
Bevac v. Atlanta Nat Bk (111.) (31 N. E. Rep.
6'^% 891
Bever V. Spangler (la.) (61 N. W. Rep. 1072)... 887
Beveridge v. N. Y. El R. Co (112 N. Y. 1 [1889]) 37
Bil.bt Admr. v. Norfolk & W. R Co. (87 Va.
7ll 14 S E. Rep 176 [1892]) 656, 667
Bice V. Marquette etc., Co. (Mich.) (55 N. W.
Rep 382' Ill
Bierbauer v Wirth (5 Fed Rep. 336 [1880]) .... 74
Bierschen.? V. Stokes (26 N Y. Supp. 88) Ill
Bietry v. New Orleans (2"iLa. Ann. 149) 674
Bisler v. Mayoi of N Y. (5 Abb. N. Cas. [N.
Y.] 51.9 HuL 253). 138.143,154,411
Bimbauer t/. Gleason (48 Hun 614) 573
Bir J V. McGahej (2 C. «& K. 707) 340
V Smith (64 E. C. L. R. 785) : 388
BirniingLam City of, v. McPoland (Ala.) (11
So Sep. 427) 877
Birney v. Wabash, etc., R. Co (20 Mo. App
4?0i 695
Bisnop of Herefora v. Griffin (16 Sim 190) ... 819
Bishop V. Busse (69 111 403) 561
V Price (24 Wis 480) 703
Bisley v J., B. & W. Ry. Co (1 Hun 202 [1874]) 38
Bi-Spool S. M. Co V. Acme Mfg. Co. (Mass.)
(26N. E Rep 991 [1891]) 88
Bissei v. Rodeo (34 Mo. 63 [1864]) ..17, 25'?
Bisse:; v. Collins (28 Mich 277) 266
V Mich. Southern . etc., R. Co. (22 N. Y.
262'. ' 87-^
V N- Y Cent. R. Co. (25 N. Y. 448) 864
Bixbj V. Wiiharasoo (25 Minn 481) 702
Blackwel. v. Wiswal. (24 Barb. 355) 656
Blag borne v Hunger (Mich.) (59 N. W. Rep.
657) 66
Blair Brick Co. v. Walz (Com. PI.) (1 Ohio L
D 193) 765
Blair v. Waco (Tex) (C. C A.) (75 Fed. Rep.
80C, 507
Blake v Ferrias (5 N. Y 48; 638, 666
t). Izarc (16 W.R 108^ 272
V. Pine Mountain Iron & Coa» Co (C C.
A.M76Hed Rep.) 687
1) Thirst (2 H. & C 20) .654
V Voighi (N. Y. App.) (31 N. E Rep. 256
[189.']> loa
Blakesiee v Fisher (Sup.) (21 N. Y. Supp. 217) 764
V Holt (42 Coon. 226, 703
Blanchara v. Blackstone (i02 Mass. 343),
8!*, 326 689
V Detroit etc., R Co. (31 Mich. 43) 706
Blandinp v. Davenport, etc. N. R Co. (la.) (55
N W. Rep 81) 17,33,376
Blaccty u Giifflth (3 Fish 615 [I860], 824
Blaze u Gil; (Sup.) (23 N. Y. Supp 373) 589
BleokiroQ v. Statt. (Neb.) (5S N. W. Rep. 587). . 88i
Blethec v Blake (H Cal. 117 [1872]) 413, 4r<
Blis^ V. Smith (3^ Beavan 508 [1865]) 426a 428
Blodgett V Amer. Nat. Bank (49 Conn. 9)..... 678
Blood V EoosdSVt 625) 670
Bloodgoou V Ingolshy (1 HiU [N. Y] 388) 474
•Bloora V. Hazzard (Cal.) (37 Pac Rep 1037). .796
V. P Cox Shoe Manlg. Co (Supp.) (31
N Y.S 517) 126
BloxaOi V Elsee (i C- & P. 558) 823
Blount V. Guthrie (N. C.) (5 S. E. Rep. 890) . . 564
Blue V Aberdeen & W. E. R Co (N. C.) (23 S
E Rep 275) 627, 883
Blum V. Brown (Tex.) (33 S. W. Rep. 145) 70a
Blum b V. City of Kansas (84 Mo 112) 667
Blunt V. Patten (2 Paine [U. S.] 393 [1828])
816, 817, 822
Blythe v. Poultney (31 Cal. 233) 699, 701, 728
V. Robinson (Cal.) 37 Pac. Rep 904).... 761
Board V. Byrne (67 Ind. 21) 595
V. Gillen (59 Miss. 199) 766
V. Kemp (Ind. App.) (43 N. E Rep. 314) 173
V. Newlin (Ind.) (31 N. E. Rep 465),
446, 467, 657
V. Salt Lake P. B. Co. (Utah) (44 Pac.
Rep. 709) 766
Board of Commrs. v. Branham (C. C.) (57 Fed.
Rep. 179) 20
V. Bunting (Ind.) (12 (N. E.
Rep. 151 [1887]).... 555, 813
V. Castetter (Ind.) (33 N. E.
Rep. 980) 982
V. O'Connor (86 Ind. 531, 35
N. E. Rep. 1006),
125.275, 446, 468 554, 569, 766
V. The L. M. & B. R Co. (7
Amer.Corp.Cas. 26),37, 43
Board of Commissioners of Henry County v.
Gillies (Ind. Sup ) (38 N. E Rep. 40)...l39. 171, 177
Board of Commissioners of Larimer County
V. Lee (Colo App.) 32 Pac Rep. 841) 898, 900
Board of Ed, v. Duquesnet (N. J. Ch ) (24 Atl.
Rep. 922) 16
V. First Natl. Bk. (Sup.) (24 N. Y
Supp 392) 439, 446, 726
V. Grant (Mich.) 64 N. W. Rep
1050 17
V. Neidenberger (78 111. 58) 766
V. Shaw (15 Kans. 33) 421
Board of Public Library v. Arnold (60111. App
328) 445, 789
Board of Trustees of I. & M. Canal v Lynch
(10111.521) 399
Bocock V. Pavey (8 Ohio St. 270) 500, 503
Boden v. Maher (Wis.) (69 N. W. Rep. 980) ... 481
Boehm v. Lies (18 N. Y. Supp. 577) 122
Boettger v. Scherpe & K. A. I. Co. (Mo.) (27 S.
W Rep 466) 886
Boettler v. Tendrick (73 Tex. 488. 11 S. W. Rep.
497 [1889]) 366,369.445,446,469
Bogan V. Daughdrill (51 Ala 312) 480
Bogg V. Pearse (10 C. B. 534) 804
Bohali V. Neiwall (la.) (39 N. W. Rep. 217
[1888]) . 40
Bohrer v. Stumph (31 III. App. 139) 702
Bolles V. Sachs (Minn.) 33 N. W. Rep. 86S [1887]),
123 216, 700
Bond V. Carpenter (R. I.) (8 Atl. Rep. 539
[1887]) 682 701
V. The Mayor of Newark (19 N. J. Eq
376 [1869]) 388 392
Bonesteel v. The Mayor (22 N. Y. 162 [I860]).
138, 157, 388, 390, 554
Bonner v. Mayfleid (Tex.) (18 S. W Rep. 305), 891
V. McCreary (Tex.) (35 S W. Rep 197), 120
Bonnett v. Glattfeldt (120 111. 166 [1887], 3 West
Rep. 637) 265. 389, 399 440, 682, 877
Bononi v. Blackhouse (El., Bl. & El. 622) 643
Boody V. Rutland & B. R. R. Co. (24 Vt 660, s
c. 3 Blatch. U. S. C C. 25 [1853]),
569, 572 573. 57'/, 580, .595, 610
Boon V. Reed (Sup.) (23 N. Y. Supp. 421) 83'1
V Utica (26 N. Y Supp. 932) 163
Book V. New Castie W. N. Co. (115 Pa. St. 499). 702
Booth V. City of Bayonne (N. J.) (28 Atl. Rep.
381) 171, 175, 176
V. Spuytet. Duyvil R. R. M. Co. (60 N.
Y. 487) 678
Boren v. Commissioners ot Darke Co. (21
Ohio St. 311 [1871]) 155. 178
Boston Elec Lt. Co. v. Cambridge (Mass.) 39
N.E Rep 787) 35 44, 54S
Bostof. Ice Co V. Potter (123 Mass 28) 90
Boston & L R Corp v Nashua & L. R. Corp
(139 Mass. 463) 348, 528
TABLE OF CASES.
xli
B. & M. R. Co. V. Penny (38 Iowa 255 [1874]). .. 574
Boston Water Power Co. v. Gray (6 Met. 169
[1843]) 45>8 432, 43.3
Bostwiek «. Chapman (60 Conn. 551) 43
Boswell V. Laird (8 Cal. 469 [1858]),
243, 366, 640u. 642. 643, 644, 654. 661
Boteler v. Roy (40 Mo. App. 234). .228, 481, 700, 701
Bouck V. Bouck (Minn.) (59 N. W. Rep 547).... 479
Bougliton V. 8mith (142 N. Y. 674 22 K. Y.
Supp.148) ; 702,877
Boultoii V. Jones (2 H. & N. 564) 90
Bourngueres v. Boultou (54 Cal. l46 [1880]) .... 87
Bouruique v Arnold (33 111. App. 303 [1889])
445, 490
Bouton V. Supervisors of McDonough Co. (84
111.384) 372,376,379,766
Boutwell V. Townsend (37 Barb. 205) 863
Bowden v. Crow (Tex.) (21 S. W. Rep. 612) . . . 427
Bowe V. United States (42 Fed. Rep. 761 [1890]),
295, 553, 579, 580
Bowen v. Aubrey (82 Cal. 566) 762
V. Cooper (7 Watts [Pa.] 311) 524
V. City of Huntington (W. Va.) (14 S. E.
Rep 217). 887
Bower v. Peate (1 Q. B. Div. 321 [1876]),
641 641a, 646, 664
Bowery National Bank v. Mayoi- (63 N. Y. 336
[1875]).. 438.859a
Bowman v. Stewart (Pa.) (30 Atl Rep. 988). . . 433
Box V. Costello, (27 N. Y. Supp. 293) 494
Boxam v. Elsee (1 Car. & P. 56'' ) 824
Boyd V. City of Milwaukee (Wis.) (66 N. W.
Rep. 603) ... 334
V. Greene (Mass.) (39 N. E. Rep. 277) 109
t>. Meighan (48 N. J. Law 404 [1886]; 3
Cent Rep. 689) 440, 596, 682, 694
V. Paul (Mo.) (28 S. W. Rep. 171) 106
Boyle V. Agawan Canal Co. (22 Pick. [Mass]
381 [1839]) 560 678, 679
Boynton v. Lynn Gas Lt. Co. (124 Mass. 197
[1878]) 379 583
Bozarth v. Dudley (44 N. J. Law 304, 15 Vroom.,
27 Alb. L. J. 76 [1882]),
572, 577, 583 675, 697, 702, 703
Brabazon v. Seymour (42 Conn. 555) . . ... 568
Bracco v. Tighe (27 N. Y. Supp, 34) 702
Brace v. Wehnert (25 Beav. 351) 705, 706
Braceville Coal Co. v. People (147111. 66) 144
Brackett v. Lubke (4 Allen 138) . . 662
Bradbury v. Butler (1 Colo. App. 430, 29 Pac.
Rep. 463 [1892]) 623
Bradfleld v. Trustee? (30 Geo. 1) 244
Bradford v. Pontiac (III. Sup.) (46 N. E. Rep.
794 [1897]) 220
V. Whitcomb (Tex.) (32 S. W. Rep.
571) 7.55, 758
Bradley v. Brennick (N. Y. C. P., Dec. [1878]), 442
. V. Fisher (13 Wall [U. S.] 335) 845
V. Wheeler (44 N. Y. 495 [1871]) 618
Bradlv v. City of New York (N. Y. App.) (30
N. E Rep. 757) . . 700
Bradley Currier Co, v. Bernz (N. J. Ch.) (35 .
Atl Rep. 832) 417 "
Bradner v. Roflfsell (N. J.) (29 Atl. Rep 317 -
[1894]; N. J. Err. & App. 31 Atl. Rep. 387).
390, 427, 428. 442
Bradstreet v. Baker (14 R I. 546) 319
Brady f Anderson (24 111 112). .. 310
V Mayor of N. Y. (N. Y. App.) (.30 N. E.
Rep. 7'57 [1892]) . . 48.5, 445. 440, 460. 698
V. Mayor -(20 N Y. 312; 1 Bosw. 173
[18?«l> 5.3,157, 173
V. Mayor (68 N. Y. 312) 143
V. Nagle (Tex. Civ. App.) (29 S W. 9<3). 31
V. Nally (N. Y. Apn.) (45 N. E. Rep. 547). 129
V. New York (112 N. Y. 480) . . Ifil
V. New York (.5."^ N. Y. Super Ct. 4.5) .... 161
Bragdon v. Hatoh (77 Me. 4'i'i) 1.35
Bragg u. Blf-t? (7 D. C. 10.5) ".... ".' " ' 625
Braegp V. Gpddes (08 Til. 30) . 214, 215 916
Bramble V. Hiin (22 N. Y. Supp 849) '..... 885
Brandt v. Sohuhman (60 Mo. Anp. 70) 68?
Bi-aney v Town of Millhiiry (Mas??.'* (14 N F
Rnp. 1060 [1886]) ... . .371. 387, 49l' 623
Brannock v. Elmore (114 Mo, 55). 654
§6
Brass Foundry Works v. Parker Co. (115 Ind
^34.) 174
Bratton v. Ralph (Ind. App.) (42 N. Y. Rep. 644) 675
Braun V. Winans (37 111. App 248) 370,414
Braunstein v. Accidental Ins. Co. (1 B. & S.
782. 101 Eng. Com Law. R. 783) 340 407
Bray v. Loonier (Conn.) (23 Atl. Rep. 831) 555
Breault v. Archambault (Minn.) (67 N. W Rep.
348) 861
Breckenridge v. Ormsby (1 J. J, Marsh 836).., 85
Brecknock Nav. Co. v. Pritchard (6 T. R. 750)
669, 673, 674, 678
Breneman v. Harvey (70 la. 480) 766
Brennan v. Chapin (19 N, Y. Supp, 237) m
V. Clarke (29 Neb. 385, 45 N. W. Rep.
472 [1890]) 20,817
V. Vogt (Ala.) (11 So. Rep. 893).. . . 892a
Brenneman v. Bush (Tex.) (30 S. W. Rep. 699). 618
Breslin v. Brown (24 Ohio St. 565) 148
Brester v. Pendell (12 Mich. 224 [1864]) Ill
Brevoort v. Detroit (24 Mich. 322) . . 171, 175
Brewster v. Bates (30 N. Y. Supp. 780) 125
V Wooster (9 N. Y. Supp 312) 685
Bridge Co. v. McGrath (134 U. S. 260) 384
Bridges v. Hyatt (.2 Abb. Pr. 449) 820
V. Paige (13 Cal. 640 [1859]) ... ." 836
Bridgmans v. Corey's Estate (Vt.) (20 Atl.
Rep. 273 [1891]) 892
Briggs r. Georgia (15 Vern. 72) 51
Brighton v. Lake Shore & M. S. Ry. Co. (Mich,)
(61 N. W. Rep. 550) 801
Brin v. Larimer (62 111. App. 657) 764
BrinkerhofI v. Elliott (43 Mo. App. 185) 669
Brinkman v. Eisler (16 N. Y. Supp. 154) 76
Briscoe v. Litt (Sup.) (42 N. Y. Supp. 908) 809
Britney v. Bolding (28 Mass. 53) 579
Britton v. Mayor (21 How. Pr. (N. Y.) 251) 556
V. Turner (6 N H. 481 [1834])
411, 422, 426, 699, 703
Broadhead v. Wiltse (35 Iowa 429; citing also
6 Iowa 380, 386, and 80 Iowa 456) 891
Brockway v. Innes (39 Mich. 47 [1880]) 863
Brodeck v. Farnum (Wash.) (40 Pac. Rep. 189)
131,310,325,685
Bronmel v. Rayner (Md.) (11 Atl. Rep. 833
[1887]) .. 700
Brooks & F. Co, v. Patterson (Mich.) (63 N. W.
Rep. 436) 277
Brooks V. Martin (2 Wall. 78 [1863]) 5
V. Wright (Mass.) (13 Allen 72) 21
Brower v. Thompson Lumber Co. (Oreg.) (4S
Pac. Rep. 6.59) 17
Brown v. Accrington Cotton Co. (3 H. & C 511,
519) 243.666
V. Amer. Finance Co. (31 Fed. Rep.
516) 58
V Bateman (L. R. 2 C. P. 272 [1867]).... 272
V. Bellows (4 Pick [Mass.] 179) 428
V. Burr (Pa.) (2 Atl. Rep. 828) 887
V. Byrne (3 E. & B. 715, Leake's Digest
of Contracts 196) 617
V. Catawba Riv. Lumb. Co, (N. C.) (23
S.E. Rep. 253)' 562
«. Cole (45 Iowa 601 [1877]) 620
V. Croft (6 C & P. 16, note) ;••■•• ^^
V. Deoker (142 Pa St. 640, 21 Atl. Rep
903 [1891]) 219, 383, 416, 445 446
V. Eccles (2 Pa. Super. Ct. 192) 794
V. Everhard (52 Wis. 205) 5.59
V. Foster (1 1 3 Mass. 136) . . ■■■••■' 340
V Gill & Fisher (50 Fed. Rep. 941) 6^7
V. Howard (2 B. &B. 73) ^ 121
V. Jenks (Cal.) (32 Pac. Rep 701). . .^_ 334
V. Mavor (3 Hun 685, t3 N. Y. 239
ri8751) . ''•^< •'*'
V. N. Y. C'^nt., etc., R. Co (87 N. Y
Supp. 69) .^l
V. Overbury (11 Exch. 715) ... ._^.^.. 438
V. Pac. etc.. R. Co. (5 Blatchf. [U. S.I
M--,) 8o9a
V. Providence R Co. (12 R. I 238 [18791. 885
V. Rnyal Ins. Co (1 E. & E.8.53. 28 L. J.
Q. R 27.5, Ea-l .T.) ,-.••, „, ^'*
V. St Paul M & M Rv. Co. (Minn.) 31
N W. Rep. 941 [1887]) ••• 6M
xlii
TABLE OF CASES.
Brown v. Strimple, (21 Mo. App. 338) 3:i4
V Werner (40 Md. 15) 643
V. Wine Hill (3 Wash. 524, 28 Pac. Rep.
1037) 413,417
Brown & H. Co. v. Wunder (Minn.) (67 N. W.
Rep. 357) 101
Brownlee v. Lowe (Ind.) (20 N. E. Rep. 301
[iy89]) 62
Bruce v. Brown (Tex.) 25 S. W. Rep. 444) 131
V. Pearsall (N. J.) (34 All. Kep. 982). ... 183
Brule. In re (D. C.) (71 i^ed. Rep. 943) ... 74
Brumby v. Smith (3 Ala. 123 [1841]) 438, 676
Brundsen v. Local Board (1 U. & E. 272 [1884]) 549
Brunsden v. Beresford (1 C. & E. 125).. 440
Bruiisdon v. Staines Local Bd. (1 (Jab. & El.
272) 548, 549
Bruuson v. Henry (Ind.) (39 N. E. Rep. 256) ... 129
Bryan v. Beckley (Litt. Tel. Cas. [Ky.] 91)... 892o
V. Bell (Conip. PI.) (10 N. Y. Supp. 693).. 428
V. Idaho Quartz Min. Co (Cal.) (14 Pac.
Rep. 859).. 122
Bryant, 7n re (4 Ch. D. 98) 859a
Bryant v. Flight (3 Jur. 681 [1839]) 340
V. Ondrak (Sup.) (34 N. Y. Supp. 384).. 797
V. Stillwell (24 Pa. St. 314) 566
Bryson v. Johnson Co. (Mo.) (13 S. W. Rep.
239) 157, 796
Bube V. Johnson (19 Wend. 500) 669
Buch V. Chapman (2 G. Gi-. 41) 575
Buchanan Bdge. Co. v. Walters (Com. PI.) (3
OhioN.P.176) 143
Buchannan v. State (59 Ind. 1, s. c, 17 Alb. L.
J. 242) 896
Bucher v. Cheshire R. Co. (125 U. S. 555)
V. Fitchburg R. Co. (131 Mass. 156) ... 59
V. Schuback (Com. PI.) (23 N. Y. Supp.
604) 439
Buck V. Amidon (41 How. Pr. (N. Y.) 376) 187
Buckalew v. Tennessee (C, I. & R. Co. (Ala.)
20 So. Rep. 606) 888
Bucki V Seitz (Fla.) (21 So. Rep. 576) 797
Buckley v. City of Tacoma (Wash.) 37 Pac.
Rep. 441) 141
Buckman v. Landers (Cal.) (43 Pac. Rep. 1125),
438, 727
Buckmaster v. Jacobs (27 La. Ann 626) 216
Buckwalter v. Russell (Pa.) (13 Atl. Rep. 310
[1888]) 348. 428
Budd v.. Scudder (N. J. Ch.) (26 Atl. Rep.
904) 85
Buehler v. Reich (Com. PI.) (18 N. Y. Supp.
114 [1892]) 891
Buena Vista Co. v. McCandlish (Va.) (23 8.
E. Rep. 781) 796
Buffalo V. Bettingen (76 N. Y. 393) 557
V. Holloiiay (3 Seld. 493) 666
Buffalo, City of, v. Clement (19 N. Y. Supp
846) . . . . 275, 653. 663, 664
Buffalo Cem. Co. v. McNaughton (Sup.) (35 N.
Y.Supp-453) 17,757
Bugbee Land Co. v. Brents (Tex. Civ. App.)
(31 S. W. Rep. 695) 890
Bulkley v. Brainerd (2 Root [Conn.] 5) 326, 689
Bullman v. N. B. & M. Ins. Co. (Mass.) (34 N.
E. Rep. 169) 365
Bullock V. Dommett (6 T. R. 65) 673
Bui wrinkle v. Cramer (3 S. E. Rep. 776 [1887]).
122, 796
Bundy v. Catto (61 111. App. 209) . 266
Buim V. The People (45 111. 397 [1867]) 859
V. Prather (21 111. 217) 669
Bupp V. O'Connor (Tex.) (21 S. W. Rt'p. 619).. 561
Burch V. New Lindell Hotei Co. (7 Mo. App.
583) 188,796
Burck V. Taylor (14 Sup. Ct. Rep. 696) 293
Burge V. Cedar Rapids etc., R. Co. (32 Iowa
101) 722
Burger v Roelsch (Sup.) (28 N. Y Supp. 460) . . 76
Burgess v. Jefferson City (21 La. Ann. 143) .. 163
V. Wareham (7Grav [Mass.] 345). .. 491
Burke u Dunbar (128 Mass.' 499) 240 678
V. Frye (Neb.) (62 N. W. Rep 476) ... 31
V. Kansas City (31 Mo. App. 570) 219. 388, 390
V. New York (Sup.) (40 N Y. Supp. 81).. 589
V. Turney (54 Cat 486) 135
Burkham v. Martin (54 Ala. 122) 69'
Burkhardt v. Georgia School Tp. (S. D.) (69 N.
W. Rep. 16) 689
Burn V. Miller (4 Taunt 745) 701, 703
Burney's Heirs v. Ludeliug (La.) (16 So. Rep.
507) 73
Burnside v. Potts (23 111. 415 [I860]) 486
Burrell v. Boston (Mass.) (2 Clifford 590 [1867]) 52
Burruss v. Hines (Va.) (26 S. E. Rep. 875 [1897]) 691
Burton v. Willen (6 Del. Ch. 403) . . 427
Bush V. Jones (2 Ten u. Ch. 190) 703
Busse V. Agnew (10 111. App. 527) 392, 569
Butcher v. Scott (1 Pa. L. J. Rep. 311) 533
Butler v.Charlestown(? Gray [Mass.] 12),555, 609, 616
V. Chicago, B. & Q. R. Co. (54 N.W. hep.
208) 877,886
V. Duncan (24 Wend. 447) 407
V. Greene (Neb.) (68 N. W. Rep. 496). 348, 484
V. Townsend (126 N. Y. 105) 656-
r. Tucker (24 Wend. [N. Y.] 449)
340, 414, 415, 428, 439-
Butter V. Ashworth (Cal.) (36 Pac. Rep. 922)... 853-
Butterby v. Vyse (2 H. & C. 42) 414
Butterfield v. Byron (153 Mass. 517, 27 N. E.
Rep. 667 [1891]) 674,676,677
Button V. Hibbard (Sup.) (31 N. Y. Supp. 483). 125-
Buxton V. Cornish (12 M. & W. 426) 569
V. Lister (3 Atk. 384) ... 707"
Byars v. Thompson (12 Leigh [Va.] .550) 484
Byers v. Nashville, C.& St. L. Ry. Co. (Tenn.)
(29 S. W. Rep. 128) 892-
Byerstet v. Winona Mill Co. (Minn.) (51 N. W.
Rep. 619 [189^])... 183-
Byrne v. E. Carroll (La.) (12 So. Rep. 521) 40
V. Sisters of Charity (45 N. J. Law 213
[1888]) 413,417, 426,847
Byron v. Bell (Com. PI.) (10 N. Y. Sup. 693) ... 437
V. Mayor Low (109 N. Y. 291, 54 N. Y.
Super. Ct. 411 [1887], 16 N. E. Rep. 45
[1888]).. 238, 229, 240, 414, 426. 428. 436,
438, 439, 690, f>n
C.
Caanan v. Bryce (3 B. & Aid. 179) 75
Cable v. Foley (45 Minn. 421) 797
Cahih V. Eastman (18 Minn. 324) 643
V. Heuser (Sup.) (37 N. Y. Supp. 736) .... 702
Caird v. Sime (Eng.) (12 App. Cas. 326. 3 Ry.&
Comp. L. J.343[1887]) 816
Caldwell V. Meyers (S. D.) (51 N. W. Rep. 210
[1892]) 690-
Calhoun v Ross (60 111 . App. 309) 892a
Calkins t;. Chandler (36 Mich. 324) Ill
Callahan v. B. & M. R. R. Co. (23 Iowa 562
[1867]) 652,667
Callam v. Saginaw (50 Mich. 7) 4(*
Callan v. Bull (Cal.) (45 Pac. Rep. 1017) 667, 891
Calumet Ry. V. Moore (III.) (15 N. E. Rep. 764
r,QQQ"|\ ggj
Calverly v. WiYliams'(Y Vesey Jr." 210) .'.'.".'.'..'. 9a
Camden I.Wks.v.Fox (34Fed.Rep 200 [1887]) 94,102
Cameron v. Fowler (2 Hill [N. Y .] 306) 64
v. Peck (37 Conn. 556) 59
Camp V. Church Wardens (7 La. Ann. 322). 244, 665
V. Moreman (Ky.) (2 S. W. Rep. 179).. .. 107
V. Pollock (Neb.) (64 N. W. Rep. 231). . 318
Campbell v. Brackenridge (8 Blackf. [Ind.]
471) 555
V. Day (90 111. 363) 371, 553, 554
V. Jinienes (Com. PI.) (23 N. Y. Supp.
333. 27 N. Y. Supp. 351) 126, 801
V. Lunsford (83 Ala. 512, 3 So. Rep.
522 [1888]) 244, 654, 667
V. Portland Sugar Co. (62 Me. 552) . . 643
V. Russell (139 Mass. 278 [1885J. ..832, 883
V. Westou (3 Paige 121 [1832]) . . 432, 491
Campbell Co. v. Youtsey (Ky.) (12 S. W. Rep.
305 [1891]) 219-
Canada Landed Credit Co. v. Thompson (8 A.
R. 696) 837
Canal Co. v. Dubois (15 Wend. 80)
397, 3519. 407. 414. 415, 433, 738
V. Gordon (6 Wall 561 [1867]).686. 687, 69*
V. Penna. Canal Co. (50 N. Y. 266)
344, 406, 408, 428 430
TABLE OF CASES.
xliii
890
801
818
275
Canavan v. Stuyvesant (27 N. Y. Supp. 4ll . . 892a
Cannon's Exrs. v. Cen. Presb. Ch. (Pa. Sup.)
(33 Atl. Rep. 1043) 755
Cannon v. Wildman (-^8 Conn. 472
490, 21Q, S21, 566, 583, 589, 595, 678, 679, 724
Cape May, etc., R. Co. v. Johnson (35 N. J. Eq.
4:i;i) 859a
Ciaperton's Admrs. v. Caperton's Heirs (W.
\a.) (15S. E. Rep. 25T) 124
'Carev v. E. Saginaw (Mich.) (44 N. W. Rep. 168 *
[1890]) ; 139, 183
CaiKaiii V. Everett (Sup.) (16 N. Y. Supp. 688) 689
'Cargill V. Thompson (Minn.) (59 N. W. Rep.
638)
'Caring v. Carr (Mass.) (46 N. E. Rep. 117)
Carliss v. E. W. Walker Co. (C C.) (64 Fed.
Rep. 280)
Carll V. Village of Northport (Sup.) (42 N. Y.
Supp. 576)
Carlson v. Stocking (Wis.) (65 N. W. Rep. 58)
641, 654, 658
Carlyle W. L. & P. Co. v. Carlyle (III.) (29 N. E.
Rep. 556 [1892]) 11,296
^Carmen v. Steubenville, etc., R. Co* (14 Ohio
399) 652, 665
-Carney v. Newberry (24 III. 203) 577
•Carpenter v. Blake (60 Barb. 488 [18711. . .832, 836
t>. Prov. Wast. Ins. Co. (4 How. [U.
S.] 185) 739
t!arr v. Hays (Ind.) (11 N. E. Rep. 25 [1887]).... 216
V. McCarthy (Mich) (38 N. W. Rep. 241
[1888] 103
V. Wallachian Pet. Co. (L. R. 1 C. P. 636),
572, 574
Carrere v. Dun (18 Misc. Rep. 18 [1896]) 810
Carter v. Gordon (Ind.) (23 N. E Pep. 268) 691
V. James (13 M. & W. 713) 469
V. Laudry (3 Pugsley & B. [N. B.] 516
[1880]) 318, 326
Carter White Ld. Co. v. Kinlin (Neb.) (66 N.
W. Rep. 536) 105, 563, 801
Cartwright V. Mt. Vernon (Sup.) (3 N. Y. Supp.
296) . . 701
V. Railroad Co. (Vt.) (9 Atl. Rep.
370 [1887]) 58
Cary v. Chicago (60 111. App. 341) 666
Case V. Fowler (65 Ind. 29) 135
V. United States (11 Ct. of CI. 273) 417
• Casey v. Gun (29 Mo. App. 14, 49) 20, 687
•Cassidy v. Aldhous (27 N. Y. S. 267) 763
V. Fontham (14 N. Y. Supp. 151),
567, 584. 622
Castagnio v. Balletta (Cal.) (21 Pac. Rep. 1097
[1889]) 698, 700
Casterton v. Mclntire (23 N. Y. Supp. 301) 66
Casfner v. Farmers' Mut. F. Ins. Co. (50 Mich.
273) . . 739
Caswell V. Cross (120 Mass. 545) 558, 645
•Catev. Blair (6 Cold w. 639) 76, 87
>Caulkins V. Fry (35 Conn. 170) : 25
Cawpan v. Lafferty (50 Mich. 114) 794
Centenary.M. E. Ch. v. Clime (116 Pa. St. 146,
9 Atl. Rep. 163 [1887]) 123, 216
Cent. Lith. Co. v. Moore (Wis.) 43 N. W. Rep.
1124) 675
Cent. Lunatic Asylum v. Flanagan (80 Va. 116) 439
Central R. Bkg. Co. v. Kent (Ga.) (10 S. E.
Rep. 965) 891
Central R. R. Co. v. Mitchel (63 Ga. 173) 875
Central Trust Co. v. Arctic Ice Co. (Md.) (26
Atl, Rt^p. 49.3) 257
V. Condon (C. C. A.) 67 Fed.
Rep. 84) 601, 689
V. Louisville, etc.. Ry. Co.
(C. C.) (70 Fed. Rep
282) 370
€hadsey v. Guion (97 N. Y.,333 [1884]) 232
-Chamberlain v. Bagley (11 N. H. 234) 320
V. Clayton (.56 Iowa 331) 845
V. Dunlop (126 N. Y. 45, 8 N. Y.
Supp. 125) 8, 891
V. Hihbard (Oreg.) (38 Pac. Rep.
437) 413
V. Kansas City (Mo.) (28 S. W
Rep. 745) 810, 818
Supp.
883,
396,
831,
Chamber of Com. v. SoUitt (43 111. 519)
Chambers v. King (8 Mo. 517). . . 569, 575, 674,
V. Lancaster (Sup.) (38 N. Y. Supp.
253)..
V. Ohio L. J. and T. Co. (1 Dist.
[Ohio] 329)
Chandler v. DeGratt (22 Minn. 471 [1876]).. ..
V. People (111.) 43 N. E. Rep. 590
Chanteau v. Jupiter I. Wks (Mo.) 7 S. W. Reo.
467 [1888]) :
Chapel V. Hickes (2 C. & M. 214)
Chapman v. Deane (34 Mich. 3.5)
V. Kansas City, etc., R. Co. (114 Mo.
542, 21 S. W. Rep. 858) 415,
V. Lowell (4 Cush. .587)
V. Walton (10 Bing. 63)
Charles v. Halleck Lumber Co. (Colo.) (43 Pac.
Rep. 548)
V. Rankin (22 Mo. 566)
Charlestown Ice Co. v. Joyce (C. C. A.) (63 Fed.
Rep. 916) ■
Charlock v. Freel (50 Hun 395 [1888]). .237, 596,
Charlton v. Scoville (Sup.) (22 N. Y. ~
39 N. E. Rep 394)
Chase v. Barrett (4 Paige 148). . . .
V. Heaney (70 ill. 268 [1873])
Chateaugay Ore & Iron Co. v. Blake (12 Supi
Ct. Rep. 731) 611,
Cheeney v. Brookfleld (60 Mo. 53, 17)
Cheney v. Bilby (C. C. A.) (74 Fed. Rep. 52). ..
Chesebrough v. Conover (N. Y. App.) (35 N.
E. Rep. 633, 21 N. Y. S. 566)
Cheslyn v. Dalby (2 Younge & C. 170)
Chestnut H. Tk. Co. v. Piper (Penn. Sup. Ct.,
Jan'y,- 1884)
Chicago V. Dermody (61 111. 431 [1871])
V. Fraser (60 111. App. 404)
V. Hutchinson (15 Fed. Rep. 129). ...
V. Hoyt (13 Sup. Ct. Rep. 779)
v. Jouey (60111. ;^83 [187)])
V. Robhins (2 Blackf. 4:.^8, 4 Wall [U.
S.] 657)
V. Sexton (107 111. 323, 115 111. 230
[1885]) 219,691,
V. Sheldon (7 Wall. 50)
V. Stratton (58 III. App. 539)
V. Tillev (103 U. S. 146)
Chicago, B. &. Q. R. Co. v. Bell (Neb.) (62 N.
W. Rep. 314)
Chicago City Rv. Co. v. Dinsmore (111: Sup.)
(44 N. E. Rep. "887.)
Chicago General Ry. Co. v. Chicago City Ry.
Co. (62 111. App. .505) 38,
Chicago & Gt. E. Ry. Co. v. Vosburgh (45 111.
311 [1867]) ■ ... 275, 385, 559, 566, 572.
Chicago, etc., Ry. Co. v. Chambers (C. C. A.)
(68 Fed. Rep, 148)
Chicago, etc., R. Co. v. Cochran (Neb.) (60 N.
W. Rep. 891)
Chicago, etc., R. Co. v, Thomlinson (33111. App.
388)
Chicago, M. & St. P. Ry. Co. v. Stewart (19
Fed. Rep. 9 [1883]) 34.5.
Chicago, M. & St. P. Ry. Co. v. Wabash, St
L. & P. Ry. Co. (C. C. A.) (61 Fed. Rep. 993)
Chicago R. J. & P. R. R. Co. v. Mofflt (75 111.
524)
Chicago S. F. & C. R. Co. v. Price (138 U. S.
185 [1891]) 429. 482, .502, .505,
Chicago G. L. Co. v. People's G. L. Co. (111.)
(13 N. E. Rep. 169 [1887])
Chickeiing v. Robin von (3 Cush. .548)
Childress v. Smith (Tex. Civ. App.) (37 S. W.
Rep. 1070) 397.
Chippewa, etc., Ry. v. Chicago, etc., Ry. (44
N. W. Rep. 17).
Chisholm v. Bankers Life Assur. Co. (Mich.)
(70 N. W. Rep. 415 [1897]) ....
Chism V. Schipper (51 N. J. Law 1 [1888]).
421, 426. 428, 438,
Christian v. Dunn (Com. PI.) (8 Kulp. .320)
Christian Co. v. Overholt (18111. 223). .686, 687,
Christie Mfg. Co. v. Travers Bros. Co., 35 N.
Y. Supp. 1079
Chu Pawn v. Irwin (Sup.) (34 N. Y. Supp. 724)
738
691
16
667
2n
135
564
703
687
428
428
829
702
643
468
638
739
678
836
883
35
315
73
851
880
665
38
705
669
665
641
748
.580
507
813
86
643
266
580
879
682
680
351
82
549
82
845
567
81
809
847
177
694
703
794
xiiv
TABLE OF CASES.
Church V. Proctor (C. C. A.) (66 Fed. Rep. 240)
Cincinnati v. Cincinnati (11 Ohio Cir, Ct. Rep.
309)
V. Stone (5 Ohio St. 38) 654,
Cincinnati, etc., Ry. Co. v. Lutes (Iiid.) (11 N.
E. Rep. 784 L18»7], 14 N. E. Rep. 706 [1888J),
695,
City Bank v. Kusworm (Wis.) (59 N. W. Rep.
564) ...
Clapp V. Thayer (112 Mass. 896 [1873])
Clark V. Busse {82 111. 515)
V. Collier (Cal.) (34 Pac. Rep. 677)... 676,
V. Dififenderfer (31 Mo. App. 232)
V. Fernoline Chem. Co. (5 N. Y. Supp.
190)
V. Fj-anklin (7 Leigh [Va.] 1)....676, 677,
V. Fry (8 Ohio St. 358) 641. 652,
V. Huey (Ind. App.) (40 N. E. Rep. 152). .
V. Mayor of New York (4 N. Y. 338
L1850]) 572, 577, 583, 690,
V. Marsiglia (1 Denio [N. Y.] 317)
t?. Nat. Ben. & Cas. Co. (C. C.) (67 Fed.
Rep. 222)
45
656
696
88
702
676
677
445
819
682
654
762
691
439
V. Scanlan (36 111. App. 48 [1888]).
V. Smith (14 Johns [N. Y.] 324)
V. United States (6 Wall. 543 [18671)
3b2, 595,
V. Vermont & C. R. (88 Vt. 103)
V. Watson (18 C. B. [N. S.l 278 [1865])
366, 413, 415, 423, 427, 440,
V. Woodruff (83 N. Y. 518 [1881])
Clark County v. Kerstan (Ark.) (30 S. tV. Rep.
1040)
Clarke v. Glasgow Assn. Co. (1 M'Queen 668). .
V. Pope (70 111. 128 [1873]),
- 240, 242, 413, 417, 564,
V. Williams (29 Neb. 691)
Clarkson v. Stevens (106 U. S. 505 [1882])
Classen v. Davidson (5r III. App. 106)
V. Elraendorf (Tex.) (37 S. W. Rep.
245)
Clavcombv. Butler (36 III. 100 [1864])
Cl.iyton et al. v. McConnell (14 Ont. Rep. 608
[1887], 15 Ont. App. 560 [1888])
Clavton v. Newton Acadetny (95 N. Car. 298)..
Clay V. Yates (1 H. & N. 73)
Cit-ary v. Sohier (120 Mass. 210 [1876]),
426, 438, 674,
CUbiML W. L & L. Co. V. City of Cleburne
(Te.x.) ^5 S. W. Rep. 733)
Clegg V. Fields (7 Jones' Law [N. C] 37) ... .
V. Metropolitan Ry. Co. (Sup.) (37 N. Y.
Supp. 130)
rieland v. Hedlev (5 R. I. 163)
Clement v. Durgfn (5 Greel. [Me.] 14)
V. Foster (69 Me. 318 [1 879]) 434,
V. Schuvkill River E. S. R. Co. (19
Atl.'Rep. 274 and 276)
Clements v. Marston (52 N. H. 31 [1873])
Clendennen v. Paulset (3 Mo. 230)
Cleveland, C. C. & St. L. Ry. Co. v. Monaghan
(Ills.) (30 N. E. Rep. 869 [1892])
Clifford V. T,eroux (Tex.) (37 S. W. Rep. 172). .
V. I ichardson (18 Vt. 620)
V. Watts (L. R. 5 C. P. 586)
Clinton Co. v. Hill (122 Ind. 215)
Clinton v. Walliker (Iowa) (68 N. W. Rep. 431),
47,
Close V. Clark (Com. PI.) (9 N. Y. Supp. 538),
325,
Coal Co. tJ. O'Hern (8 Md. 197)
«. Salt Co. (58 N. Y. 667)
Coburn V.Webb (56 Ind. 96)
Coclieco Bank v. Berry (52 Me. 293) ...
Cochran v. Hyde Park (111.) (27 N. E. Rep. 939
11891])
Cock. an v. Peoples Ry. Co. (Mo.) (21 S. W.
Rnp. 6; 33 S. "W. Rep. 177) 318,
Copy V. Lehman (79 III. 173 [1875]),
89. 214, 215, 219, 222, 413, 428,
Coffin V. Reynolds (37 New York 640)
Cogsrins V. Bui winkle (1 E. D. Smith 434
[1H52])
Cohen v. Jockoboice (Mich.) (59 N. W. Rep.
665)
691
567
722
656
847
232
896
706
794
370
272
428
678
491
688
49
101
676
17
891
892
428
107
483
585
70
575
880
704
738
669
380
142
564
670
487
235
218
154
321
796
863
696
128
Cohenv. Piatt (69 N. Y. 348) 674
V. Stene (Wis.) (21 N. W. Rep. 514) 99
Cohn V. Plummer (Wis.) (60 N. W. Rep. lOOO),
703, 797
Coker v. Young (2 Fost. & Fin. 98 [I860]),
372 589 595
Colburn v. Westcott (36 111. App. 347) . . . ~'. . . . .' 702
Colcock & Co. V. L., C. & C. R. Co. (1 Strob.
[S. C.]329) 563
Colcord V. Alexander (67 111. 584) 890
Cole V. Fall Brook C. Co. (Sup.) (34 N. J. Supp.
572) 887
V. People (111. Sup.) (43 N. E. Rep. 607) 157, 334
V. Shoen (Super. Ct.) (38 W. N. C. 382). . . 162
■w. Williams (12 Neb. 440) 794
Cole Mfg. Co. V. Collier (91 Tenn. 525, 19 S. W.
Rep. 672) 412,415
Colegrove v. Smith (Cal.) (33 Pac. Rep. 115). . . 646
Coleman v. Bank of Elinira (53 N. Y. 388
[1873]) 128
V. Chad wick (80 Pa. St. 81 [1875]). . . 615
V. Man. Imp. Co. (94 N. Y. 229) 12a
V. Rung (31 N. Y. Supp. 456 122
Collensworth v. New Whatcom (Wash.) (47
Pac. Rep. 439) 654
Collier v. Betterson (Tex.) (29 S. W. Rep. 467).
318 3''6-
Collins V. Money (4 Miss. 11) 256! 277
V. Philadelphia (93 Pa. St. 272) 247
v. Vanderbilt (8 Bosw. [N. Y.] 813
[1861]) 495
Collmeyer v. Mayor (83 N. Y. 116) 184
Colorado Paving Co. v. Murphy (C. C. A.) (78
Fed. Rep. 88) .. 178
Colly er v. Collins (17 Abb. Pr. 467) 566, 61 »
v. Isaacs (L. R. 19 Ch. D. 348) 273
Colton V. Onderdonk (22 Reptr. 106 [Cal.]
[1886]) 643
Columbia Wire Co. v. Freeman W^ire Co. (C.
C.) (71 Fed. Rep. 302) 90
Combe v. Schulters (N. Y. Com. Pleas, Dec.
1871) 428
V. Greene (2 Dowl. [N. S.] 1023) 421
Combes Case (9 Co. R. 7.5) 503
Comer v. Comer (111.) (11 N. E. Rep. 848 [1887]) 123
Commissioners v. Boyle (9 Itid. 296, and note,
68 Am. Dec. 293) I4l
V. Commissioners (55 Irish R.
[C. L.] 55-66) 54»
V. Fetch (10 Ex. 611) 183,188
V. Mighels (7 Ohio St. 109) . ... 852
V. Motherwell (123 Ind. 364). 371, 553
V. People (5 Neb. 127) 46
V. Ross (3 Binney [Pa.] 520).. 20
V. Templeton (51 Ind. 266) 177
V. Water Commissioners (5
Irish Rpts. C. L.55 [1871]). 549
Commonwealth v. Burke (114 Mass. 261) 877
V. Clarkson (3 Pa. St. 281
[1846]) 445-
V. Dallinger (118 Mass. 439) ... 5
V. De Camp (Pa. Sup.) (35 Atl.
Rep. 601) 148
V. Desilver, 3 Philadelphia 31
[1858]) 821,822
V.Desmond (103 Mass. 445).. 892a
V. Funk (9 Pa. Co. Ct. Rep.
227) .. 59
V. Hurd (Pa.) (35 Atl. Rep. 682),
148. 555
V. Isenberg (Quart. Sess.) (4
Pa. Dist. Rep. 597) .... 144
V. Julius (Pa.) (34 Atl. Rep.
21) 794, 795
V. Mitchell (82 Pa. St. 343\
172, 173, 176
V. Pejepscut Props. (7 Mass.
399) 524
V. Philadelphia (Pa. Sup.) (35
Atl. Rep. 19.5).... 176, 44.5, .514
V. Sturtivant (117 Mass. 122).. 895
V. Webster (5 Cush, 293) 892
Comm. Bank v. Norton (1 Hill 505). 503 .
Commonwealth Title Ins. Co. v. Ellis (Com.
PI.) (5 Pa. Dist. Rep. 33) 400, 762^
TABLE OF CASES.
xlv
Compau V. Detroit (Mich.) (64 N. W. Rep. 336) 158
Conant v. Van Schaick (-^4 Barb. 87 [1857]) 862, 863
CoudoD V. Barr (N. J.) (6 Atl. Rep. 614 fl886J). 64
V. Jersey City (43 N. J. Law 452),
545. 564 587
V. South Side R. Co. (14 Gratt. [Va.j
302 [1858]) 387,412, 415
Conger v. N. Y., etc., R. Co. (45 Hun [N. Y.]
296) 706
Conlin v. San Francisco (Cal.) (46 Pac. Rep. 279) 142
Coni) V. State (125 Ind. 514) 20
Conueli V. Averill (Sup.) (40 N.Y. Supp. 855)... 616
V. Canadian Pac. R. W. Co. (16 Ont.
Rep. 639) 511
Conner v. Canier (Ind. App.) (44 N. E. Rep.
656) 73
V. Drake (1 Ohio St. 166) 351
Connersville v. Merrill (Ind. App.) (42 N. E.
Rep. 1112) 135, 153
Connett v. Chicago (114 111. 233) 522
Connolly v. Board (N.J.) (30 Atl. Rep. 548) (150, 171
V. San Francisco (Cal.) (33 Pac. Rep.
1109) 44
Connor U.Simpson (Pa.) (7 Atl.Rep. 161 [1887]). 506
Connors v. Hennesey (112 Mass. 96 [1873]),
643, 652, 654, 662, 663
Conqueror (The) (17 Sup. Ct. Rep. 510) 889
Conrad v. Ins. Co. (4 Allen 120) 428
V. Trustees (16 N. Y. 158 [1857]) 888
Consaiil V. Sheldon (35 Neb. 247, 52 N.W. Rep.
1104 [1892]) 20, 21, 235, 341, 461, 468, 704
Consequa v. Williams (1 Peters C. C. 230
[1816]) 619
Continental Wind Mill Co. v. Empire Wind
Mill Co. (8 Blachf . [U. S.] 295) 823
Cook, III re., v. Gleasun (3 Chic. Leg. News 410),
703, 704
Cook V. Allen (67 N. Y. 578) 216, 218, 219
V. Giay (133 Mass. 106) 575
V. McCabe (53 Wis. 250 [1881]) 675, 676
V. Mui-phy (70 111. 96 [1873]).
131, 561. 563, 564, 572
V. Murphy (Pa.) (24 Atl. Rep. 630) 762
V. Williams (Pa. Sup.) (24 Atl. Rep. 746),
762, 764
Cook County v. Harms (108 111. 151 [1883]),
398 577 595
Cooke V. Cooke (L. R. 4 Eq. 77) '.....' 415
V. Odd Fellows (1 N. Y. Supp. 498
[1888]) 20, 325, 326. 576, 596
Coon V. Allen (Mass.) (80 N. E. Rep. 83 [1892]). 445
V. Citizens' Water Co. (152 Pa. St. 644; 23
Atl. Rep. 505) 417, 441, 467, 468
Cooper V. Jarman (L. R. 3 Fq. 98). 10
V. Kane (19 Wend. (N. Y.) 386),
562., 602, 624
V. Langdon (9 M. & W. 60),
370. 372, 379, 552. 553
V. McCrimmin (33 Tex. 383-7) 49
V. Seattle (Wash.) (47 Pac. Rep.. 887. . 665
V. St. Paul City Ry. Co. (Minn.) (56 N.
W. Rpp. 42) 880
V United States, (8 Ct. of CI 199) . 567
V. Uttoxeter Bur. Bd. (11 L. T. [N. S.]
565) 413, 430. 468, 482
Coos Bay, etc., Nav. Co. v. Nosier (Oreg.) (48
Pac. Rep. 361) 704
Copyright (7 Opinion Att'y Gen'l 656) .821
Coquillard v. Hovey (Neb.), (37 N. W. Rep.
479) 619
Corbin v. American Mills (27 Conn. 274). . .243, 655
Corcoran v. Chess (Pa.) (18 Atl. Rep. 876
[1890]) 621
Corey v. Eastman (Mass.) (44 N. E. Rep. 217).. 516
Cornish v. Suydam (Ala.) (13 So. Rep. 118) 325, 726
Corporation v. Roonev (7 L. R. Jr. 191) 707
Cornwell v. Cornwell (91 111. 414 [1879]) 890
Corrigan v. Detsch (61 Mo. 290 [1875]) 67
Corsicaiia v. Kerr (Tex.) (35 S. W. Rep. 794. ... 135
Cort V. Ambergate R. Co. (L. R. 17 Q. B. 127).. 439
Cothran v. Knox (13 S. C. 496) 428
Cothrel v. Talmadge (9 N. Y. 577) 318
Cotter V. Casteel (Tex. Civ. App.) (37 S. W.
Rep. 791) 168
V. Lindgren (Cal.) (39 Pac. Rep. 950). . . 657
IS
Coudran v. New Orleans (La.) (9 So. Rep. 31) 691
Coulter V. Bd. of Ed. (63 N. Y. 36.t [1875]) ■;fii
County of Christian v. Overholt (is 111. 2;.'3. 687 tj94
County of Cook v. Harms (108 III. 151 [1883]).
898, 5<7. 59&
County of Fayette v. Laing (127 Pa. St. liy
[1889]) ^.' 438,439
Coursin's Appeal (79 Pa. St. 220 [1876] t>7a
Coutee V. Dawson (:<5 Bland. 264) 319
Covington, etc., R. Co. v. Bowler (9 Bush. 468). 42
Cox V. McLaughlin (54 Cal. 605 and 76 Cal
60, 18 Pac. Rep. 100 [1888]). ... 514, 687, 691
V. Western Pac. R. Co. (44 Cal. 18) 674
Cozzensr. Higgins(3Keyes206) 880
Craig V. Geddis (Wash.) (.30 Pac. Rep. 396).. . , 439
Crampton v. Varna R, Co. (L. K. 7 Ch. 56«) ... 44
Crane v. Kiml.el (61 N. Y. 645 [1875]) 69»
V. Pier (43 N. J. Eq. 553) ... 721
Crans v. Kans. Pac. R. Co. (131 U. S..clxviii
[1879]) 8
Cranworth in Scott v. Avery (5 H. L. C. 811).. 40»
Crawford v. Becker (13 Hun 375 [1878])... 326, 731
V. Mail and Express Pub. Co. (Sup.)
(41 N. Y. Supp. 325) , .804
V. McKinney (Pa.) (30 Atl.Rep. 1047). 674
r. Orr(84N.C. 246) 52»
V. Wolf (29 Iowa 567 [1870]),
13, 439, 440, 891
Cree v. Bristol (33 N. Y. Supp. 19) 40O
Cremer v. Higginson (1 Mason C. C. R.323, 368) 169
Crenshaw v. Ullman (Mo. Sup.) (20 S. W. Rep.
1077) 641a, 667
Cresswell I. Wks. v. O'Brien (Pa.) (27 Atl. Rep.
131) 768
Cristal v. Cochran (Pa.) (23 Atl. Rep. 444) 600
Crocker f. United States (21 Ct. of CI. 255).... 535
Crockett v. Chattahoochee B. Co. (Ga.) (21 S.
E.Rep.42) 558
Cronin v. Tebo (N. Y.) (39 N. E. Rep. 344; s. c,
24 N. Y. Supp. 644) 275
Crocker v. Hutchinson (1 Vt. 73) 827
Crookshank v. Mallory (2 G. Gr. [la.] 2570 700
Crossly V. Maycock (L. R. 18 Eq. IbO) 183
Crouch V. Gutman (134 N. Y. 45 offirming 10
N. Y. Supp. 27.5) 698, 702
Crow V. Becker (5 Robt. [N. Y.] 262) ]22
V. Carter (Ind. App.) (34 N. E. Rep. 927). 795
Crown Coal & Tow Co. v. Yoch Coal Min. Co.
. (57 111. App. 666) 580
Crumlish v. Wilmington & W. R. Co. (5 Del.
Ch. 270 [1879]) 318, 345. 428, 429, 432, 482
Cuckson V. Stones (28 L. J. Q. B. 2.5) 805
Cuff V. N. & N.Y. R. Co. (35 N. J. L. 17 [1869]),
641, 644, 645, 652, 654, 666, 667
Culbertson v. Ellis (6 McLean [U. S.] 248).. 720, 723
V. Fulton (111.) (18 N. E. Rep. 781).. 44
CuUen V. Sears (112 Mass, 299) 700,701
Cullis V. Bothhamley (7 W. R. 87) 105
Cullum V. Lickdale Iron Co. (Com. PI.) (5 Pa.
Dist. R.622) 862
Culver V. Avery (7 W^end. [N. Y.] 380) 856
Cumberland & Pa. R. R. Co. v. Slack (45 Md.
161 [1876]) 808
Cummings v. Bradford (Ky.) (22 S. W. Rep. 548
[1893]) 430, 445
V. Pence (I Ind. App. 317, 27 N. E.
Rep. 631 [1891]) 325, 724, 726
V. Seymour (79 Ind. 491) 138, 171
Cunningham v. Foublanque (6 C. & P. 49) 804
V. Fourth B. C. (Pa.) (28 Atl. Rep.
490) 547, 557
V. Illinois Cent. R. Co. (77 III. 178
[187.5]) 727
V. International R. Co. (51 Texas
.503 [1879]) 660
V. Massena vSp. & Ft. C. R. Co.
(Sup.) (63 Hun [N. Y.l 439, 18
N. Y. Supp. 600 [1892]),
43, 76, 124, 557, 686, 877
Curnan v. Delaware & O. R. Co. (17 N. Y.
Supp. -714 [N. Y. App.] (34 N. E. Rep. 201)
319, 683, 684, 687, 739
Curran v. Cliflford (Colo. App.) (40 Pac. Rep. 477) 14
Current v. Fulton (Ind. App.) (38 N. E. Rep.
419) ..682, 688
xlvi
TABLE OF CASES.
Currie v. Misa (L. R. 10 Ex. 162) 61
(Currier v. Boston &, M. R. Co. (31 N. H. 209
[1855]; 34 N. H..498 [1857]),
600. 623, 627, 678, 679, 693, 878, 883, 885
'Curtis V. Hoyt (19 Conn. 165) 701
•Curtiss V. Waterloo (38 Iowa 266 [1874]) ... .... 122
•Curwen v. Quill (Mass.) (43 N. E. Rep. 203) ... . 239
•Custeaii V. St. Louis Land Co. (60 N. W. Rep.
425) 129
€utcliff V. McAnally (88 Ala. 507, 7 So. Rep.
331 [1890]) 675,677
Cuthbertson v. Parsons (12 C. B. 304) 666
Cutter V. Dix (Vt.) (31 Atl. Rep. 780) 702
V. Powell (6 T. R. 320, 2 Sm. Leading
Cas. [H. & W. notes] 44) 691, 697
D.
Dabs V. Nugent (13 L. T. N. S. 396) 428
Daeglingv. Gilmore (49111. 248 [1868]) 240, 243
V. Schwartz (80 III 320 [1885]). 240, 571, 575
Dagger! v. Johnson (49 Vt. 345) 340
Dalamaler v. Folz (.50 Hun 528 [1888]) 602
Dale V. See (51 N. J. Law 378 [lf*89]) 256
Dallas, City of, v. Brown (Tex.) (31 S. W. Rep.
298) 372
V. Cooper (Tex. Civ. App.) 34
S. W. Rep. 321) 643
Dallas V. Ellison (Tex.) (30 S. W. Rep. 1128).. . . 138
V. L<ionie (Tex.) (18 S. W, Rep. 726
[1892]) 766
Dallman v. Kint; (4 Bing. [N. C] 105) .. 340, 430
Dalrymple v. Whitiiigliaiii (26 Vt. 345 [1854]).. 522
Daly V. San Francisco (13 .^'ac. Rt'p. 321) 35
Damon v. Granby (2 Pick. [Mass.] 345),
38, 326, 555, 556
Dana v. Henry (30 Vt. 616 [1858]) 130
Dane v. Cochrane Chem. Co. (Mass.) (41 N. E.
Rep. t)78) . 655
V. State (Tex.) (35 S. W, Rep. 661) 891
Danforth v. Tennessee & C. R. Co. (Ala.) (11
So. Rep. 60) 294, 690
V. Walker (37 Vt 239) 682
Dannerberg v. Ashley (10 Oliio Cir. Ct. R. 558) 604
Danville Bdge. Co. v Pomeroj^. etc., (15 Pa. St.
151 [1850]) 317, 324, 341, 442. 514. 698, 699, 819a
Darling v. Thompson (Mich.) (65 N. W. Rep.
754) 886
Darma v. Horicin I. M. Co. (22 Wis. 691). ..224, 530
Darneli v. Keller (Ind. App.) (45 N. E. Rep. 676) 428
Darwin v. Westbrook (86 Hun [N. Y.] 363) 429
D'Audre v. Zimmerman (Sup.) (39 N. Y. Supp.
1086) : 702
Davenport v. Hulme (Super.) (32 N. Y, Supp.
803) 42, 85, 804
V. Kleinschmidt (Mont.) (l3 Pac.
Rep. 249 [1887]) 81,139,161
Daveny v. Shattuck (9 Daly [N. Y.] 66) 801
David V. Ryan (47 Iowa 642) 678
Davidson v. Crosby (Neb.) (68 N. W. Rep. 338). 794
V. Jersey Co. Ass'n (71 N. Y. 333)... . 687
V. Provost (35 111. App. 126) 428, 505
V. Seymour (1 Bosw. [N. Y.] 88) .. . 73
V. State (Ind. Sup.) (34 N. E. Rep.
972) 887
Davison V. Gill (1 East 64-71) 51
Davies v. New York (83 N. Y. 207) 164
V. E. Saginaw (Mich.) (32 N. W. Rep.
919 [1887]) 76
V. Swansea (8 Exch. 808) 720
Davis V. Badders (Ala.) (10 So. Rep. 422),
442, 565, 701
V. Barger (.57 Ind .54) .59
V. Barrington (30 N. H. 517, 529) 699
V. Bonn (Sup.) (37 N. Y. Supp. 688) 682
V. Bronson (N. D.) (50 N. W. Rep. 836).
682, 685
V. Campbell (la.) (61 N. W. Rep. 1053). . 49
t?. The Citv (3 Phila. 374 [1859] .33, 35
V. Crookston W. W. P. Co, (Minn.) (59
N. W. Rep. 482 [1894]) 326
V. Des Moines (la.) (32 N. W. Rep. 470
[18^57]) 47
V. Detroit & Mil. R. Co. (20 Mich. 105
[1870]) 849a
Davis V. Fish (1 G. Gr. [Iowa] 406) 699
V. Ford (Md.) (32 Atl. Rep. 280) 558, 704
V. Gallupe, 111 Mass. 121 [1872]). .. 616, 627
V. Hendrix (1 Mo. App. Rep. 41) 49
V. Johnson (49 Mo. App. 240) 49
V. Mason (4 Pick. 156) 891
V. McMillan (Ind. App.) (41 N. E. Rep.
851) 49
V. Mills (Mass.) (40 N. E. Rep. 852) 881
V. Old Colony R. Co. (7 Amer. Corp. Cas.
549) 43
V. Ravenna C. Co. (Neb.) (67 N. W. Rep.
. 436) 49
v. Robertson (1 Mill. 71) . 100
V. Rowell (2 Pick. 64) 100
V. Saginaw (87 Mich. 439) 600
V. School District (24 Me. 349) .53, 557
V. Shafer (Cir. Ct.) (50 Fed. Rep. 764). .48, 124
V. Smith (15 Mo. 467) 669
V. United States (17 S. Ct. Rep. 360) 883
Davis, etc., Mfg. Co. v. Jones (C. C. A.) (66
Fed. Rep. 124) 49
Davis Co. V. McKinney (Ind. App.) (38 N. E.
Rep. 1093) 49
Davis & Rankin Bldg. & Mfg. Co. v. Vice
(Ind. App.) (43 N. E. Rep. 889) 768
Dawson v. Fitzgerald (L. R. 1 Exr. Div. 257). . . 415
v. Kittle (4 Hill 107) 619
Day V. Green (4 Cush. [Mass.] 433) 507
Dayton v. Pease (4 Ohio St. SO [1854]) 248
Dean v. Charlton (23 Wis. 590) 163, 164
V. Borchsenius (30 Wis. 236) . 163
De Baker v. Southern Cal. Ry. Co. (Cal.) (39
Pac. Rep. 610) 243,246.892a
De Boom v. Priestly (1 Cal. 206) 238, 572, 574
De Briar v. Minturn (1 Cal. 450) 800, 801
DeBuscshe v. Alt. L. R. (8 Cli. D. 286 [1877-8]). 515
Decatur V. VermiUion (77 III. 315 [1875]) 66
De Cernea v. Cornell (20 N. Y. Supp; 895, 22 N.
Y.Supp.941) 611,618
Dechert v. Munic. Elec. Lt. Co. (Sup.) (41 N. Y.
Supp. 692) 216
Deckman v. Oak Harbor (10 Ohio Cir. Ct. Rep.
409) .176
Dedrichs v. Salt Lake C. R. Co. (Utah) (46 Pac.
Rep. 6.56) .880
Deering v. Thorn (Minn.) (13 Rep. 757 [188-2]). .30, 31
Deevesv. New York (Super Ct.) (17N. Y. Supp.
460) 326, 689
Deford v. Deford (Ind.) (19 N. E. Rep. 530
[1889]) 490
Degnan v. Ransom (Snp.) (31 N. Y. Supp. 966). 832
DeGraflf V. & Co. v. Wickham (la.) (52 N. W.
Rep. 503, s. c. 57 N. W. Rep. 420) 319
Deig V. Morehead (Ind.) (11 N. E. Rep. 458
[1887]) 887
De Kay r. Bliss (42 Hun 659). . 221
Delafield v. Illinois (26 Wend. [N. Y.] 192) 5.57
V. Westfield (77 Hun [N. Y.] 124) . 589
Delamater u. Folz (3 N. Y. Supp. 711 [1889]). 395, 412
De Lambre v. Williams (36 La. Ann. .330) 701
D. & H. C. Co., In re (8 N. Y. Supp. 3.^2) 147
D. & H. Canal Co. v. Dubois (15 Wend. 87
[1835])..397, 399, 407,
414. 415. 433, 737
V. Pa. Coal Co. (50 N. Y.
250 [1872]).
314, 406. 408. 428, 486
Delaware, L. & W. R. Co. v. Bowns (36 N. Y.
Super Ct. 126 [1873]) 326,400
Dellinger v. Gillespie (N. C.) (24 S. E. Rep. 538). 794
Deloache v. Smith (Ga.) (10 S. E. Rep. 436),
129, 686. 689
Demarest v. Haide (52 N. Y. Super. Ct. 398
[188.5]) 219. 442, 565, 584
De Mattos v. Jordan (Wash.) (46 Pac. Rep. 402),
20, 319, 687
Dement, Ex parte (.53 Ala. 389) 896
Dement V. Rokker (111.) (19 N. E. Rep. 33 [1889]). 141
Dempsey v. Dobson (Pa. Sup.) (34 Atl. Rep.
459) 818, 819
Denmead v. Coburn (15 Md. 29 [I860]) 678
Denniston v. Clark (125 Mass. 216) .266
Denton r. City of Atkinson (34 Kan. 438 [1885]).
97, 702
TABLE OF CASES.
xlvii
Denver Construction Co. v. Stout (8 Colo. 61)
[1884] :i48, 428
Denver, City of, v. Dunsmore (7 Colo. 328 [1884]) 883
Denver v. Rhodes (Colo.) (13 Pac. Rep. 729
[1887]) 644
Denver & R. G. Ry. Co. v. Neis (Colo.) (14 Pac.
Rep. 1U5 [1887])... 552
V. Wilson (Colo. App.)
(:i6 Pac. Rep. 67).. 877
Denver. S. P. & P. Ry. Co. v. Riley (7 Colo. 494
[1884]) 266,391,396,399,400
Denver, T. & Ft. W. Ry. Co. v. Pulaski I. D.
Co. (Colo.) (35 Pac. Rep. 910) 888
De Peyster v. Pulver (3 Barb. [N. Y.] 284) .... 727
Derby v. Johnson (21 Vt. 17) 326, 439, 682
Deriiiotc V. J.jues (69 U. S. [2 Wall.] 1 [1865],
s. c. 4 Amer. Law. Reg. [N. S.] 504).. 240, 674, 678
Des Moines v. Des Moines W. W. Co. (la.) (64
N. W. Rep. 269) 524
Destrehan v. Louisiana Cypress L. Co. (La.) (13
So. Rep. 230) 625
Detroit v. Beekman (34 Mich. 125 [1876]) 247
V. Hosmer (Mich.) (44 N. W. Rep. 622
[1890]) 146, 154
V. Robinson (38 Mich. 108) 164
Detroit F. P. Co. v. Auditors (47 Mich. 135) .... 176
Detroit, Common Council of, v. Public Comm.
of Detroit (Mich.) (59 N. W. Rep. 654) 138
Detwiller v. Mayor (46 How. Pr. [N. Y.] 218)... 164
Deury v. Ewing (1 Bond [U. S.] 40) 818
Dewey v. Alpena School Dist. (43 Mich. 480).. . 678
Devine v. McMillan (61 111. App. 571) 17
Devlin v. Mayor et al. (63 N. Y. 8 [1875]) 14
V. New York (4 Duer 337) 679
V. New York (41 Hun N. Y. 281 [Com.
PI.], 23 N. Y. Supp. 888). ...42, 148, 805
V. N. Y. & E. Ry. Co. (20 N. Y. 463) . . 439
V. Second Ave. R. Co. (44 Barb. [N. Y.]
81 [186.5]) 304,438,439
V. Smith (89 N. Y. 477 [1882]) 644
Dexter v. Norton (47 N. Y. 62) 676
Dey V. Jersey City (19 N. J. Eq. 412) 555
Deyoe v. Woodworth (N. Y. App.) (39 N. E.
Rep. 375, 24 N. Y. S. 373 afflrmed) 73
Dhrew v. City of Altoona (121 Pa. 401 (1888); 15
Atl. Rep. 636) 35. 44, 2-37, 239, 370. 38.5, 386,
387, 439, 467, 479, 490. 569, 679
Diamond Match Co. v. New Haven (Conn.) (13
Atl. Rep. 409 [1888]). . 246
V. Roeber (N. Y.) (13 N. E.
Rep. 419).. 224
Diamond State Iron Co. v. San Antonio, etc.
Ry. Co. (Tex.) (33 S. W. Rep. 987) 682
Dibal V. Minott (9 Iowa 403) ... 674
Dibble v. New Haven (Conn.) (.56 Conn. 199). .. 177
Dick V. Ireland (130 Pa. St. 299 [1889]) 232
Dickerman v. Ashton (21 Minn. 538 [187.5]) .... 32
Dickinson v. Callahan (19 Pa. St. 227) 10
V. Commrs. of City of Poughkeep-
sie (2 Hun 615 [1874], 14 N. Y.
Super. Ct. 1, 75 N. Y. 65 [1878]),
51, 54, 138, 139, 14-3, 1.57, 175,
.397, 610, 623. 679, 892
V. Gray (Ky.) (8 S. W. Rep. 876) ... 273
V. Prince (61 111. App. 33.5) 569
V. The People, etc. (17 111. 191) 859
V. Railroad (7 W. Va. 390) . . . .417, 428
Dietert v. Friday (Tex.) (22 S. W. Rep. 291) 318
Dill V. Lawrence (Ind.) (10 N. E. Rep. 57-3) ... 317
Dillion V. Howe (Mich.) (57 N. W. Rep. 102) ... 878
Dillon V. City of Syracuse (9 N. Y. 98). 870, 554, .595
Dills V. State (59 Ind. 1.5) 896
Dinffley v. Green (54 Cal. .333) 428
Dinsmbre v. Livingston (60 Mo. 241) 397
Diplock V. Blackburn (3 Campbell 43 [1811]). . . 616
Dirimple v. State Bank (Wis.) (65 N. W. Rep.
.501) 16
Dist. of Columbia v. Gallagher (124 U. S. 505
[1888]) 227,5.53,-580
Dixon V. Gravely (N. C.) (23 S. E. Rep. .39) . .700
Doane College v. Lanhan (26 Neb. 421, 42 N. W.
Rep. 405 [1889]) 128,216,389
Doane v. Dunham (79 111. 131 [1875]) 612
Dobson V. Coliis (1 H. & N. 81) 105
V. Hudson (1 C. B. [N. S.] 659) 414, 566
Dobson V. More (62 111. App. 435) 38
Dockery v. Randolph (Tex.) (30 S. W. Rep.
270) i^24
Dodge. Ex parte (7 Cow. 147) 310
Dodge V. Hedden (42 Fed. Rep. 446 [1890]) 627
V. McDonnell (14 Wis. 553) 371, 373, 379
V. Morrow (Ind. App.) (43 N. E. Rep.
153) 878
Doherty v. Doherty (Mass.) (19 N. E. Rep. 352
[1889]) 530
Dolan V. Mayor of N. Y. (4 Abb. Pr. N. S. [N.
Y.] 397) 163
Dollt;.Crume(Neb.)(59N. W. Rep.806). 19,20, 765
V. Noble (N. Y.) (22 N. E. Rep. 406 [1889],
s. c. 18 Abb. N. Cas. 45) 34U, 439
Donald v. Chicago, B. & Q. Ry. Co. (Iowa) (61
N. W. Rep. 971) 86
Donaldson v. Detroit Museum of Art (Mich.)
(40 N. W. Rep. 33 [1888]) 812
V. Williams (1 Cr. & M.345). 800
Donlin v. Daegling (80 III. 008 [1875]),
123, 216, 564, 584
Donnelly v. Adams (Cal.) (46 Pac. Rep. 916),
216, 219
Donalds v. The State (89 N. Y. 36 [1882]), s. c.
84N. Y. 361) 46, 577
Donovan v. Richmond (Mich.) (28 N. W. Rep.
516) 103
V. Sheridan (Super. N. Y.) (24 N. Y.
S. 116) 121
Dorn V. Mengedoht (Neb.) (59 N. W. Rep. 800). 704
Dorsey v. McGee (30 Neb. 657; 46 N. W. Rep.
1018 [1090]) 21, .566, 577, 583
Dorwin v. Westbrook (11 Hun [N. Y.] 405) ... 390
V. Westbrook (86 Hun [N. Y]. 363; 24
N. Y. Supp. 955, 33 N. Y. Supp.
449) 390. 428, 482
Dotv V. Smith (Sup.) (22 N. Y. Supp. 840) 878
Dougherty v. Grouff (Neb.) (36 N. W. Rep. 351,
[1888]) 14
Doughty V. O'Donnell (4 Daly [N. Y.] 60). . . .691
Douglass V. Commonwealth (108 Pa. St. 559),
147, 172, 176
Dovale v. Ackerman (Sup.) (37 N. Y. Supp.
959) 563
Dowden v. Cryder (N. J.) (26 Atl. Rep. 941) . . 31
Dowling V. Adams (Cal.) (41 Pac. Rep. 413) . .507
Downer v. Davis (19 Pick. 72 [1883]) 834. 843
Downey v. O'Donnell (86 111. 49, i^. c, 92111. 559
[1879]) 414, 423, 428, 431, 439, 445, 473
Downie v. Hendrie (46 Mich. 498) 892a
Doyle V. Dixon (97 Mass. 208) 103, 105
V. Dusenburg(Mich.)(74 Mich. 79 [1889]),
182. 187, 188
V. Fitchburg R. Co. (Mass.) (44 N. E.
Rep. 611) 864
V. Halpin (1 Jones & S. [N. Y.] 369).
324, 395, 595
Doyne v. Ebbsen (72 Wis. 234 [1888]) 440
Drais v. Hogan (50 Cal. 121 [1875]) 836
Drayton v. Reid (5 Daly [N. Y.] 442) 804, 805
Dressil v. Kingston (32 Hun .533) 662
Drisc6ll V. School Dist. (61 Iowa 426) 811, 813
DuBois V. D. & H. Canal Co. (4 Wend. 285
[18.30], 12 Wend. 334 [1F34], 15 Wend. 87
[1835]) 238, 323, 370, 384. 385. 400, 412, 569, 572, 700
Duckworth v. Allison (1 M. & W. 412) 324
Duel] V. McCraw (Sup.) (.33 N. Y. Supp. 528),
40.5, 411
Dugan V. Thomas (79 Me. 221 [1887]). . .344, 345, 405
Dugro, J?e (50 N. Y. .513) 163
Duguid V. Edwards (.50 Barb. 288 [1867]) 616
Dull V. Bramhall (49 111. 364 [1868])... 810, 814, 825
Dullaghan V. Fitch (42 Wis. 679) 316
Duluth V. Heney (43 Minn . 1.55) 20
V. McDonnell (Minn.) (63 N. W. Rep.
727) 545
Dumont v. United States (98 N. Y. 142) 629
Dunaberg & W. Ry. Co. v. Hopkins Co.
(Eng.) (36 L. T. Rep. 7.33 [1877]). .427. 443, 446, 447
Duncan v. The Board of Miami Co. (19 Ind.
154) 545, 569
V. Gibson (45 Mo. 352) .669
V. Topham (8C. B. 22.5) 310
Duncombe v. City of Ft. Dodge (38 Iowa 281). 719
xlviii
TABLE OF CASES.
Dunlop V. Higgins (1 H. of L. Cas. 381 [1848]). y5
Dunn V. Johnson (33 Ind . 54) 687
• V. Steubiug (120 N. Y. 232 [1890], (N.
Y.) 24 N. E. Rep. 315 [1890] 55 N.» Y.
Super. Ct. 533) 325, 567, 726
Dunton v. Chamb^jrlain (1 Brad well 361 [1878]),
68, 812
Duplanty v. Stokes (Mich.) (61 N. W. Rep.
101.5]) 123
Durfee v. O'Brien (14 Atl. Rep. 857 [1888]) ... 104
V. Moren (57 Mo. 374 [1874]) 82, 148
Duryeav. Bliveu (122 N. Y. 567]) 26
Dutch V. Warren (Keener's Cases of Qtiasi-
Contracts 61) 691
Dwengeri;. C. & G. T. Ry. Co. (98 Ind. 153
[1884]) 38
Dwightv. Cutting (Sup.) (S6N. Y. Supp. 99). 629
Dwinell v. Brown (.54 Me. 468) 318
Dwyer v. City of Brenliam (70 Texas 30 [1888]). 612
V. Tulane Ed. Fund's Admr's (La.) 17
So. Rep. 796) 687
Dyer v. Barstow (50 Cal .652 [1875]) 17
V. Sutherland (75 111. 583 [1874]) 612
Dygertv. Schenck (23 Wend. [N. Y] 446) 652
E.
Eadie v. Addison (52 L. J. Ch. 80, 47 L. T.
543) 183
Eager, In re (46 N. Y. 100) 139, 157, 164
Eagle I. Wks. V. Guthrie Center (Iowa) (66 N.
W. Rep. 81) 228
Earl V. Crouch (Sup.) (16 N. Y. Supp. 770)... 627
Earl of Darnley v London, C. & D. Ry.Co., 3
DeG. J. &S. 24) 351
Earle v. Lefler (46 Hun 9) 892
East Anglian Ry. C;o. (The) v. Lythgoe (2 L.
M. & P. 221) 804
Easthara v. Rledell (125 Mass. 585) 894
V. Armstrong (26 111. 216) 486
Eastman r. State (27 N. E. Rep. 358) 886
East on v. Cressey (Cal.) (34 Pac. Rep. 622). .. 317
V. Pa. & Ohio Canal (13 Ohio 79 [1844),
318, 323 720. 730, 'iSl. 744, 748
E. Tenn., V. & G. Ry. Co. v. Cent. Lumb.
M. Co. (Tenn.) (32 S. W. Rep. 6:]6) 428
East Tenn., V. & G. Ry. Co. v. Matthews
(85 Ga. 457. 11 S. E. Rep. 841 [1890]).. ..382, 601
East Texas F. I. Co. v. Kempner (Tex.) (34
Rep. S. W. Rep. 393) 232
East River Gas Co. v. Donnelly (93 N. Y. 557,
25 Hun 615 [1881]).. 141, 176, 178, 179, 180, 844,
845, 857
Eastern Granite Co. v. Heim (la.) (57 N. W.
Rep. 437) 689
E. Lancasliire Ry. Co. v. Hattersley (8 Hare
72 [1849]) .737, 747
Eaton V. Eaton (8 Ired . Eq . 102) 428
V. European & N. A. R. Co. (59 Me. 520
[1871]) 545, 667
V. Glad well (Mich.) (66 N. W. Rep. 598),
122, 618, 701
V. School District (23 Wis. 374 [1868]),
674, 675
Ebdy V. McGowan (Cr. of Exch., Nov. 17, 1870,
The Times, s. c. Koscoe's Digest of Building
Ca.ses 134) 812, 814, 815
Eborn v. Zinipleman (47 Tex. 503 [1878]) 880
Eby V. Lebanon County (Pa.) (31 Atl. Rep. 332),
645, 664
EccIhs v. Southern (3 F. & F. 142) 569
Eddy V. Clement (38 Vt. 486) 678
V. Livingston (35 Mo. 493) 830
Eddv's Exr. i?. Northrup (Ky.) (23 S. W. Rep.
3.53) 479
Edgerlv v. Farmers'" Ins. Co. (43 Iowa 587) 572
EdiB v'. Kingsford (14 C. B. 7.59) 569
Edison Elec. Co. v. Can. Pac. Nav. Co. (Wash.)
(36 Pae, Rep. 260) ... 2.57
Edmundson v. Wilson (Ala.) (19 So. Rep. 367),
479, 484
Edmunson v. Pittsburgh, etc., R. Co. (Ill Pa.
St. 316) 606, 6G7
Edwards v. A. Mut. Ins. See. (L. R. 1 Q. B. D.
563) 415
Edwards V. Derrickson (4 Dutch. 39, s. c. 5
Dutch. 468) 674
V. Ferguson (73 Mo. 686 [1881]).. 180, 844
V. Louisa Co. (la.) (56 N. W. Rep.
656) 41.5, 428
V. Randle (Ark.) (38 S. W. Rep. 343). 7a
Edwards Co. v. Jennings (Tex.) (35 S. W. Rep.
1053) . 70
Efron V. Clayton (Tex.) (35 S. W. Rep. 424) . . .809-
Egan V. Dry Dock, etc., K. Co. (Sup.) (42 N.Y.
Supp. 188) ....888
Egger V. Rhodes (Cal.) (37 Pac. Rep. 1037) 891
Eggleston v. Boardnian (37 Mich. 14) 500
Ehrisman v. Scott (Ind. App.) (32 N. E. Rep.
867) 8:8
Ehrlich v. Mtn& (15 Mo. App. 552, 88 Mo. 249,
4 West Rep. 40) 690, 691
Eichelberger v. Miller (20 Md. 332) 676, 677"
Eigeman v. Posey Co. (82 Ind. 413) . . . 554. 55, 572
Eight hour Law, In re (Col. Sup.) (39 Pac. Rep.
328) :. 144
Eiseraan v. Heine (Sup.) (37 N. Y. Supp. 861).. 116.
Eisenmeyer v. Sauter (77 111. 515 [1875]). 486, 487, 491
Elbring v. Mullen (Idaho) (.38 Pac. Rep. 404).. 799-
Elder v. Reilly (Minn.) (51 N. W. Rep. 126) . . .87?
Elec. Ltg. Co. V. Mobile, etc.. By. Co. (Ala.) (19
So. Rep. 721) 706, 709'
Electric S. & C. Co. v. Consolidated L. & Ry.
Co. (W.Va) (26 S. E. Rep. 188) 381
Elgin V. Joslyn (136 111. 5^5, 36 111. App. 301,
26 N. E. Rep. 1090 [1891]).
155. 553, 565. 572, 584, 693, 890-
Elgin, City of, v. Shoenbei-ger (59 111. App. 384) 256-
Eliason v. Coleman (86 N. C. 235 [1882]) 8.5»"
V. Henshaw (4 Curtis 382 [1819]) 96
Elizabethtown & P. R. Co. v. Geoghegan
(9 Bush. [Ky.] 56 [1875]).. 315. 318. 319, 715, 730, 731
Elkart Co Lodge v. Crary (98 Ind. 238 [1884]). 73-
Elkridge v. Rowe (4 Gilm. [111.] 91). ... 697, 704
EUerbe v. Nimor (La.) (21 So Rep. 583) 70a.
Elliott V. Caldwell (43 Minn. 357 [1890])... 699, 701
V Edwards (.35 N. J. Law 265 [l87l]). . . . 273-
V. Mitmeapolis (Miim ) (60 N. W. Rep.
1081). 171
V. M. K. & T. Ry. Co. (99 U. S. 573
[1878], (C. 0. A.) (74 Fed. Rep. 707),
315, 428. 429, 430"
V. Royal Exch. Assn. Co. (L. R. 2 Ex.
237) ..415.
V. S. Devon Ry. Co. 2 De G. & S. 17),
509. 510 511
EUmaker v. Ins. Co. (Pa.) (6 Watts & S. 439).. .' 574-
Ellis V. Cleburne (Tex.) (85 S. W. Rep. 49.5). . .141
V Hamlen (3 Taunt. 52) 242, 573, 703^
V. Lane (85 Pa. St. 265) 700-
V. Paige (1 Pick .43) 310-
V. Sheffield Gas Co. (2 EI. & Bl. 767) . . . .640a
Elmira Gas Co. v. Elmira (2 Alb. L. J. 392) .... 51
El Reno. City of, v. CuUinane (Okl.) 16 Pac.
Rep. 510) 322
Eiston V. Jasper (45 Texas 409) 25
EUwood V. Mani (Com. PI.) (lO Pa. Co.Ct. Rep.
474) .. 76
Emmet Co. v. Allen (la.) (41 N. W. Rep. 201
[1889]). 63
Emerson v. Cogswell (16 Me. 77) 699
V. Providence Hat Co. (12 Mass. 241). 503
V. Slater. (22 How. 28) Ill
v. Udall (13 Vr. 477) 428
Emery v. Bradford (29 Cal. 7.5) :5
Emigrant Ind. Sav. Bank, Re (75 N.Y. 388). 173, 507
Emmerson v. Fay (Va.) (25 S. E. Rep. 386) 655
Engel V. Schooherr (12 Daly [N. Y.] 417) 804
V. Scott & Co. (Minn.) (61 N. W. Rep.
825]) 124
Engesette v. McGilvray (63 HI. App. 461) .... 682
Engle V. Eureka Club (N. Y. App.) (32 N. E.
Rep. 1052) 641r*
Engleby v. Harvev (Va.) (25 S. E. Rep. 225) . . 5.53-
Enfjlish V. School Dist. (Pa.) (.30 Atl. Rep. 506). 4i^
Engster v. West (.35 La. Ann. 119) 678
Funis V. O'Connor (Md.) (3 H. & J. 163 [1810]). 257
Epeneter v. Montgomery Co. (Iowa) (67 N.W.
Rpp. 93) 17, 86&
Epperson v. Shelby Co.(7 Lea [Tenn.] 275). 143, 682
TABLE OF CASES.
xlix
Equitable Gas Lt.Co. V. Bal. Coal Tar Mfg, Co.
(08 Md. 285) 707
Equitable L. Assur. Soc. v. Smithy (35 111. App.
471) ... 562
Erickson v. Brandt (53 Minn. 10, 56 N.W. Rep.
6-,>) 20,70, 761
Ericsou V. Brown (;i8 Barb. 390). 862, 863
Erie, App. of City of (91 Pa. St. 398 [1892]) .... 44
Erie v. Caulkins (85 Pa. St. 247) 644, 667
Erie R. Co. v. Union Loc. & Express Co. (35 N.
Law 240 [1871]) 70
Erie Tel. & Teleph. Co. v. Bent (39 Fed. Rep.
409[18S9]) 526
Errin^ton v. Aynesley (2Bro. C- C. 341) 674
Erskine v. Johnson (23 Neb. 261, 36 N.W. Rep.
510 [1888]).... 326,565,587,837
Ertle V. Leary (Cal.) (46 Pac. Rep. 1) 153, 161
Erving: v. City of New York (N. Y. App.) (29 •
N. E. Rep. 1101, affirming 16 N. Y. Supp.
612) 168, 183
Escott V, White (10 Bush. [Ky.] 169) 569
Estel V. St. Louis, etc., R. Co. (56 Mo. 282
[18741) 370,391,417
Estep V. Fenton (66 111. 467) 468, 701, 703
Eth ridge v. San Antonio Ry. Co. (Tex.) (39 S.
W. Rep. 201) 891
Etting V. Dayton (17 N. Y. Supp. 849) 697
Eureka S. Stone Co. v. Long (Wash.) (39 Pac.
Rep. 446) .. , 796
European Ry. Co. v. Poor (59 Me. 377) 42
Eva u. McMahon (77 Cal. 467) 315
Evans v. Bennett (7 Wis. 404) : 801
V. Graden (.\Io.) (28 S. W. Rep. 439) 20
V. Horan (.52 M. D. 60-') 25
V. Ives (15 Phila. [Pa.] 633) 417
V. McConnell (la ) (63 N. W. Rep. 570, 68
N. W. Rep 790) 414, 495, 580
V. Montgomery (50 Iowa2325), (Mich.) (55
N. W. Rep. 362) 491, 577
V. State (Ala.) (19 So. Rep. 5.34) 892
V. W. Brass Mfg. Co. (Mo.) (24 S. W.
Rep. 17.5) ... 621
Ever»!vrd v. City of New York (Sup.) (35 N. Y.
Supp. 315) 413
Everroad v. Schwartzkopf (Ind.) (23 N. E. Rep.
9f)9) 568
Ewing V. Goode(C. C.) (78 Fed. Rep. 442). .8S6, 889
Excelsior Needle Co. v. Smith (61 Conn. 56
[189i]) 124, 681, 703
Excelsior Paving Co. v. Pierce (Cal.), 33 Pac. •
Rep. 727, and 34 Pac. Rep. 116) 334
Eyerinan v. Mt. Sinai Cem. Assn. (61 Mo. 489). 703
Eyser v. Weisgerber (2 Iowa 463) 183
Eyster v. Parrott (83 111. 517) 325
Faggard v. Williamson (Tex.) (23 S. W. Rep.
557) 348
Fain v. Turner's Adm'r (Ky.) (29 S. W. Rep.
6-^8) 103
Fairbanks v. Meyers (98 Ind. 92 [1884]) 796
V. Mothersell (60 Barb. 406 [1871]).. 26
Fairfield v. Jeffreys (68 Ind. 578) 687
I'airlee v. Fenton (L. R. 5 Exch. 169) 30
Falk V. Donaldson (C. C.) (.57 Fed. Rep. 32) ... 816
Falkner 17. Guild (10 Wis. .563) 135
Falls V. Carpenter (N. C.) (1 Dev. & B. Eq. 237) 574
Fallon V. Lawler (102 N. Y. 228) 724, 726
Farebrother v. Simmons (5 B. & Aid. 333) .. .795
Faren v. Sellers (La.) (3 So. Rep. 363, 37 Alb.
Law Jour. 321 [1887]) 244, 664, 665, 666
Farman v. Commissioners of Darke Co. (21
Ohio St. 311 [1871]) 170
Farmer v. Calver, elc, Co. (5 Am. L. T. Rep.
174) ..822
Farnham v. Davis (Me.) (9 Atl. Rep. 725 [1887]).. Ill
V. Ross (2 Hall 167, 187) 318, 326
Farnsworth v. Garrard (1 Camp. 38) 257, 701
Farquharr. Hamilton (20Ont. App. 86 [1893]).. 511
Farr v. Swan (2 Pa. St. 245) 890
Farrand v. Marshall (19 Barb. 381) 643
Farrar v. Be'^man (63 Texas 17,5) 315
Fai-rell v. Edwaivls (S. D.) (66 N. W. Rep. 812). 31
Il'atout V. Board (102 Ind. 224) , . 766
Fauble & S. v. Davis (48 Iowa 462 [1878]). . .691, 701
Faulkner v. Low (2 Ex. 595) 340
Faunan v. Commissioners (21 Ohio St. 311
[1871]) 146
Faunce v. Burke & Gonder (16 Pa. St. [4 Harris]
469-480 [1851]) 318, 412, 413, 415, 428, 490, 744
Faurote v. State (Ind.) (11 N. E. Rep. 472, 7y0
[1887]) 765
Faxon v. Mansfield (2 Mass. 147) 699
Fay V. Muhlker (Com. PI.) (20 N. Y. Supp. 671). 569
Fayette County v. Laiug (127 Pa. St. 119
[1889]) 438,4.39
Fearnley v. De Manville (Colo. App.) (39 Pac.
Rep. 73) 73
Fedder v. Odorn (2 Heisk. 68) 75
Feeterv. Heath (11 Wend. 484) 700
Fehler v. Gosnell (Ky.) (35 S. W. Rep. 1125) ... 334
Feinberg v. Weiher (Com. PI.) (19 N. Y. Supp.
215) 257,722
Felker v. New Whatcom (Wash.) (47 Pac. Rep.
505 [1897]) 154
Fellows V. Mayor (17 Hun 249) 626
V. Snyder (Kan.) (32 Pac. Rep. 639). . . 381
Felt V. School District (24 Vt. 297 [1852]). . .828, 835
V. Smith (62 III. App. 670) 675
Feltham v. Sharp (6a.) (25 S. E. 619) 860
Felton V. Deall (22 Vt. 170) 656
Feltus V. Su an (62 Miss. 415 [1884]) 842
Ferguson v. Davis Co. (57 Iowa 601 [1881]). 245, 246
V. Hubbell (97 N. Y. Rep. .507) 870
Ferrier v. Knox Co. (Tex.) (33 S. W. Rep. 896),
£26,494, 545
V. Storer (19 N. W. Rep. 288 [1884]) . ... 96
Fessman v. Seeley (Tex.) (30 S. W. Rep. 2l8).. 3l8
Fidelity & C. Co. v. Eickhoff (Minn.) (65 N. W.
Rep. 351) 344
Ffdelity Title & Trust Co. v. People's Gas Co.
(Pa.) (24 Atl. Rep. 339) 126
Fildew V. Besley (42 Mich. 100) 674, 61.5, 676
■ Filleul V. Armstrong (7 A. & E. 557) 804, 805
Findlay, City of, v. Pertz (C. C. A.) (66 Fed.
Rep. 427) 85
Findley v. City of Pittsburgh (82 Pa. St. 351),
172, 176
Finelite v. Sinnott (125 N. Y. 6f3 [1890]) 224
Fink V. St. Louis (71 Mo. 52 [1879]) 638
Finlayson v. Wiman (Sup.) (32 N. Y. Supp. 347) 126
Rinnegan & Co. v. L. Engle (8 Fla. 413 [1859]).
4.4, 442
Finney v. Condon (86 111. 78 [1877]) 20. 445, 473
Firth V. Midland Ry. Co. (L. R. 20 Eq. 100),
438, 506, 706
First Cong. Church of Rockland v. Holyoke
Mut. Fire Ins. Co. (Mass.) (33 N. E. Rep. 572) 891
First Nat. Bank v. Dunn (N. J.) (27 Atl. Rep.
908)...- 128
V. Zeims (Iowa) (61 N. W.
Rep. 483) 794
First Presby. Ch. v. Santy (Kans.) (34 Pac.
Rep. 974) 758
First P. C. of E. v. Smith (Pa.) (30 Atl. Rep.
279). 648
First Unit. Soc. v. Faulkner (91 U. S. 415) 813
Fish V. Chicago Stamping Co. (58 111. App. 663) 256
V. Dodge (38 Barb. 168, 17 Amer. L. Reg.
102). 863
Fisher v. Beard (32 Iowa 346) 643
V. Borough (1 Pa. Super. Ct. 386) 383
V. City of R. (6 Lansing 225) 266
V. Wiiliamsport (1 Pa. Super. Ct. 386).. 5.56
Fitzgerald v. Allen (128 Mass. 232 [1880]) 728
V. Beers (31 Mo. App. 356). 481, 545, 567
V. Fitzgerald & Mallory Const. Co.
(Neb.) (59 N. W. Rep. 838),
66, .561,563
V. Havward (50 Mo. 516). . .689, 690, 691
V. La Porte (Ark.) (40 S. W. Rep. 261
[1897]) 701
V. Moran (19 N. Y. Supp. 9.58. 86 N.
E. Rep. 508) 219, 228. 384, 388
V. Walker (Ark.) (17 S. W. Rep. 702
[1891]) 138
Fltzpatrick v. Chicago, etc., R. Co., (31 111.
App. 649) 667
V. Cottingham (14 Wis. 219) 315
TABLE OF CASES.
621
691
428
702
69
555
678
324
569
758
646
Fitzpatrick v. Engard (Pa.) (34 Atl. Rep. 803).. 7«5
Fitzsimmons v. Christian Brothers (81 Mo. 37
[1883]) '.
Fhulung V. Dawson (Cal.) (53 Pac. Rep. 1107),.
Flaharty v. Beatty (:i2 W, Va. 698)
Flaherty v. Miner (1:^3 N. Y. 382 [1890]),
90, 411, 413, 415, 417. 439,
Flanders v. Fay (40 Vt. 316)
V. Wood (Tex) (18 S. W.Rep. 572).8^, 148
Flannery v. Rohrmayer (46 Conn. 558) 701
V. Sahagian (N. Y. App.) (31 N. E.
Rep 319) 473, 484, 526, 702
Flemining v. City of Suspension Bridge (92 N.
Y. 368 [1883]) 157, 178,
V. Blanne Ins. Co. (4 Wharton 69). . .
Fletcher v. Dycbe (2 T. R. 32)
V. Gillespie (3 Bing. 637)
V. New Orleans & N. E. R. Co. (La.)
(19 Fed. Rep. 731 [1884]).427, 428,
V. Rylands (L. R. 1 Exch. 26.5)
Flinn v. Prairie Co. (Ark.) (29 S. W. Rep. 451).. 898
Flood V. Morrisey (4 Pugsley & B. [N. B.] 5
[1880]) 545,566,677
Florida Cent. & P. R. Co. v. State (Fla.) (13 So.
Rep. 103) 84
Florida R. Co. v. Smith (21 Wall. [U. S.] 25.5), 257, 703
Florence Gas. ere, Co. v. Hanby (Ala,) (13 So.
Rep. 343 [1893]) 310
Florsheim v. Dullaghan (.58111. App. 593) . ... 646
Floss Union Bldg. Assn. v. Chicago (.56 III. 354). 507
Flynn v. Des Moines R. Co. (63 Iowa 491 [1884]),
354. 415, 572, 581, 724, 726
Focht V. Rosenbaum (176 Pa. St. 14, 34 Atl. Rep,
1001 [1896]) ; .5.52,573
Fogg V. Suburban Rapid-Transit Co. (90 Hun
[N. Y.] 274) 761
Foley V. McKeegan (4 Iowa 1) 315, 816
Folkesu. Chadd (3 Doug. 157) 891
Folliotv. Hunt (21 111. 654) • 691
Foilmer v. Cominrs.^ of Nuckolls Co. (6 Neb.
204) 161, 177
Folsom V. McDonough (6 Cush, 208) 326
Forbes v. Carutliers (3 Yeates 527) . . 890
V. State (Tex.) (29 S. W. Rep. 784) 875
Ford V. Beech (L. R. 1 1 Q. B. 866) 18:^
V. Burchard (130 Mass. 424) 575
V. Danks(16 La. Ann. 119) 806
V. Gregson (Mont.) (14 Pac. Rep. 659
[1887]) 81
V. St. L. K. & N. W. Ry. Co. (51 Iowa 72.3).
601, 657
V. St. Louis, K. & N. W. R. Co. (63 Mo.
App 133). 611
V. Smith (25 Ga. 675) 573, 697, 700, 701
V. Springer Land Assn. (N. BI.) (41 Pac.
Rep 541) 762
V. Tirreli (Mask ) (9 Gray 401) 621
V. Uniteo States (17 Ct. of CI 60). 564, 566, 569
Fordyce v. Moore (Tex.) (22 S. W. Rep. 235).. . 875
Forrester v. Waller (2 Eden 328) 816
Forst V. Leonard (Ala ) (20 So. Rep. 587) .. ..219
Forster v. Green (Hich ) (69 N. W. Rep. 647). . 810
V. Ultnan (64 Md 523) 132, 182
Forsyth v. Hastings (27 Vt. 646 [1855]) 803
V. Hooper (1 1 Allen [Mass.] 419),
655, 662. 667
V Mann (Vt.) (34 Atl Rep. 481) . ..101
Fort V. Allen (N. C ) (14 S. E Rep. 685 [1892]) . 524
Fortiscue v. Crawford (S. C.) (10 S. E. Rep. 910). 215
Fortune v. Killebrew (Tex.) (21 S. W. Rep. 986) 522
Foster, In r« (Midi ) (3 Am. Law Times Rep.
■ 411 [1876]) 880
V. Cape May (N. J.) (.36 Atl. Rep. 1089
[1897]) .' .*. 42
V. City of Jo Met (27 Fed. Rep. 899 [1886]) 326
V. Dawber (6 Exch. 830) 69, 97, 562
V Fowler (60 Pa St. 27) 766
V. Mackinnon (L. R. 4 C. P. 704, 711). .. 91
V. St. Lous (71 Mo. 157 [1879]) 247
V. Swaback (.i8 III. App. 581) 762
V. Worten (67 Mi.ss. 540) 59
V. Worth! ngton (.58 Vt. 65) 325
Foushee v. Grigsley (12 Bush 75 [1876]) mi, 862
Fowlds V. Evans (Minn.) (54 N. W. Rep. 743).
325, 726
36)
Franklin Sugar Co. v. Taylor (Kans.) (15 Pac.
Rep. 586 [1888])
Fiianklyu v. Darke (3 P\ & F. 65) 545,
V. Taton (5 Madd. 469)
Frazier V. Borough of B. (Pa.) (;« Atl. Rep. 691).
Frecher v. Greeseka (5 Iowa 472)
Fredenhall v. Taylor (23 Wis. .538)
Freeburg v. St. Paul Plow Works (Minn.) (50 N.
W. Rep. 1026)
Freed v. Richy (Pa.) (8 All. Rep. 626)
Freedman v. Sandkuop (N. J.) (31 Atl. Rep. 232)
Freel, In re (148 N. Y. 165 [1898]), (Sup,) (38 N,
Y, Supp, 143) 445,
Freeland v. Bacon (7 N; Y. Supp. 674)
Freeman v. Taylor (1 Mo. App. Reptr. 582)
French v. Langdon (Wis.).(44 N.W. Rep. 1111).
V. Syracuse (Sup.) (41 N. Y. Supp.
1036)
V. Vix (Com. PI.) (21 N. Y. Supp. 1016),
(N.Y.App.)(37N. E.Rep.612)...17,
French! r. Collender Co. (Com. PI.) (13 N. Y.
Spp. 294)
Fresh v. Gilson (5 Cranch C. C. 533 [1838])
Fresno Canal & Irrigation Co. v. Warner (Cal.)
(14 Pac. Rap. 37)
Freston v. Lawrence Cement Co. (Sup.) (30 N.
y. Supp. 144)
Frey v. Ft. Worth Sc R. G. Ry. (Tex.) (24 S.
W. Rep. 9.50)
Friedland v. McNeil (:« Mich. 40) [1875]... .518,
Friend v. Miller (Kan.) (31 Pac. Rep. 397)
Frink v. Missouri Fur. Co. (10 Mo. App. 61)....
V. St. Louis (71 Mo. 52 [1879])
Fritz V. Burgess (S. C.) (12 S. E. Rep. 304)
Frohrelch v. Gaurinon (28 Minn. 476). . .181,
Front St. M. & O. R. Co. v. Butler (50 Cal. 574
[187.5]) 409,
Fruin v. Crystal Ry. Co. (Mo.) (14 S. W. Rep.
557 [1886]) 321. 590,
Fuchs. V. Koerner (N. Y.) (The Reptr. Feb.
[1888]) . *:
Fudicker v. Ins. Co. (62 N. Y. 392)
Fullam V. West Brookfleld (9 Allen [Mass.] 1).
Fuller V. Artman (24 N. Y. Sup. 13)
V. Brown (N. H.) (84 Atl. Rep. 463)
V. Dame (18 Pick. 472)
V. Grand Rapids (Mich.) (63 N. W. Rep.
530) 275,
V. Peninsular, etc., Wks. (Mich.) 69 N.
W. Rep. 492)
V. Rome (.57 N. Y. 23 [1874])
Fullerton v. McLaughlin (Sup.) (24 N. Y. Supp.
280) ,
Fulton V. Peters and Fulton v. Metzgar (187
Pa. St. 613 [1890])
Fulton Co. St. R. Co. v. McConnell (Ga.) (13 S.
E. Rep. 828 [1891])
Furgeson v. Habbell (97 N. Y, 507 [1884])... 884,
G.
Gable v. Graybill (1 Pa. Super Ct. Rep. 29) . Ill
Gahagan v. Aerometer Co. (Minn.) (69 N. W.
Ren. 914) .. .. 654
Gaither v. Myriok (9 Mo. 118) 840
Gale t'. Kalamazoo (23 Mich. .344) 81
Galena & C. U. R. Co. v. Welch (24 111. 31 [1860]). 891
Galey v. Mellon (Pa. Sup.) (.33 Atl. Rep. 570) . 14
Gallagher v. Nichols (60 N. Y. 438) 581
V. Sharpless (Pa.) (19 AM Rep. 491
[1890]) 372, 396, 700, 703
TABLE OF CASES.
li
Gallo V. City of New York (Sup.) (44 N. Y.
Supp. 143) ■. 739
Galloway v. Webb (Hard. [Ky.] 318) 475
Galveston v. Devlin (Tex.) (19 S. W. Rep. 395
[im-Z]) 45, 398, 595. 596, 778
Galveston City R. Co. v. Miller (Tex.) (38 S. W.
Rep. 1132) 689
Galveston, H. & S. A. Ry. Co. v. Briggs (Tex.)
(23S.W. Rep.
603) 891
V. Daniels (Tex.)
(20 S.W. Rep.
955, 28 S. W.
Rep. 548). 888, 891
G., H. & S. A. Ry. Co. v. Henry & Dilley (65
Tex. 685 [1886]),
370, 382, 402, 428, 623
V. Johnson (74 Tex. 256
[1889]).219, 382,402, 623
Galyon v. Ketchon (85 Tenn. 55) 675
Gano V. Palo Pinto Co. (Tex.) (8 S. W. 634
[1888]) 35, 611, 615
Gannon v. Howe (14 Me. 250) 320
Gardner v. B. & M. R. Co. (70 Me. 181 [1879], 7
Amer. Corp. Cas. 326) 371. 377, 553
V. Leek (Minn.) (54 N. W. Rep. 746) ... 862
V. Masters (3 Jones Eq. [N. Car.] 462),
434, 483
Garfelde v. United States (93 U. S. 242) 183
Gari-ett V. Baustead, etc., R. Co. (11 Jur. [N.S.]
654) 708, 719, 720, 747
V. Salisbury & D. Ry. Co. (L. R. 2 Eq.
358) 268, 273
Garretty v. Brazell (34 Iowa 100) 676, 677
Garrison v. Nute (87 III. 215) 580
V. United States (7 Wall. 688) 230
Garnsey v. Rhodes (Sup.) (18 N. Y. Supp. 484
[1892]) 124. 481, 491, 584, 703
Garver v. Daubenspeck (22 Ind. 238 [1864]) 572
Gas Co. V. West (23 Neb. 852) 42
Gashweiles v. Willis (33 Cal. 11) 555
Gaslin v. Hudson (24 Vt. 140 [1852]) 835
Gastlin v. Weeks (Ind. App.) (28 N. E. Rep. 331
[1891]) ■ 690, 703
Gates Iron Wks. v. Cohen (Colo. App.) (43 Pac.
Rep. 607) 272
Gato V. Warrington (Fla.) (19 So. Rep. 883). ... 20
Gauche v. Lond. Ins. Co. (10 Fed. Rep. 347). ... 345
Gautz V. Dist. of Columbia (18 Ct. of CI. 569). .. 230
Gay V. Haskins (30 N. Y. Supp. 191),
388, 4C8, 445, 473
V. Lathrop (6 N. Y. St. Rep. 603, 2 Wood on
Railroads 999) 495
Geary v. Bangs (138 111. 77) 686
Geer v. Darrow (61 Conn. 230) 653, 655
V. Lumber Co. (Mo.) (34 S. W. Rep. 1099). 880
Geiger v. The W. Md. R. Co. (41 Md. 4 [1874]),
318,730, 734,744
Geistweidt v. Mann (Tex.) (37 S W. Rep. 372).. 310
Gen'l St. Nav. Co. v. Rolt (6 C. B. [N. S.] 550). . 20
Genni v. Hahn (82 Wis. 9:2) 702
Genovese v. Third Ave. R. Co. (Sup ) (43 N. Y.
Supp. 8, Genovese v. Mayor (55 N. Y. Super
Ct. 397) 3-,M, 326, 435, 554, 587
Georg V Nevada Cent. R. Co. (Nev.) (38 Pac.
Rep. 441) 43
George v. Bartlett (22 N. H. 406) 627
Georgetown W. Co. v. Central T. H. Co. (Ky.)
(31 S. W. Rep. 435) 44
Gerald v. Tunstall (Ala.) (20 So. Rep. 43). ..... . 389
Gerbig v. New York, L. E. & W. R. Co. (Sup.)
(27 N. Y. Supp. 594) 891
Gere v. C. B. F. Ins. Co. (23 N. W. Rep. 137). . . 345
German Ins. Co. v. Morris (Ky.) (37 S. W. Rep.
267) .' 412
German Fire Ins. Co. v. Roost (Ohio Supp.) (45
N. E. Rep. 1097) 400
German T. S. v. City of Dubuque (54 Iowa 736,
17 N. W. Rep. 153) 880
Gerner v. Church (Neb.) (62 N. W. Rep. 51).
49 129 221
Gervais v. Edwards (2 Dru. & War. 80). ...'... .' 3.'M
Getty V. Ames (Oreg.) (48 Pac. Rep. 355 [1897]). 861
Gibbons v. Bente (Minn.) (53 N. W. Rep. 756.)
688, 690
Gibbons v. Chalmers (1 C. & E. 577 [1885]) 76
V. Russell (13 N. Y. Supp. 879) 439, 702
V. United States (109 U. S. 200, 15 Ct.
of CI. 174 [1879]) 121, 579, 580, 674
Gibney v. Turner (Ark.) (1^ S. VV. Rep. 201
[1889]) 691
Gibson v. Cranage (39 Mich. 219) 340, 42*
V. Dunman (1 Hill [8. C] 289) 670
V. Hardware Co. (Ala.) (10 So. Rep. 304). 38
V. Owens (Alo. fcjup.) (21 S. ^V . Ren.
1107) ; 175
V. Pelkie (37 Mich. 380) 65, 90
Gibson Co. v. Motherwell Iron Co. (123 Ind.
364) 3S0, 554
Gifford V. Hoffman (3 Phila. 127) 678
Gilbert & Barker Mfg. Co. v. Butler (Mass.) (15
N. E. Rep. 76 [1888]) 674. 675, 676.
Gilbert v. Beach (5 Bosw. 445, 16 N. Y. 607
[1858])... (j40, 664
V. Halpin (3 Ji-. Jur. [N. S.] 306) 652
V. West End St. Ry. (Mass.) (36 N. E.
Rep. 60) 880-
V. United States (1 Ct. of Claims 28
[1863]) 41
Gildersleeve v. Bd. of Ed. (17 Abb. Pr. [N. Y.]
210) 55&
Giles V. Diamond State Iron Co. (Del.) (8 Atl.
Rep. 368 and 11 Atl. Rep. 189 [1887-8]),
243, 246, 644
V. San Antonio F. Co. (Tex.) (24 S.W. Rep.
546) 241
Gilfillan, Appeal of (Pa ) (22 Atl. Rep. 593). ... 135
Gillv. Herreck(lll Mass. 501 [1873]) Ill
V. Midleton (105 Mass. 477) 830
V. United States (16 Sup. Ct. Rep. 322),
820, 823, 825
Gill Manfg. Co. v. Hurd (18 Fed. Rep. 673
[1883]) .' 88.90,2.56.684
Gillen V. Hubbard (2 Hilt. [N. Y.] 303).... 397, 4lO
Gillespie Tool Co. v. Wilson (Pa.) (16 Atl. Rep.
36 [1889]) .701
Gillett V. Mawman (1 Taunt 140) . 674
Gilliam V.Brown (Cal.) (48 Pac. Rep. 486 [1897]). 701
Gillies V. Manhattan B. Imp. Co. (N. Y. App.)
(42 N. E. Rep. 196) 414, 481, 691
Gillilan v. Rollins (Neb.) (59 N. W. Rep. 89.3),
316, 317, 318
Gillis V. Duluth, etc., R. Co. (Minn.) (25 N. W.
Rep. 603) 814, 843
Gillison v. Wannamaker (140 Pa. St. 358 [1891]),
545. 548
Gillmore v. Courtney (111.) (41 N. E. Rep. 1023),
414. 428, 429
V. Westerman (Wash.) 43 Pac. Rep.
345) 17
Gilman v. Stevens (54 How. Pr. 197 [1877]),
514, 616, 811, 814, 830, 837, 839, 840
Gilmanton v. Ham (38 N. H. 108) 898
Gilmer v. Tucker (42 Ala. 9) 669
Gilmore v. City of Utica (N. Y. App.) (29 N. E.
841, 15 N. Y. Supp. 274) 135. 159, 171
Gimbert v. Heinsath (11 Ohio Cir. Ct. Rep. 339),
762, 765
Ginn v. Bowers (126 Pa. St. 5-52 [1889]) 490
Ginnuth v. Blankenship & Blake Co. (Tex. Civ.
App.) (-'8 S. W. Rep. 828) 126
Girard L. I. Co. v. Cooper (C. C. A.) (51 Fed.
Rep. 332, 16 Supp. Ct. Rep. 879). . .183, 682, 796
Glade v. Schmidt (20 Bradwell, 157 [1885]), s.
c. 27111. App. 114) 479
Glasier v. Town of Hebron (16 N. P. Supp. .503) 880
Glaucus V. Black (.50 N. Y. 145 [1872]), (67 N. Y.
563 [1873]),
366. 388, 389, 411. 428, 442, 446, 468, 700, 708
Gleason v. Keteltas (17 N. Y. 491) 348
Glenn v. Leith (1 Com. Law. Ren. 569) 414, 415
Glens Falls Gas liight Co. v. Van Vranken
(Slip.) (42 N. Y. Supp. 339) 6.38
Glessner v. Patterson (164 Pa. St. 224) 514
Globe Printing Co. v. Stohl (23 Mo, App. 451). .892a
Gloucester Isinglass, etc., Co. v. Russia Ce-
ment Co. (154 Mass. 92) 707
Glover v. Shepperd (15 Fed. Rep. 833) 70.'»
Glyn V. Miner (27 N. Y. Supp. 341) 801
Godcharles v. Wigeman (113 Pa. St. 431) . .144, 615
lii
TALBE OF CASES.
'^oddard v. Barnard (1 6 Gray 205) 219
V. Crefleld Mills (C. C. A.) (75 Fed.
Rep. 818) 891
v. Harpswell (88 Me. 2^8) 38
V. King (Minn.) (41 N. W. Rep. (559
[1889]) 432, 433
Godel V. Raymond (27 Vt. 241 [1855J) 473, 483
•God well V. Raymond (27 Vt. 341 [1855]) 483
Golden Gate Lumber Co. v. Sahrbacher (Cal.)
. (38 Fae. Rep. 635) 257, 678, 702
Golden Gate Min, Co. v. Yuba Co. (Super. Ct.
65Cai. 187) 859a
Goldsboro, City of, v. Alofifett (C. C.) (49 Fed.
Rep. 213) 696
Goldschmid v. New York (Sup.) (^3 N. Y.
Supp. 447) 243
Goldsmith v. Hand (26 Ohio St. 101 [1876]),
388, 417, 474, 572, 697, 703
Gomer v. McPhee (Colo. App.) (31 Pac. Rep.
119) 674
Gonder v. Berlin Branch R. Co. (33 Atl. Rep.
61, 171 Pa. St. 492 [1895]),
383, 390, 458, 460. 461, 468, 473, 485, 490, 514
Gon vales V. McHugh (21 Tex. 259) 703
Good V. Chicago, etc., R. Co. (la.) (60 N. W.
Rep. 631) 629
Goodman v. Pocock (L. R. 15 Q. B. 576)... 439, 682
Goodrich v. Hubbard (51 Mich. 63) 695
V. Hurlbert (123 Mass. 190 [1877]).... 365
Goodwin v. McCormick (6 N. Y. Supp. 662
[1889]) 572
V. Provident Sav. Life Assur. Soc.
(Iowa) (66 N. W. Rep. 1 57) 95
Goofiyear v. The Mayor of Weymouth (35 L.
J. [N. S.] C. P. 12, 1 H. & R. 67),
366, 478, 518, 549, 595
Gordon's Will, In re (26 Atl. Rep. 208) 891
Gordon v. Norris (49 N. H. 376 [1870]) 675, 694
V. People (III.) 39 N. E. Rep. 560) 310
V. Rae (8 El. & Bl. 1065) 20
Gorham v. Gross (125 Mass. 233) 641, 643, 646
Gould V. Bourgeois (51 N. J. Law 361 [1889]).. 16
Gouidier v. Cormack (2 E. D. Smith 254) 6H7
Gourley V. Duke of Somerset (19 Ves. 431) 344
Gove r. Island City Co. (16 Greg. 93) 701
Grace v. Newman (L. R. 19 Eq. Cas 623 [1875),
^ 818, 822
•Graf V. Cunningham (N. Y.) (16 N. E. Rep 551
[1888]) 687, 688
'Grafton v. Eastern Counties R. R. Co. (8 Exch.
699) 366, 415
^Graham v. Bickman (4 Dall. 149) 316
V. KHtaltas(17N. Y.491. 496) 344
V. Trimmer (6 Kans. 231 [1870]).
2.57.615.621, 622
Grand Rapids R. Co. v. Van Deusen (29 Mich.
431).... 589,686
Grand R. L. & D. R. Co. v. Chesebro (.Mich) (42
N. W. Rep. 66 [1889]) 890
Grand Tower, etc., R. Co. v. Walton (III.) (37
N. E. Rep 920) 129
Grannis v. Branden (5 Day [Conn.] 260) 827
Grannis, etc., Co. v. Deeves (25 N. Y. Supp. 375.
72 Hun [N. Y.] 171) 325. 44.5, 689, 726
Grant v. Button (N. Y.) (14 Johns. Rep. 377
[1817]) 257
V. Common Council (Mich.) (52 N. W.
Rep. 997) 176
V. Davenport (36 Iowa 395) 47
V. Ludlow (8 Ohio St. 1) &30
V. Savan-iah, etc., R. Co. (51 Ga. 348
[1874]) 428, 439, 724, 7.39
Grassman v. Bonn (32 N. J. Fq. 43) 720
'Graves v. Caruthers (Meigs [Tenn.] 58, 65).. 240, 682
V. Pemberton (Ind. App.) (29 N. E.
Rep. 177) 887
Gravelle v. M. & St. L. Ry. Co. (10 Feb. Rep.
711 [1882]) 644
Graveson v. Tobey (75 111. .540 [1874|) 324, 326
vGray v. Central R. Co. (11 Hun [N. Y.] 70) .2.59, 340
V. Hintoti (Neb.) (7 Fed. Rep. 81 [1881]).. 674
V. Pnllen (5 B. & S. 970) 646
V. Sheppard (N. Y. App.) (41 N. E. Rep.
500) 804
V. Wilson (4 Watts 89) 407
6f
Grayson v. Lynch (16 Sup. Ct. Rop. 1064) 891
Great Northern Ry. Co. v. Witham (L. R. 9 C.
P.16[1873j 183
Green v. Boston & L. R. Co. (128 Mass. (221. .. . 815
V. Brook-s! (Cal.) (22 Pac. Rep. 849), b5, 804. 849a
V. Haines (1 Hilt. 254) 324, 585
V. Jackson (66 Ga. 250) 417, 428
V. Maloney (Del.) (7 Houst. 22) 794
V. Portland (32 Me. 431) 638
V. West Cheshire R. Co. (L. R. 13 Eq. 44). 706
V. Willard Barrel Co. (1 Mo. App. 202). . 823
Greenburg v. Early (23 N. Y. Supp. 1009) 801
Greene v. Baten)an (2 W'oodb. & M. 239) 90
V. Haley (5 R. I. 260) 689
V. Mayor of N. Y. (60 N. Y. 303, 1 Hun
[N. Y.]24) 188, 157
V. Paul (155 Pa. St. 126) 561
V. State (8 Ohio 310) 411, 421
Greenhill v. Isle of Wight R. Co. (23 L. T. [N.
S.] 885) 705, 706
Green leaf v. Beebe (80 111. 520 [1875]) 26
Greenough v. Rolfe (4 N. H. 357 [1828]) 486
Greenstein v. Banchard (50 Mich. 434 [1883])... 626
Greenville Sav. Bank v. Lawrence (C. C. A.)
(76 Fed. Rep. 545) 765
Greenwich Ins. Co. v. Waterman (C. C. A.) (54
Fed. Rep. 839) 611, 627
Greer v. Canfield (Neb.) (56 N. W. Rep. 8^3). ... 524
Gregg V. Dunn (S8 Mo. A|ip. 283) 703
Gregt.r v. Hyde (C. C. A.) (62 Fed. Rep. 107). . . 28
V. Hudson (Tex.) (30 S. W. Rep. 4810.. . 31
Gregory v. Brooks (37 Conn. .365) 845
Greiss V. Slate Invest. & Ins. Co. (Cal.) (33 Pac.
Rep. 19.^)..../ 524
Grening, In )c(s;6 N. Y. Supp. 117) 526,531
Greson v. Ketaltas (17 N. Y. 496j 344
(ireve v. Ganger (36 Wis. 369) 88
Giev V. Ellison (1 G iff. 438) 5
Grideri;. Tally (77 Ala. 4-,:;) 844
Grierson v. Mason (tiO N. Y. i94) 794
Griffin v. Miner (.54 N. Y. Super. Ct. 46j 572
V. Ogletree (Ala.) (21 So. Rep, 4h8j 310
Griffins v. Land Co. (3 Phila. 447 [1859]) 33
Griffith V. C. B. & P. R. Co. (la.) (36 N.W. Rep.
901 [I88h]) 38
V. Happersbeiger (86 Cal. tG5) 438
Griffiths V. Dudley (9 Q, B D. 357) 864
(^ripgv. Landis(l9N. J Eq. .3.50 [l^68|) i3, 293
Grigsby v Fonibs (Ky.) (21 S. W. Rep. 37) 101
Groffam v. Fierce (143 Mass 386) 561
Grofton v. E. L. R Co. (f< Exch. (19) 428
Groome -y. Ogden City (Utah) (37 Pac. Rep 9l). 129
Grounsell •y.'Lanib (1 M. & W. 352) 257
Grove v. Hodges (5 P F. Smith 504) 90
Grudger v. Western N. C. R. Co. (87 N. C.-525
[1 882] > 848
Guaranty Si T. Co. v. C bicago (111. Sup ) (44 N.
E. Rep. 8S2 [1896]) 154
Guardians. The, v. McLoiiglilin (4 Ir. Rep. C. L. '
4.'i7 [1856]) 183
Gubbinsv Lautensehlager (C. C.) (74 F"ed. Rep.
160) 27tT. 310, 416, 473, 579
Gudgeon v. Casey (62 III. App. 599) 89-2'i
Guerdon v. Corbett (87 111. 272) 682
Guerinv. Rodweli (8 Vr. [N. J.] 71) 584, 587
Gtiest V. Water Co. (Pa. Sup.) (21 Atl. R.
1001) 766
Guidet V. Mayor (36 N. Y. Sup. Ct. 5.57 [1873]),
421, 439, 440, 670
Guilbault v. McGreevy (18 Can. Sup. Ct 609).. 445
Guild V. Atchison, T. & S. F. R. Co. (Kans.
Sup.) (45 Pac. Rep. 82) 348, 427
V. Parker (43 N. J. Law 43(0 42
Guilford v. Supervisors Chenango Co. (13 N. Y.
143) 46
Gulf, C. &. S. F. Ry, Co v. Hepner (Tex.) (18 S.
W. Rep. 441) 891
V. Hodge (Tex. Civ.
App.) (30 W. Rep.
829) 704
V. Kelly (77 111. 426
[1875]) 42
V. Ricker (Tex.) (17 S.
W. Rep. 382 [1891])
890, 482
TABLE OF CASES
liii
Gulf, etc. R. Co. V. Riordan (Tex.) (22 S. W.
Rep 519) 507
V Shearer (Tex. Civ. App.)
(81 S. W. Rep. 133) 658
V. Ward (Tex.) (34 S. W.
Rep. 328) SI"?
■Gulick V. Ward (10 N J Law 87) 147, 148
Gunninc G- Co. v New Orleans (La.) (13 So.
Rep 182) 171.172, 17o
Giirlev V. Atlantic etc., R. Co. (58 N. Y. 358) 660, C6^'
Gustaveson v. McGay (12 Daly [M. Y.] 423
[188-i]) 495 584 701
Gut hat V. Gow (95 Mich 527). (Mich.) (55 N.
W. Rep 442). 402 428 595
Gutherless v. Ripley (Iowa) (67 N.W. Rep. 109). 48
Gutman v. Crouch (134 N. Y. 585. 10 N Y.
Supp 275) 324
Gutta Percha Co. v. Ogalalla (Neb.) (59 N. W.
Rep. 513) 44, 46
H.
Haas V. Green (Com. Pl.» (27 N.'y. Supp. 347). . 89i
Hackett v. State (Cal.) (3"? Pac. Rep 156) 586
Haddara v. East Lyme (Conn.) (5 Atl. Rep. 368). .522
Hadeo v Coleman (42 N. Y. Super. Ct. 256
(1877), 73 N. Y. 567 [1878]) 413 415 417
Hadley v. Baxendale (9 Ex 441) 317, 815
Hager v Callin (18 Hun 448 [1879]) 74
Haggert v. Morgan (5 N. Y. [I Seld.] 422), (4
Sandf. 198) 344, 351
Hagsler v. Owen (61 Mo. 270) 702
Hague V. PhUadelphia (48 Pa St 527 [1865]),
106. 157, 554, 556
Hahn v. Horstman (12 Bush [Ky.] 249) 315
Haines v. Thompson (19 N. Y. Sup. 184) lOl
Halcomb V. Weaver (136 Mass 265) 73
Haldane v. United States (C. C. A.) (69 Fed
Rep. 819) 174
Hale V Johnson (80 111. 185 [1875]) 653. 663, 691
ii Rv. Co (6 H. & N. 497) 641
Halff V O'Connor (Tex.) (37 S. W. Rep. 238)... 318
Hall V. Bennett (48 N. Y. Super. Ct 302 [1882]),
397, 440. 739
V Crandall (29 Cal. 567 [1865]) 36, 553
V Crowley (5 Allen 304) .. .. 318
V. Holt (2'Vern. .322) 553
V. Johnston (Tex.) (24 S. W. Rep. 861) 20
V Lo> Ansreles (74 Cal. .502. 13 Pac. Rep.
854 [1888]) 812
V. Norwalk F. I. Co. (Conn.) (17 Atl. Rep
356) 402, 436, 498, 527
V. Phillips (Pa.) (30 AM. Rep. 353) 129
V. Rankine (Iowa) (54 N. W. Rep. 217) 887
v. Rupley (10 Pa. St. 231) 439
V. Smith (2 Bing. 1.56 [1824]) 853, 859
V. Wright, F., B. & E. 765) 709
Hallenbeck v. Kindred (N. Y.) (15 N. E. Rep.
887 [1888]) 561
Hallidie v. Sutter St. Rv.' Co. (63 Cal. 575) 340
Halsey v. Hobbs (Ky.) (32 S. W, Rep. 415). 838, 849a
V. Sincebausrh (15 N. Y. 485) 877
Haman v. Stanly (66 Pa. St. 464) 641
Hamburg v. McCahan (3 Gill [Md.] 314 [1845]). 585
Hammerburg v. Met. St. Ry. Co. (1 Mo. App.
Rep. 578) 887
Hamilton v. Cbopard (Wash.) (37 Pac. Rep.
472) 183
V. Austin (62 N. H, 5:5) 59
V. Coogan (Com. PI.) (28 N. Y.'Supp,
21) 601.657
V. Gambeli (Oreg.) (48 Pac. Rep.
433 [1897]) 756
V. Hart (125 Pa. St. 142 [1889], 107
Pa. St. 419) 480
V Home Ins. Co. (137 U. S. 370
[1890]) 34.5, 411
V Liverpool. L. & G. Ins. Co. 136
U. S. 242 [1889]) 345, 411
V. Love (Ind. Sup.) (4^ N. E. Rep.
873) 803, 807, 809
V Railroad Co. (36 Iowa 31) 891
V Wood worth (Mont.) (42 Pac. Rep.
849) 20
Hamilton Co. v. Newlin (132 Ind. 27) 483
Hamilton Provident & Loan Society v. Bell (89
Gr. 203) 838
Hammond v. Beeson (112 Mo. 190, 20 S. W\
Rep. 474) 326, 689
V. Ins. Co. (10 Gray 306) 310
V. Miller (2 Mackey [D. C] 145).
699 720 728
Hampson v. Lewis (49 Md. 178) .' 728,' 731
Hanauer v. Doane (12 Wall. 342) 75
Hancock v. Yaden (121 Ind. 366) 144
Hand v. Baynes (4 Wharton 204) 678
Haney v. Caldwell (35 Ark. 156) 801
Hankinson v. Vantine (N. Y. App.) (46 N. E
Rep 292) 768
Hanks v. Gerbracht (26 N. Y. Supp, 1097) 20
V. Waglee (.54 Cal. 61 [1879]) 87
Hanley v. Walker (79 Mich 605, 45 N. W. Rep.
57 [1890]) 414.415 417,422,428.442 478
Hannah v. Fife (27 Mich. 172) 148
Haone v. Danibach (4 Pa. Co Ct. Rep. 833) 20
HapgooG V. Hewitt (119 U. S. 226) 823
Happet V. Thomas (Com. PL 5 Pa. Dist. Rep.
182) 317
Harbinger, The (50 Fed. Rep. 941) 627
Harder v. Com'r. (97 Ind. 455) . . 720
Hardie t>. Belger (11 Wright 60) 412
Hardiman v. Brown (Mass ) (39 N. E. Rep. 19-.') 875
Harding v. Boston (Mass.) (39 N. E. Rep 411).. 660
V. Field (Sup.) (37 N. Y. Supp. 399) . . 42
V Hart (N. C.) (24 S E. Rep. 668) ... 348
Hargrave v. Conroy (19 N J. Eq. 281 [1868])... 677
Harland v, Lillienthal (.53 N. Y. 438 [1873]) . . 883
Harlem Gas Co v. New York (33 N Y. 399), 163, 164
Harlev v. Buffalo C. Manfg Co. (N. Y. App.)
(36 isr. E. Rep. 81-3) 885
Harmer v. Cornelius (5 C B. [N. S.] 236. 28 L.
J. C. P. 85 [1858]). . .256, 806, 827, 828, 831, 834, 838
Harmon v. Harmon (Cir . Ct.) (51 Fed. Rep. 1 1 3). 25
Harmony v. Bingham (1 Dur. 210, 12 N. Y. 99).- 678
Harper v. Jonesboro (Ga.) (22 S. E. Rep. 139). . 76
Harriman, The (9 Wallace 161) 669
Harrington v. Gies (45 Mich. 374) 809
V. Kfinsas C. C Ry. Co. (1 Mo App.
135) 105
V. Victoria Dock Co (L. R. 3 Q.
B. D. 549, 39 L. T. Rep. 120
[1878]) 514
Harris v. Baker (4 Maule & S. 27) 853
V. Kellev (Pa.) (I3 Arl.Rep. 523 [1888]).. 619
V. McNamara (Ala.) (12 So Rep. 103).
663, 667
Harris Co. v. Byrne (67 Ind. 21) .380
Harrison v. Collins (86 Pa. St. 153) 654, 6.55, 6H0
V. Trickett (.57 111. App. 515) 675
V. Wright (13 East 343) 315, 324
Hart V. Hart (22 Barb. 606) 340
V. Kennedy (N. J.) (20 Atl. Rep. 29 [1890]),
365, 493, 531
V. Launman (29 Barb. [N. Y.] 410).
69. 131. 395, 463, 595
V. Ryan (6 N. Y. Supp. 921 [1889]) 667
V. Thompson (Sup.) (41 N. Y. Supp. 909), 124
Hartford, etc., Co. v. Brush (42 Vt. .52S) 340
Hartford F. L Co. v. Bonner M. Co. (C. C. A.)
(56 Fed. Rep. 378),
428, 429, 436, 531
V. Chicago, M. & St. P. Ry.
Co. (CO (62 Fed. Rep.
904) 58
Hartford v. Hartford Elec. Lt. Co. (65 Conn.
324) 164
Hartley v. Murtha (Sup.) (39 N. Y. Supp. 212). 413
Hartupee v. Pittsburgh (97 Pa. St. 107 [1881]),
388, 413. 415, 428, 429, 439, 446. 468, 482. 514. 699. 701
Hartweli v. Mut. Life Ins Co. (50 Hun 497
[1888]) 381
Harvester etc., Works v Glens Falls Ins. Co.
(Cal.) (33 Pac Rep, 633) 531
Harvey v. Lawrence (Eng.) (15 L. T. Rep. .571
[1867]) 446
V. Morev (Colo. Sup.) (45 Pac. Rep.
383f 719
V. United States (113 U. S. 243, 8 Ct. of
CI. .501) 219, 877-
Hasbrouck v. Milwaukee (21 Wis. 217) 56J»
liv
TABLE OF CASES.
Hasbrouck v. Winkler (48 N. J. Law 431) 5til
Haskell v. Bartlett (34 Cal 281) 135
V. Blair (3 Cush. [JIass.] 534) 13
V. Cornish (13 Cal 47 [1859]) 20,32
Hass V. Philadelphia, etc, Steamship Co. (88
Penu St. 2b9) 654
Hastetter v. Park (13? U. S. 30) 623
Hathaway v. Hagan (Vt.) (8 Atl Rep 678
[1887]) 488
V. Lynn (Wis.) (43 N. W. Rep. 956). 317
Hattin v. Chase (88 Me. 237) 256, 417
Haughery ■y.-Thiberge (24 La Ann. 44J). . . .326, 670
Havens v. American Fire Ins. Co. (Ind. App.)
(39 N E. Rep. 40) 96
V. Donahue (Cal.) (43 Pac Rep. 9Q-4),
812, 849a
Haver v. Teimey (38 Iowa 80 [1875]) 891
Haviland v. Halstead (34 N. Y. 643) 669
Hawes v. Sternheim (57 111. App. 126) 233
Hawkins v. Ball (18 B. Mour. 816) 678
V. Graham (149 iAl;.ss. 284) 340
'■ V. Thomas (Ind App.) (29 N. E. Rep.
157) 892a
V. United States (96 U. S. 689 [1877]).
52, 586
Hawley v. Corey (Utah) (33 Pac. Rep. 695)
693. 694, 696
Haws V. St. Paul F. & M. Ins. Co. (130 Pa. St.
Uii [1889]) 232
Hawthorne v. Newcastle, etc., R. Co. (3 Q. B.
' O'J'O
r34).
Hay V. Cohoes Co. (2 N. Y. 159)
V. Holt (10 Norris [Pa.] 88)
Hayden v. Cook (34 Neb. 670, 52 N. W. Rep.
165) 20, 21,
V. Madison (7 Me. 76) 691. 698,
Haydenville Mfg. Co. v. Art Inst. (111.) (89 Fed.
Rep. 484 [1889]) 324,
Hayes V. Gross (Sup.) (40 N. Y. Supp. 1098)...
Haynes v. McDermott (11 Cent. L. J. 378)
V Second Barptist Church (88 Mo. 285
[1885]) 572, 574. 621, 674, 676,
Haysler v. Owen (61 Mo. 270 [1875]) 702.
Hayward v. Leonard (7 Pick. [Mass.] 181
[1828]) 238. 442. 697, 701,
Hazard v. Griswold (21 Fed. Rep. 178)
Hazeltine v. Smith (3 Vt 535)
Head v. Hargrave (105 U. S. 45)
Heal V. Cooper (8 Me. 32)
Heatwale v. Gorrell (Kans.) (12 Pac. Rep. 135
[1?87])
Heavilon v. Kramer (81 Ind. 241)
Heokman v. Pinkney (81 N. Y. 211 [1880]),
442, 697, 700, 701,
Heeg V. Licht (80 N. Y 579)
Heene v. Meyer (61 N. Y. 171)
Heffernian v. Benkard (1 Robt. [N. Y.] 432
[1^63])
Heffner v. Brownell (31 N. W. Rep. 947 [1887]).
Heidleburgh v. St. Francis Co. (Mo.) (12 S. W.
Rep. 914 [1889]) 139,
Heine v. Appleton (4 Blatchf. [U. S.] 125)
V. Meyer (61 N. Y. 171 [1874]). . .439, 682,
Helfenstein v. Medart (Mo. Supp.) (36 S. W.
868) 883, 888,
Hellman v. Schneider (75 111. 422 [1874]) ...'....
V. Shoulters (Cal.) (44 Pac.Rep. 915) 40,
Hell wig V. Blumenherg (7 N. Y. Supp. 746)
Heiphensteine v. Hartig (Ind. App.) (31 N. E.
845) 144,
Heman Const. Co. v. Loevy (2 Mo. App. Rep.
1123)
Hemminger v. Western Assur. Co. (Mich.) (.54
N. W. Rep. 949). .-.
Henderson Bridge Co. v. McGrath (134 U. S.
260)
V. O'Connor (88 Ky.
303. 11 S. W. Rep.
18 [1899]),
27", 304, 389. 428,
587. 720, 724, 726,
Henderson v. City of Louisville (Ky.) (4 S. W.
Rep. 187 [1^87]) 382.
V. United States (Ct of Claims.
Dec Term, 1868)
643
678
796
703
589
676
880
724
703
703
794
483
889
625
317
703
643
689
664
30
143
821
690
891
257
144
679
580
555
690
94
739
587
51
Hendricks v. Isaacs (117 N. Y. 411 [1889]) 26
Heudrie v. Canadian B. C. (49 Mich 401) 739-
Henkle v. Pape (L. R. 6 Ex 7) 90-
Hennegan v. United Srates (17 Ct of CI. 273) . 417
Hennesey v. Farreil (1 Cush 268 [184St]).31-9, 728, 730
Henricus v. Englert (N. Y App.) (33 N E. Rep.
550) 2»
Henry v. Davis (123 Mass. 345). 316
V. Wells (Ark.) (8 S W . Rep. 637) 105
Hepburn v. Leather (50 L T. 600) 706
Herman v. City of E. St. Lou is (58 111 App.
166).... 704
Hermann v. Littlefiela (Cal.) (42 Pac. Rep.
448) ■ . 105,520
V. State (11 Ohio Cir. Ct Rep. 503,
41 N. W. Rep. 171) 15.5,892
Herndon v. Lewis (Tenn.) (86 S. W. Rep. 953). 11»
Heron v. Davis (8 Bosw, 336) 340
Herrick v. Belknap (27 Vt. 673 [1854]).
415, 421, 426a, 435. 489, 486. 502, 505, 616
V. Vermont C. R. Co. (27 Vt, 673).
341,425,426, 552"
Herrington v. Lansingburgh (36 Hun 598
[178.5]) 666
Hession v. Wilmington (Del.) (27 Atl. Rep. 830) 891
Hewes v. Andrews (Colo.) (20 Pac Rep. 338
[1889]) 31
Hewett V. Lumber Co. (77 Wis. C48)„ 627
Hewitt V. Eisenbart (Neb.) (.55 N. W. Rep. 252). 827
Hewlett V. Alexander (87 Ala. 193, 6 So. Rep.
49 [1889]) 720, 728
Hexamer v. Webb (101 N. Y. 377 [1886]).653, 654, 65&
Hexter v. Knox (39 N. Y. Super. Ct. 109) 326
Hicks V. Citizens Ry. Co. (Mo.) (27 S. W. Rep.
542) 887
V. Stevens (111.) (11 N. E. Rep. 241 [1887]) 12»
Hickock V. Plattsburgh (16 N. Y. 161) 666
Hide V. Whitehouse (7 East 5.=i8 [1806]) 215
Higert v. University (53 Ind. 326 [1867]) &i
Higgins V. Lee (16 111. 495 [1855]),
276, 277, 414, 41.5, 697
V. Reynolds (31 N. Y. 156) 266
Highland Co. v. Rhoades (26 Ohio St, 411),
. 183, 188, 797
Highton V. Dessau (Com. PI.) (19 N. Y. Supp.
395) 622, 688, 701
Hildebrand v Fogle (20 Ohio 147) 12a
Hill V. Blake (97 N. Y. 216) 130
V. Bush (19 Ark. 522 1 90
V. Featherstonhaugh (7 Blng. 569) 701
V. Hovey, et al. (26 Vt. 109 [1853]) 687, 689
V Ins. Co. (10 Hun 26 [1877]) 612
V. Miller (76 N. Y. 32 [1879]) 30, 232
V Smith (34 Vt. 535) 69, 56i, 574
V So. Staffordshire Ry. Co. (11 Jurist. [N.
S.] 192 [1865]).341, 343, 865, 377, .509, 511 .567
V. Thompson (8 Taunton .39.5) 823
V. Witmer (2 Phila, [Pa.] 72) 20
Hilliai-d v. Richardson (3 Gray [Mass.] 349
[1855]) 654, 662, 663, 664
Hills V. Rix (Minn.) (46 N, W. Rep. 297) , 560
Hillyard v. Crabtree (11 Tex. 268) 237
Hilm V. Wilson (4 Mo. 41) 703
Hilton V. Granville (9 Q. B. 701) 643
Hindrey v. Williams (Colo.) (12 Pac. Rep. 436
[1887]") 670
Hinkle v. San Francisco, etc., R. Co. (55 Cal.
627) 569
Hoag V. Hillemeier (N. Y.) (24 N. E. Rep. 807
[1890^) 219
Hoagland u. Moore '(2 Black f.'[Tnd.'] 167)! '.'.'.'.'.'. 439
Hobart v. Detroit (17 Mich. 246) 163
Hobbittv. Lond. & N. W. R. Co. (4 Exch. 254),
654, 667
Hobbs V. Manhattan Ins. Co. (.55 Me. 421). . .86. 344
V. McLean (117 U. S. 567 [1886]) 70, 293
V.Texas, etc., R Co. [Ark] (55 S. W.
Rep 586 [1886]).. = 1.55
Hobson V. Cow lev (27 L. J. Exc 20.5) 804
Hodges V. Fries (Fla.) (15 So. Rep. 682) 603
HofFa V. Person (1 Pa. Super. Ct 357) 862
Hofflin V. Moss. (C. C. A.) (67 Fed. Rep. 440). ., 419
Hoffman v. Board (Mont.) (44 Pac. Rep. 978). 177
V. Gallaher (6 Daly 42) 340
Hogan V. Burton (Sup.) (7 N. Y. Supp. 722) . . 564
TABLE OF CASES.
w
Hogg V. Emerson (6 How. U. S. 437) 824
Hoggatt V. Bigley (6. Humph. [Tenn.] 236) .... 845
Hohenzollern Co. v. London L'orp'n (54 L T
Rep. .^196 [1886]) 369
Holeonib v Danby (51 Vt. 428) 59
Holiday v. Petiei-son (5 Oregon 177 [1874]). . . . 84
Hollenoeck v. Rowley (8 Allen 473 [1864]) 880
HoUiday v. St Leonard (11 Com. B. [N. S.]
19-^) 852, 853
Hollis V. Chapman (36 Tex 1) 676
Holiister v. Mott (N. Y. App.) (29 N. E. Rep.
1 1 03) 689. 699
Holloway v. Friek (Pa.) (24 Atl. Rep. 201) 567
Holme V. Guppy (3 M. & W. 387) 326, 670
Holmes v. Avoudale (11 Ohio Cir. Ct R 430).. 44
V. Calhonn County (Iowa) (65 N W.
Rep 145) 859a
V. Donohue (C. C.) (77 Fed. Rep 179).. 816
V. Doane (9 Cush. 135) 69, 563
V. Higgins (1 B. & Caldwell 74 [1822]).. 49
V. Oil Co (138 Pa. St. 546. 21 Atl. Rep.
231 [1891]) 505, 699, 700, 701, 703
V. Peck, (1 R. 1.242) 827
V. Richie (56 Cal. 307) 412
V. Ricket (56 Cal . 307 [1880]) 345
V. Samuel (15 111. 412) 625
V. Shands (26 Miss. 639) 799
V. So. Pac. C. Ry. Co. (Cal.) (31 Pac.
Rep. 834)... 627
Homan v. Stanley (66 PA. St. 464) 641, 644
V. Steele (18 Neb. 652, 26 N. W. Rep.
472 [1886]) 62, 326, 575, 726
Homebank v. Drumgooie (109 N. Y. 63) 326
Home Fire Ins, Co. v. Kennedy (Neb.) (66 N.
W. Rep. 278) 1144
Home Life Ins. v. Pierce (75 111. 426) 315, 318
Hommersham v. Waterworks (6 Exch. 137
[1851]) 545, 553, 558
Hood V. Raines (19 Tex. 400) 689
Hooker v. Williamson (60 Tex. 524) 483
Hoolev. Kinkead (16 Nev. 217) 172, 173, 176
Hooper v. S. M. R Co (69 Ala. .536) 315
V. Webb (27 Minn. 485) 237, 238, 239
Hopkins v. Gilman (22 Wis. 476 [1868]) 348, 3.54
V. Hinkley (61 Md 584) 65, 90
Hopper, Re (L. R. 2 Q B. 367) 838
Home V. Niver (Mass.) (46 N. E Rep. 393) 96
Horner v. Nicholson (56 Mo. 220) 243
V. Watson (79 Pa. St. 243 [1876]). ...615, 643
Horton v McMurtry (5 Hurst & N. 667) 804
V. Sayer (4"H. & N. 643 [1859]), (5 Jur.
[N. S.]989) 344, 345
Hosmer v. McDonald (Wis.) (49 N. W. Rep. 115
[1891]) 580
V. Sheldon School Dist. (N. D.) (.59 N.
W. Rep. 103.5) 141
Hostetter v. City of Pittsburg (107 Pa. St. 419
[1884]) 428, 514
Hot Springs Ry. Co. v. Maher (48 Ark. 522),
428. 429, 430, 445
Hough V. Manzanos (4 Exch. Div. 104) 30
Houlton V. Dunn (Minn.) (61 N. W. Rep. 898).. 73
V. Nichol (Wis.) (67 N. W. Rep. 715) . . 73
Houston V. Braden (Tex. Civ. App.) (37 S. W.
Rep. 467) 20
H. & T. C. Ry. Co. v. Fowler (56 Tex. 452
[1882]) 246
Houston, etc., R. Co. v. Trentem (63 Tex. 442),
371, 545
Houtton V. Warren (1 M. & W. 475) 618
Hovey V. E. Providence (R. I.) (20 Atl. Rep.
205) 766
V. Ten Broeck (3 Roberts 316) 863
V, Wayndotte Co. (Kans.) (44 Pac. Rep.
17) 143
Howard v. Alleghany Val. R. Co. (69 Pa. St.
489 [1871]) 415, 428, 445
V. Gobel (62 111. App. 497) 569, 809
V. Grover (28 Me. 97) 827
V. Indus. School (78 Me. 231 [1886]),
90, 182, 183, 555
V. Oshkosh (.33 Wis. .309 [187.3]) 40, 45
V. Pensacola & A. R. Co. (24 Fla. 560,
5 So. Rep. 3.56) .210, 545, 566
V. Pepper (136 Mass. 28) 123
Howard v. Russell (12 S. W. Rep. 525) 880
V. W. & S. R. Co. (Md.) (1 Gill 311),
573, 574
Howard Co. v. Baker (Mo.) (924 S. W. Rep.
200) 21
Howe V. Huntington (15 Me. 350) 310
Howell V. Bowman (Ala.) (10 So. Rep. 640).... 877
V. Gould (2 Abb. App. Dec. [N Y.] 418). 682
V. Howell (26 111. 460) 487
V, Knickerbocker L. Ins. Co. (44 N. Y.
276) 669
V. Young (5 B. & C. 2.59) 121
Howland v. Oakland St. Ry. Co. (Cal.) (42 Pac.
Rep. 983). 883
Howlett V. Directors (5 Ohio St. 235 [1856]) 176
V Tarte (10 C. B. [N. S.] 826) 469
Hubbard v. Great Falls M. Co. (Me.) (12 Atl.
Rep. 878 [1888]) 530
V. Sandusky (9 Ohio Cir. Cf. Rep.
6.38) .■ 171, 172, 173
V. Thompson (25 Fed. Rep. 188 [1885]). 89
Hubert v. Aitkin (N. Y.) (15 Daly 2.87 [1889]),
830, 887, 838. 840, 862
Huckestein v. Kaufman (Pa.) (33 Atl. Rep.
1028) 429
V. Kelly & Jones Co. (Pa.) (21 Atl.
Rep. 78 [1891], s. c. 25 Atl.
Rep. 747, 139 Pa. St. 201, 152
Pa . St. 631 ) 1 87, 826, 475, 585
V. Nunnery Hill Incline P. Co.
(Pa. Sup.) (33 Atl. Rep. 1108). 582
Hudson V. Feige (.58 Mich. 149) 682
V, McCartney (33 Wis 331 [1873]),
2.58,413, 415,428, 433
V. Temple (29 Beav. .536) 311
Huff V. Hall (Midi.) (23 N. W. Rep. 8>S 107
Hughes V. Brabinder (Wash.)(38 Pac. Rep. 209). 414
V. Clyde (41 Ohio St. 3:i9)...90, 97, 155, 188
V. Foigerson (96 Ala. 346) 862
V. Lenny (5 M. & W, 183) 674
V. Muscatine Co. (44 Iowa (,72) 886
V. Percivai (Eng.) (L. R. 3 App.- Cas.
443 [1883]) 641a, 643, 664
V. Railroad Co. (39 Ohio St. 461)... 664, 667
Hull V. Ruggles (56 N. Y. 424) 75
Hulle V. Heightman (2 East. 145) 683
Hulse V. Bonsack Mach. Co. (C. C. A.) (65 Fed.
Rep. 864) ; 66. 819 823
Hulton Bros. v. Gordon (23 N. Y. Supp. 770).. 324
Hume V. United States (132 U. S. Rep. 406)... 33, 35
Hummel v. Stern (Super.) (36 N. Y.Supp. 44.3). 340
Hummer v. Lockwood (3 G. Gr. [la.] 90)... 572, 577
Humpey v. Dale (7 El. & Bl. 266) 627
Humphrey v. Jones (71 Mo. 62 [1879]) 36, 855
V. Jones (5 Exch. 952) 16
Humpton v. Unterkircher (Iowa) (66 N. W.
Rep. 776) 654
Hunt V. Bishop (8 Exch. 675 [1853]) 438
V. Elliott (77 Cal. 588, 20 Pac. Rep. 132
[1889]) 703
V. Highman (la.) (30 N. W. Rep. 709
[1886]) 95
V. Lowell Gas Lt. Co. (8 Allen 169) 886
V. Oregon Pac. Ry. Co. (36 Fed. Rep.
481 [1888]) 695, 704
V. So. Eastern R. Co. (45 L. J. C. P. Div.
87) 273
V. The Penna. R. Co. (51 Pa. St. 475
[1866]) 257, 633, 644, 666
Hunter v. Hunter (17 Barb. 26) 720
V. New York, O. & W. Ry. (N, Y.) (23
N. E. Rep. 9) 892a
V. Pfeiffer (108 Inn. 197 [1885]) 82, 148
V. Walter (N. Y. App ) (29 N. E. Rep,
145, 12 N. Y. Supp. 60) 686, 690
Huntsville, etc., Ry. Co. v. Corpening (Ala.) (12
So. Rep. 295)...." 491
Hurd V. Johnson Inv. Co. (34 N. Y. Supp. 91.5).. 762
Hurdle v. Stallings (109 N. C. 6, 13 S. E. Rep.
720 [1891]) 486, 499
Hurley V. Brooklyn (8 N. Y. Supp. 98) 587
Hurst V. Litchfield (39 N. Y. 377 [1868]). . . . 407, 411
Huston V. McArthur (7 Ohio 70) 615
Hutchins v.Webster (Mass.) (43 N. E. Rep. 186). 629
V. Weildin (114 Ind. 80 [1887]) 87
Ij^i
TABLE OF CASES.
Hutchinson v. CuUum (23 Ala. 622) 572
V. EatOD (13 Q. B. D. 861) 30
V Gt. T. R. Co. (59 N. H. 487) 272
V. New Sharon C. V. & E. Ry. Co.
(63 Iowa 727 [1884]) 726
Huthsing v. Bausquet (12 The Reporter 225).. . 32
Hyde v. Grisbi- (11 La. 240) 682
V. Wrench (:^ Beavan 334) 96
Hyde Park Village v. Carton (132 111. 100) 157
Hveroniinus v. Allison (52 Mo. 102) 428
Hyland v. Giddings (11 Gray 2:32) 575
Hynes v. McDermott (N. Y.) (22 Alb. L. J. 367
[1880]) 880
V. Wright (62 Conn 323) 89
I.
laege v. Bossieux (15 Gratt. 83) 468
Ibers V. O'Donneh (25 Mo*App 120) 703
Ingraham v. Whitmore (75 111. 24 [1874]) 475
Iliiuoii Cent. R. R v. Reaa (37 III 484) 864
Ills Ed. AssociatioDV.Strander(7&Ills. [1876]). 618
Illinois Inst v. Piatt (5 111. App. 567) 545, 565
III. Silver M. & M. Co. v. Reft (N. M.) (34 Pae.
Rep . 544) 887
Irabof V. House (Neb.) (5b N W Rep 1032).... 691
Indiana B. & W. Ry. Co. v. Adamson (114 Ind.
28-2 [1887]. 15 N E. Rep. 5 [188S|),
257. 600. 678. 849a
Indiana Cent. R. R., The, v. Mundy (2 Itid. 48). . 864
Ind. Nat. Gas. Co. t?. Kibby (Ind.) (35 N. E
Rep 392) 796
Indianapolis v. McAvoy (86 Ind. 587) 65
V. Patterson (83 Ind. 1.57) 426
V. Wann (Ind.) (42 N. E. Rep. 901). 141
Indianapolis Water Co. v. American Straw -
board Co (C C.) (75 Fed. Rep. 972) 859a
Indianola v. G. W. T & P. Ry. (5b Tex 594
[1882]) 318
Ingie v. Jones (2 Wall. [U. S.] 1) 674
Ingraham v. Whitmore (75 III. 24 [1874])
474 493 494
Ink V. Duluth (Minn.) (59 N. W. Rep. 960) 765
Insley v. Shepard (31 Fed. Rep. 869 [1887]).
158, 171. 175
Insurance Co v Marse (20 Wall 445) .86, 405
V. Tobin (32 Ohio St 96) 894
V. Wilson (2Md.241) 610
Internationa! Dock Co. v. United States (60
Fed. Rep. 523) 629
International & G. N. R. Co. v. Startz (Tex.)
(2-: S. W\ 759) 125
Interstate etc. Co. v Phila. (Pa ) (30 Atl. Rep.
383} ,. 146, 172, 176
Iowa Economic Heater Co. v. American, etc.,
Co (32 Fed. Rep. 73.5) 129
Irving V Morrison (27 C. P. Up. Can. 242)
616. 814 838
IrwiD V. Locke (Colo.) (3b Pac Rep. 898) 66
V Schultz (46 Pa St. 74 [1863]) 412. 575
Isaacs V. Smith (55 N. Y. Super Ct. 446 [1888]). 123
Isbeli V. Lewis*(.\la.) (13 So. Rep. 335). 609
Ittner v. Huglies (Mo. Sup.) (84 S. W. Rep.
1110) 16
V. St. Louis Exp. (97 Mo. .562) 626
Ives V. Smith, (8 N. Y Supp. 46) 8l
Izard V Kimmel (Neb.) (41 N W. Rep. 1068
[l8o9j) 69, 574
Jacksoc V Ambler (14 Johns. R. 96 [1817]),
479. 532
V Barry R. Co. (9 Times L. R. 90) 511
V. Bims (N. Y.) (9 The Reporter 751). . 795
V. Carson (Mass.) (35 N. E. Rep. 483).. 693
V. Cleveland (19 Wis. 400). .. .318, 407, 731
V. Hathaway (15 Johns. 452) 266
V. N. Wales Ry Co. (1 Hall & T. 75,
s. c 6 Ry. Cas. 112 [1848]),
38 183 188
V. Reeves (3 Pai. [N. Y.] 293). . .'. .'.... .' 230
V.Shaw' (29 Cal. 267 [186.5]) 70
V Walker (5 Hiii (N. Y.) 127 [1843]) . . 76
Jackson A. I. W^ks. v. Rous5 (15 N. Y. Supp.
1 37) 558
Jackson. City of, v. Boone (Ga.) (20 S. E. Rep
46) 875
Jackson Iron Co. v Negauuee C. Co. (C. C
A.) (65 Fed Rep. 298) 103
Jacksonville, etc., R. Co. v. Woodsworth (20
Fla. 368) (8 So. Rep. 177 [1890]) 324. 724
Jacob V. Day (Cal.) (44 Pac Rep. 243).. 61^
Jacobus V. Mut. B. Ins. Co. (12 C. E. Green 604).
326, 629
V St. Paul R. Co. (20 Minn. 110) 864
Jacquot V. Bourra (7 Dowl. 348) 80:j
Jagau V. Goetz (Com. PI.) (32 N. Y. Supp 144). 105
Jager v. Adauis (123 Mass. 26) 641
Jameson v. McDaniei (25 Miss. 63) 669
V. M'Innes (15 Session Cases 17
[1887]) 784
Jaquith v. Hudson (5 Mich. 123) 317
Jay V. Harrison (L. R. 14 Ch. D. 19 [1880]) 273
V. S. E Rv. Co (Weekly Notes. 1873, p. 4). 731
Jeans v. Bolton (Super.) (24 N. Y. Supp. OMi). 569
Jefferson v. Church of St. M. (Minn.) (43 N.W.
Rep. 74) 756
V, Jameson & M. Co. (111.) (46 N. E.
Rep. 272) 64.i
Jefferson City v. Whipple (71 Mo. 519 [1880]).. lib
Jeffries v. Williams (5 Ex. 792) 643
Jemmison v Gray (29 Iowa 537) 317, 402, 567
Jenckes v. Jenckes (Ind. Sup.) (44 N. E. Rep.
632) 16
Jenkins jy Bennett (S. C.) g8S. E. Rep. 929).. 12
V. Betham (15 C. B. 188) 806
, V. Stetler (Ind.) (2 N. E. Rep. 7 [1889]). 40
Jenks V. Robertson (12 Alb. L. J. 57) 439
Jennings v. Camp (13 Johns. (N. Y.) 94) ..699, 70:j
V. Brighton Bd. (4 l>e G. J. & S. 735). 724
V. Gray (29 Iowa 537) 430
V. Wilier (Tex.) (32 S.W. Rep. 24).
700, 703
Jennings County Commrs. v. Verbarg (63 Ind
107) 147, 148
Jensen v Barbour (Mont.) (39 Pac. Rep. 906).. 6.57
Jeob V. McKiernan (Moody & Malk 340) 428
Jewel V. Schroeppel (4 Cow. .564) 700
Jewelers' Merc. Agcv. v. Jewelers' W. Pub.
Co. (32 N. Y. Supp. 41) 816. 818
Jilson V. Gilbert (26 Wis 637) 103
Johnson v. Burns (W. Va.) (20 S. E Rep 680). 615
V.Coles (21 Minn. 108 [1874]) 883
V. De Peyster (50 N. Y. 666 [1872j),
388,412.011,702
V. Dist. of Col. (U S. Sup. Ct,) (22
Reptr. 7 [1886]) 24?
V. Duer (Mo. 21 S. W. Rep. 800) ... .76, 172
V. Freeman (Pa.) (28 Atl. Rep. 780). .. 256
V. Gorman (30 Ga. 612) . ; 804
V. Hunt (1 1 Wend. [N. Y.] 137) 271
V. Martin (1 1 La. Ann. 27) 840
V. Sanitary Dist. of Chicago (.58 III.
App 306, 45 N. E Rep. 213) . .176, 177
V. S. & B Ry. Co. (3 D G. M & G.
914) 4.38
V. Tyng (Supp.) (37 N Y. Supp. 516). . 686
V. Varian (108 N. Y. 645 [1888]),
369.411,596
V. Weston (1 F. & F. 693 [I860]) 565
V. White (Tex.) (27 S W. Rep. 174
[1894]) 427,428,692
Johnston v. B*^rry (3 111. App. 256) 558
V. Di.st. of Coluin. (U. S. Sup. Ct.)
(22 Reptr. 7 [1886]) 247
V. Ewing (35 III. 578) 629
V. Kershaw (L. R. 2 Ex 82) 553
V. Richmond & D. R. Co. (Ga.) (2.' S.
E. Rep. 694) 876
Joint School Dist. v. Reid (Wis.) (51 N. W. 1089) 46
Joliet V. Harnood (86 III. 110) 643
Joliet Mfg Co. V. Dice (109 111. 649) 823
Jones V. Anderson (20 So. Rep 911 [Ala.] [1887]) 678
V. Brown (54 Iowa 74) 844, 845
V. Frazier (1 Hawks 379) 436
V. Gilchrist (Tex.) (27 S. W. Rep. 890).
27(3, 390, 557, 5.58
V. Grahaiii, etc., Co. (51 Mich. 539) 808
TABLE OF CASES.
ivii
Jones r. Jones (17 L. J. Q. B. 170) 485
V. Judd (4 Comstouk [N. Y.] 4U [18501),
42-^. 440. 577, 583. 682, 686. 689. 690. 692, 700
V. Pouch (41 Ohio at. 146 [1884]) 103
V. Reg. (7 Can. Sup. Ct. 570) 379, 414
V. Risley (Tex.) {32 S. W. Rep. 1027)
66, 122, 390
V. Sherman (Neb.) (51 N. W. Rep. 1036
[189-.']) 126, 796
V. St. John's College (L. R. 6 Q. B. 115
[1871]) 321, 324 416 573, 585
V. Tucker (41 N. H. '546 [1860]) . . .882, 884. 891
V. Vestry of Church (19 Fed. Rep. [1883]) 835
V. Vroom (Colo.) (45 Fac. Rep. 234) 833
u, Wagner (66 Pa. St. 430 [1870]) 615
V. Wick (Com. PI. N. Y.) (30 N. Y. Supp.
924) 265
V. Woodbury (11 B. Monroe [Ky.] J67
[1850]) 566, 567, 572, 583
Jonte V. Gill (Tenn. Ch. App.) (39 S. W. Rep.
750) 762
Jordan v. Elliott (Pa.) (15 Cent. L. J. 232 [1882]) 28
V. Meredith (3 Yeates 318 [1801]) 622
Joseph V. Richardson (2 Pa. Super. Ct. 208) ... 121
Joske V. Pleasants (Tex. Civ App.) (39 S. W.
Rep. 586 [1897]) 691, 695, 885
Jourdan v. Long Island R. Co. (115 New York
380 [1889]) 38
Judd & Co. V. Cushiiig (50 Hun 181 [1888]) 643
Judahv Zimmerman (22 In d. 388) 20.576, 580
Judy V Louderman (Ohio) (29 N. E. Rep. 181).. 63
Juiliiard v. Chafifee (9^ N. Y. 529) ^ 69
Justices, The, tJ. Corf t (18 Ga. 473) 706
Justice V. Elwert (Oreg.) (43 Pac. Rep 649). .417, 682
K.
Kalman v. Baylis (17 Cal. 291) 561
Kane v. Fond du Lac (40 Wis. 495) 522
V. Ohio Stone Co. (39 Ohio St. 1 [1883]),
441, 442
V. Thuener (1 Mo. App. 725) 20
V. Wilson St. Co. (39 Ohio St. 1) 415
Kansas City, M. & B. R. Co. v. Phillips (Ala.)
(13 So. Rep. 65) 892a
Kansas City, etc., R. Co. v. Webb (Ala.) (11 So.
Rep. 888) 627, 887
Kansas C, Ft. S. & M. R. Co. v. Cook (Ark.) (21
S. W. Rep. 1060) 891
Kansas M'fg'e Co. v. Weyerhaeuser (Kan.) (29
Pac. Rep. 153 [1892]) 326
Kansas Pac, R. Co. v. Peavey (29 Kan. 169). .. . 864
Kansas R. Co. v. Smith (Ala.) (8 So. Rep. 43
[1890]) 880
Kansas Town Co. v. Argentine (Kans. App.)
(47 Pac. Rep. 542 [1897]) 1.54
Karr v. Peter (00 111. App. 209). 755
Katz V. Bedford (77 Cal. 319) (19 Pac. Rep. 523
[1889]) 417, 701
Kauffmann v. Cooper (Neb.) (65 N. W. Rep.
796) 17, 20, 22, 765
Kaufman v. Blaier (Cal.) (29 Pac. Rep. 481). . . . 885
Keane v. Cushing (15 Mo. App. 96) 135
Kearney v. Doyle (22 Mich. 294) 691
Keating V Kansas City (84 Mo. 415) 35,43, 44
Keeler v. Clifford (62 111. App. 64) (40 N. E.
Rep. 248) 340, 674, 686
Keenan v. People (.58 III. App. 241) 859a
Kehoe v. Rutherford (N. J.) (27 Atl. Rep. 912),
692. 694
Keim v. Lindley (N. J.) (30 Atl. Rep. 1063) 558
Keith V. Walker Iron & Coal Co. (Ga.) (7 S. E.
Rep. 106 [1888]) 644
Keller v. Blaisdell (1 Nev. 491) 796
V. Oberrich (30 N. W. Rep. 524 [1886]),
409 413
V. Syracuse (31 N. Y. Supp. 283>. ...442,' 443
Kelley v. Rowane (33 Mo. App. 440 [18891),
703, 690, 691
Kelly V. Baltimore (53 Md. 134) 178
V. Blnomingdale (N. Y. App.) (34 N. E.
Rep. 919) 731
V. Chicago(62Ili.279[1871])..171.172, 176, 178
V. Cohoes Knitting Co. (3'5 N. Y. Supp.
459) 658
Kelly V. Kellogg (79111. 477) 19
V. Lynchburg & D. R. Co. (N. C.) (15 S.
E. Rep. 200) 533
V. Mayor (11 N. Y. 432 [1854]), 645. 661, 666. 667
V. Palmer (Neb.) (60 N. W. Rep. 924). ... Ill
V. Perrault (Idaho) (48 Pac. Rep. 45
[1897]) 887
V. Public Schools of Muskegon (Mich.)
(68 N. W. Rep. 282) 402. 428
Kellog Bridge Co. v. Hamilton (110 U. S. 108). . 257
Kellogg V. Citizens' Ins. Co. (Wis.) (69 N. W.
Rep. 332) 801
Kelman v. Baylis (17 Cal. 291) 564
Kembler. Fairen (6 Bing. 141) 317, 318, 319
Kemp V. Rose (1 Giff. 258 [1860J),
428, 443. 510, 5ll, 514
Kendall Bank Note Co. v. Commrs. of Sink-
ing Fund (79 Va. 503) 439
Kendall v. Fry (74 Wis. 26) 706
V. Russell (5 Dana [Ky.] 501 [1837]).. . 620
Kendrick v. Tarel (26 Vt. 416 [1854]) 52j
Kent V. Cut Glass Co. (10 Ohio Cir. Ct. Rep.
629) 43
V. French (la.) (40 N. W Rep. 713 [1889]). 530
V. Humphreys (13 111. 573) 311, 321
Kennedy v. Hodges (Ga.) (25 S. E. Rep. 493). . . 74
V. Poor (Pa.) (25 Atl. Rep. 119, s. c.
151 Pa, St. 472) 445, 44C
Kennet Elec Lt. Co. v. Kennet Sq. (4 Pa. Dist.
Rep. 707) 42
Keogh V. Wilmington (4 Del. Ch. 491) 171
Keogh Mfg. Co. V. Eisenberg (Com. PI.) (27 N.
Y. Supp. 3.56) 324. 32G
Kerfoot v. Cromwell Mounn Co. (115 III. 502).. 555
Kerns v. O'Reilly (Leg. Int. [Aug. 31, 1866]).... 416
Keriv Philadelphia (8 Phila. [Pa.] 292) 171
Kessel v. O'Sullivan (60 111. App 548) 892a
Ketcham v. Cohn (Com. PI.) (22 N. Y. Supp.
181) 641a
V. Newman (N. Y. App.) (36 N. E.
Rep. 197) ; . . .275. 767
Ketchum v. Herrington (18 N. Y. Supp. 429
[189i]) 442, 702
V. Zeilsdorf (26 Wis. 514) 670
Kettle V. Harvey (21 Vt. 301) 674. 703
Keystone Brewing Co. v. Walker (Pa.) (11 Atl.
Rep. 650 [1888]) 488
Key West. City of, v. Baer (C. C. A.) (66 Fed.
Rep. 440) 271
Khron v. Brock (11 N. E. Rep. 748 [18S7]) 643
Kickland v. Mensha W. W. Co. (Wis.) (31 N.
W. Rep. 471) 107
Kidd V. McCormick (83 N. Y. 391 [1881]). ...703, 704
Kidwell V. The B & O. R. Co. (11 Graft. [Va.]
676 [1854]) 350, 354. 403, 423, 428, 431, .580
Kiehlberg v. United States (97 U. S. 398 [1878]),
429 443
Kilbourne v. Jennings (38 la. 533) .' 891
Kilburn v. Ingersol (C. C.) (67 Fed. Rep. 46). . . 818
Kile V. Yellowhead '(80 111. 208) 892a
Kilgore v. Northwest Tex. Baptist Ed. Soc.
(Tex.) (37 S. W. Rep. 473) 687
Kill V. Hollister (1 VVils. 129) 344, 407
Kilmorey v. Thackery (2 Bio. Ch. 5.5) 705
Kilviogtbn v. City of Superior (Wis.) (53 N. W.
Rep. 487) 163, 164
Kimball v. Hewitt (2 N. Y. Supp. 697 [1888]).16S, 181
Kimball & Co. v. Doggett (62 Id. App. 52h). ... 317
Kimberly v. Dick (L. R. 13 Eq. 1, 41 L. J Ch.
38 [1871])... 183, 371, 428, 443. 510. 511, 514, 553, 841
Kimmel v. Robinson (3 M. & W. 434) 7b
Kmg V. Duluth. M. & N. Ry. Co. (Mmn.) (63 N
W. Rep. 1105) 563
V. Des Moines (Iowa) (68 N. W. Rep. 70' ). 691
V. Hawkins (Ariz.) (16 Pac. Rep. 431
[1888]) 500
V. Inhabitants (2 Amer. & Eng. Ency.
Law 210) 876
V. Mahaska Co. (la.) (39 N. W. Rep. 636
[1888]) 46. 47, 730
V. New York, etc., R. R. Co. (66 N. Y. !8l,
72 N. Y. 607) 652, 654, 892
V. Warfield (8 Cent Rep. [Md.] 801) 340
V. WinantO (71 N. C. 469, also 73 N. C.
563) 76, 87
Iviii
TABLE OF CASES.
King Iron Bridge Co. v. St. Louis (43 Fed. Rep.
768 [1890]) 326, 396
Kingman & Co. v. Reiaemer (III.) (46 N. E.
Rep. 786 [1897J) 794
V. Shawley (1 Mo. App. Rep'r
281) 122
Kingsland v. Mayor, etc., of N. Y. (45 Hun [N.
Y.] 19i}) 125
Kingsley v. Brooklyn (78 N. Y. 200 [1879]),
44. 45, 47, 138, 142, 157, 171, 440, 568, 581, 583
Kingston v. Harding (2 Q B. 404 [1892]) 20
Kinney v. B. & O., etc.. Assn. (W. Va.) (14 S. E.
Rep. 8) .348
V. Cent. R. R of N. J., 34 N. J. Law
513) 864
Kinser v. Dewitt (Ind. App.) (34 N. E. Rep.
1014) 275
Kinsley v. Charnley (:^3 111. App. 553) 586
V. Crane (34 Pa, St. 146) 891
V. Monongahela Co. (W. Va.) (7 S. E.
Rep. 445 [1888]) 412
Kirby v. Lake Shore, etc., R. (120 U. S. 130) .... 119
Kircjilberg v. United Stales (97 U. S. 398) 428
Kirehinaii v. West & S. T. Ry. Co. (58 111. App.
515) 179
Kirk V. Bromley Union (2 Phill. 640),
473, 545. 552. 565
Kirk & Randall v. The E. & W. India Dock Co.
(12 App. Gas. 73B [1887]. 55 L. T. Rep. (N. S.)
245 [1886])... 95. 387, 402, 404, 428. 43C. 549, 595. 797
Kiikland v. Gates (25 Ala. 465) 681
Kii-tland v. Montgomery (1 Swan [Tenn.] 452). 828
V. Moore (1 Cent. Rep. 466) 414
Kistler v. The Ind. & St. L. R. Co. (88 Ind. 460
[1882]) 341, 344, 345, 402, 405, 421
Klaw V. Khrich (31 N. Y. Supp. 773) 808
Kleioe v. Catara (2 Gallison C. C. 61 [1814]),
43C. 486, 487, 491
Klepsch V. Donald (Wash.) (35 Pac. Rep. 621),
877, 878
Klix V. Nieman (Wis.) (22 N. W. Rep. 223) . ... 643
Knapp V. Swaney (56 Mich. 345 [1885]) 51,
756, 765, 766
Kncelan.l v. Furlong (20 Wis. 437) 135, 154
Kneii v. Egleston (140 Mass. 202 [1885]) 26
Knight V. Clark (N. J.) (2 Atl. Rep. 780 [1885]>. 32
V. Knight (Ind,) (30 N. E. Rep. 421
[1892]) 121
V. Norris (13 Miim. 473) 616. 814. 862
Knickerbocker v. Murphy (59 111. App. 39) 762
Knickerbocker Ice Co. v. Smith (Pa.) (23 Atl.
Rep. 563 [1892]) 408
Knorr v. Bates (Com. Plea;*) (33 N. Y. Supp.
691) 344
Knowles v. Crarapton (Conn.) (11 Atl. Rep. 593
[1888] 892
V. Penn. R. Co. (Pa.) (34 Atl. Rep. 974) 326
V. Saiidercock (Cal.) (40 Pac. Rep.
1047) 43
Knowlton v. Mickles (29 Barb. [N Y.] 465) 527
Knox's Estate (131 Pa. St. 220) -795
Kobs V. Minneapoli.-? (22 Minn. 1.59 [1875]) 248
Koch V. Milwaukee (Wis.) (62 N. W. Rep. 918).. 507
V. Williams (Wis.) (.52 N. W. Rep. 2,57). . . 106
Kocher v. Maybery (Tex.) (39 S. W. Rep. 604
[1897]) 691, 703
KoUock V. Parcher (52 Wis. 393) 629
Koon V. Greenman (7 Wend [N. Y.] 121)... 572, 691
Koplitz V. Powell (.56 Wis. 671) 803
Korf V. Lull (70 111. 420 [1873]) 428. 468, 496, 701
Kountz V. Flannagen (Sup.) (19 N. Y. Supp. 33). 90
Ktebs Mfg. Co. v. Brown (Ala.) (So. Rep. 659).. 837
Kretscn v Helin (45 Ind. 438) 135
Kruger v. Town of Palestine (20 Bradwell 420
[188.5]) 266
Kugelman v. Levy (24 N. Y. Supp. 5.59) 627
Kugler V. Wisemer. (20 Ohio 361) 684
Kuhls V. Laredo (Tex.) (27 S. W. Rep. 791) 45
Kumberger v. Congress Sp. Co. (Sup.) (40 N.
Y. Supp 396) 629
Kutts V. Pelby (20 Pick. [Mass.] 65 [1838]):. 811, 812
La Chicotte v. Richmond Ry. & Tel. Co. (Sup.)
(44 N. Y.Supp.75) 600
Lachman v. Irish (Sup.) (25 N. Y. Supp. 193)... Ill
Ladd V. Chotard (1 Ala. 366) 656
V. Grand IsJe (Vt.) (31 Atl. Rep. 34) 272
Lafferty v. Jelley (22 Ind. 471) . . 573
La Foucherie v. Knutzen (N. J.) (3:i Atl. Rep.
203) 220
Laidlaw v. Hastings Pier Co. (36 Law Times
Rep. 736) 445,446
Lake V. McElfatrick (Sup.) (19 N. Y. Supp. 494,
reversed in 139 N. Y. 349) 837
Lake Erie & W. R. Co. v. Mugg (Ind.) (31 N. E,
Rep. 564) 627
Lakeman v. Pollard (43 Me. 463) 678
Lake Shore & M. S. R. v. City of Chicago (111.)
(33 N.E. Rep. 602) 157,171
Lake Shore & M. S. Ry. Co. v. Richards (111.)
(3i N. E. Rep 402. 40 111. App. 560) 687
Lake Shore, etc., R. Co. v. Spanglar (44 Ohio
St. 471) [1887] 86,864
Lake Sup. Iron Co. v. Erickson (39 Mich. 492).. 665
Lake View v. MacRitchie (134 III. 203) 214
Lalande v. Aldrich (La.) (6 So. Rep. 28 [1889]). 803
Lamar Milling & Elevator Co. v. Craddock
(Colo. App.) (37 Pac. Rep. 950) 796
Lambv. Klaus (12 Amer. Law Reg. [N. S.] 199). 610
Lambard v. Pike (33 Me. 141) 861
Lambert v. Fuller (88 111 . 260) 2.37
V. Sanford (55 Conn. 437 [1887])... 812, 814
Lamar Milling & Elevator Co. v. Craddock
(Colo. App.) (37 Pac. Rep. 950) 90
Lamar Water Co. v. Lamar (Mo.) (26 S. W.
Rep. 1025) 44, 47
Lampley v. Scott (24 Miss. 533) 840
Lamprel v. Billericay Union (L. R. 3 Exch. 28:^),
478, 548, 549
Lanahan v. Heaver (Md.) (29 Atl. Rep. 1036). . . 689
Lancaster v. Barret (1 Pa. Sup. Ct. Rep. 9) 20
V. Conn. :92 Mo. 460) 629
V. Coim. Mut. L. Ins. Qo. (9v! Mo. 460,
s. c. 5 S. W. Rep. 23 [1887])..243, 244
Landiskowski v. Lark (Mich.) (66 N. W. Rep.
371) 4»
Langdon v. Northfield (Minn.) (44 N. W. Rep.
984 [1090]> 428, 704, 731
Lange v. Benedict (73 N. Y. .35) ^27
V. Johnson (Wis.) (57 N. W. Rep. 1109).. 565
Langford v. Sanger (35 Mo. 133 [1864]) 481
Langley v. Harmon (Mich.) (56 N. W. Rep. 761). 155
Lansing v. Dodd (45 N. J. Law 525) 315
Lantry v. City of New York (Sup.) (44 N. Y.
Supp. 874 [1897]) 744
Lantry v. Parks (8 Cow. 63) 699
Lapham v. Osborne (Nev.) (18 Pag. Rep. 881
[1888]) 99
Larson v. Met. St. R. Co. (110 Mo. 234, 19 S. W.
Rep. 316) 641a, 665, 667
Largey v. Bartlett (Mont.) (44 Pac. Rep. 962)... 514
Lara v. Greeley (20 Fla. 926) 720
Larrowe v. Lewis (44 Hun 226 [1687]) 627
Lathrop v. Ellsworth (15 N. Y. Supp. 873 [1891]),
445, 446
Lathrop v. Visitor Ptg. Co. (R. I.) (30 Atl. Rep.
964) 808-
Lauer v. Brown (.30 Barb. [N. Y.] 416) 577
Launman v. Younge(31 Pa. St. 306 [18.58]),
294, 370, 399, 400, 412, 74.5-
Launsen v. McCarty (45 Mo 106) 13
Lawall V. Rader (24 Pa. St. 283 [18.55]), 572, 574. .575
Lawing v. Rintles (97 N. C. 350) 675
Lawrence v. Samuels (City Ct ) (44 N. Y. Supp.
602) 895
V. Milwaukee, etc., R. Co. (Wis.) (.54
N. W. Rep. 797) 91. 96, 97
V. Saratoga Lake R Co. (36 Hun
467 [1885]) 706
V. Shaefer (Sup.) (42 N. Y. Supp.
(992 406
V. Unitea States (C. C.) (71 Fed. Rep.
228> IT
Lawson v Hogan (93 N. Y. 39) 325
V. Wallesly Local Bd. (11 Q B. Div.
229, and 52 L. J. Q. B, 309 [1882]),
375 .398, 412 595. 691, 704
Leach v. Beardslee (22 Conn 404 [185.3]) 6ia
V Harris (69 N. C. 532) 436
TABLE OF CASES.
lix
Learned v Bellowfe (8 Vt 79 [l83f]).. ^^ . . . . -
Leatherberry v Odeli (N. O (7 Fed Rep 642)
oUo oUo
Leave, v Porte' (5^^ Mo App 63C>
Leavers v. Ciearh (75 III 34? [18r4]K . . ... ....
Loavitt t Bangor & A. R Co (»Ie.) (36 Atl
Rep 99fc [1897]
V Dove..' (N. H.) (3'^ Ati Rep. 1.56)
V Windsor L & 1. Co (5<i Fed Rep.
43<>'
Leoanoc v. McCoj (Ind App.) (36 N E Rep.
5^;
Lebear.nt v.Uil (i Mo 4-^i
Li-c I Ash broc life (14 Mo. 379)^ . . . . .... • • • • • • •
V Bravtoc (R. I.: (2t Atl Rep. 5J5b). . . .54.^
z Gnffi u (1 B. & S -^T i) V vl^i'
7. fieumar. (Tex.) (3-- S. VV. Rep 93)... 88.,
V PatillC (4 Lei^l< 436) ■•••;v;-iV
LeL'bricU t Lyste (3 Watt* * ^^''^.^^Lt..^*'^^^'
Leecb V Caldwell (Leg Int Nov. 16 18fafc). ••
L.ecl. I» re (.50 N, Y. 400 [1873 )........ 174.
1 LittI (Minii.) (44 iN W . Rep 30'<)
(GO <01,
LecK i; St Lcuis etc R C.r (58 Ark 407) ...
Lf-et ^. Wilsoo Cii Cal 393 [I8bij)
LeOore v Jusuc^i (9 M.ss. 381 L.lBi;^]' -f b
Lefurgv ^. Sie\^art(Sup.)(23 N. Y Supp. 53.)
LtVf. V. Dui.lert v:> (80 Mo 5.=^b) ...
Ltsieoi;. HarlocU (U Q B D 105) 324
LehhTh C? V Rleokne^ (5 W ,!t S [PaJ 181).
Lt^leio u Meyer (Mich) (so N W. Rep.
Lc^p7ito. u.'Sargeni ('i^N' H 400 [li85.^])'.V m
LtiVitnisoorfer v Kind's Adn^x (7 Colo. 43b
Lelar.det;"Aldrici5"(La.^'(6 So Rep 28)
Lf^ii.a^ V WMllian.i (3? Ark 16b) ••••-,••■
Eennco v SmitL (14 Daly [N Y. ^ 520 [1888]^^^
Leominster v Fitcl.burg R Co (Mas?.) ('
Ltonart. i; CiVv of Brocklyt. (71 N Y 498) .
V House (15 Ga 473i -v.,
V Ke'ilei's Adm'r (Otic Sup.) (34 N
P: Rep. 6.5'j) •■■"„^w
L'-^< i.olQ V. S&lkey (8t II- 412). _^. . . .... ... 6-0
Li-L.t(.ornc V St Aul)vn (1 C <S E 486 [1885])
l^erandatt; Saisst (L B IC P,,152). ........ .
Leich V Sioux Citv Tiiiie Co. (la,; (60 ^ W
Le Ro -1; jair.i.soii {i Savv , [U S^ 269,. •_. . .
Lev.;fc. h Navieatio., Co (pi Air Dec 49^) .
Le>ki> i; Haseltiue (155 Pa S. 98 25-Atl Rep
cog j . '"'i
Leslie'i-! Leslie (52 N J. Eq 332. 24 Atl Rep
Lt-^.ie. "t^" Pedlgo (Va.'/ 0 S " E 'Rep. 703 . . . .
Leufr.e. t. Pa & De! Ry. (H Phila. [Pa.] 548
Levine t 'L'it.'cashirc Ins Co. (Mine ) (^^,^-
T.e. Bbfn ■;•• 491.
t Kottinan (Com Pi) (32 ^ \ Supp
V N Y^^ent « hVr'r Co (24*N.y.
Slpp 124) •■ -'^^
V Spe.-cet (Colo Sup ) (3b Pac. Rep
Lewi, v Bras^-(L"R SQ B D'667'[i87:])
9 i , 1 0-j . 1 84 ,
V Browninp (l.SO Mas.<* ,70 [.88'])
V Chirfigr, etc . R. Co (49 Fed R«-p
708-714). 3v^ .38.^. 4l5 428 432 43P
t Colirac ((^al.) (44 Pac Rep- lObl)
V G.'iHne' (N. Y.) (29 N. E. Rep. 81 re-
versing 14 N Y. Supp. 362). . . • .
V. Hoar (^5 Am Law Review 239 44 L
T 6b [18>*1]) 416, 42:. 439
V S.f.CH (2-? Mo App 119.131) 5i4
V T.iio-, (br Iowa 220 [18P4])....... • ••
.. \a.fe; (..• Hun [N Y.] 337).. 388. 564
Lowlstco S^,.M Co ^ Androscoggin W. P. Co
(Mt S.F'C: Ji.nori&<6i).......^.
ij).i.a. . ^ Wood-' (i VVatt= <t S. 2b.o)
Liidi. c S,.>..- (2 Sineoes & M 596)
Ligge t feOiitli (d Watts [Pa > 331) ...
43.1
RO'J
75h
124
240
580
64=)
575
703
509
675
891
428
506
428
17;;
70'J
144
814
257
188
514
32b
143
880
829
889
105
235
318
Lev J
.365
76o
428
1
805
549
665
129
135
664
18/
479
620
862
878
120
558
85
.S8
9g
58-
4j
8i
442
376
4^
701
892
80^
3H
702
695
324
795
662
405
44
Litrht. Heat & Water Co. v. Jackson (Miss.)
(19 So. Rep 771) 317. 68l
Lillienthal v City of Yonkers (Sup) (39 N Y.
Supp 1037) 183
Liijengren F. & L. Co. v. Mead (Minn.) (44 N
W Rep. 306) 122.681
Lilly V. Person (Pa.) (32 Atl. Rep. 23)
Linch V. Paris Lumber Co. (80 Tex. 23 14 S.
W Rep. 701 [1890], 15 S. W. Rep 20o [1891]),
227, 228 397, .399. 400 701 724 726, 891, 892
Lincoln v Little Rock G Co. (Ark.) (19 S. VV.
Rep 10.5bi 318
V. Schwartz (70 III. 134 [1873]),
442. 443, 479. 686 691
Linder v Carpenter (62 III 309 [1872]. also 13
111. App 568^ 84
Lindsay v^Gordon (13 Me. 60) 326, 701
V The City (2 Phila. 212 [1858]) 42
V. Rockwall County (Tex.) (30 S. W.
Rep 380) 168. 317
Lineman v Rollins (137 Mass. 123 [1884]). . 658. 665
Lineoski v Su.'jquehanna Coal Co. (Pa Sup.)
(27 All. Rep. 57t) ;.... 891
Lingenfelder v. W'. Brewery Co. (Mo.) (15 S.
W. Rep. 844 [1891]) . .- ^66
Linningdalev. Livingston (10 J. R 36)........ .00
Linnenhohi v. Winkeltneyer (54 Mo. App. 5r0). 681
Linsley V Lovely (26 Vt 123 [18.53]) 627
Linton V. First Nat. Bank (10 Fed. Rep. 894
[1882])
V Smith (8 Grav [Mass.] 147) 6.54.
Linville v. State (29 N E. Rep. 1129)
Little V City ot Portland (Ore.) (37 Pac Rep
V Gallu5"(Sup") (.38 n". y". Supp." 487 ;Voi4) 8l9
V Kerr (44 N J. 263 [1888], 14 All Rep
613) 33, 38
V. Mercer (9 Mo. 216). ..... . . . . : . ....... • 5.^
V Vanderbilt (N J.) (26 Atl Rep 102.o). 35
Littler u Jayne (124 111 123.16 N E Rep. 374
[l88o]i... .. ...43.1.39 143.15.5,157 100,161, 171
Little Rock; etc., Ry Co. r Alister (rk.) (A34 S. _
W. Rep. 82) 2^^
Littrel.v Wilcox (11 Mont 77) . •■■^■■'■- •••• iSx
Livingston Co. v Graves (32 Mo 479) 669 6.3
Llanueliv Railwav & Dock Co. v. London &
N W.Ry Co (20 W R 808) 408
Lioyo V Freshfield (2 C & P. 325) ....... • • • • •849a
Liova&Co V Krau,^e(Pa.)(23Atl.Rep 602). 762
Lobi. V. McClave (Tex.) (28 S. W Rep. 726 .. . 109
Locke V. Sioux City & P R. Co (46 la. 109) . 8hO
V Willinghau. (Ga.) (25 S E. Rep. 693). 148
Lockwood V. Barnes (3 Hib 128). • . . .... .... • • • 103
t New York (2 Hilt. [NY.] 66).... 243
Locus' Mt W.Co V Yorgey (Pa.) (13 Atl Rep.
956 [188;;]) rV••;"••;^^; -^
LoebFdy Co u. Stout (b. Ill App 160) 3S
Loeffler V Froelich (35 Hun 368) 485
Logan V Berkshire Apartment Assn (lb N.
Y. Supp. 164) • • . .- •
Logansport v. Justice (74 Ind 3.H) ...........
Lomerson v. Johnson (N. J.) (13 Atl. Kep. ») . .
Loudon v Nasb(3Atk. 515).. ••.• •;^;-
V Taxing District (lOi U b << .).....
London etc. R. Co v Humphrey (b W . R.
r-c ^\ ,
Lonegran V Stewart (.55 111. 44 [1870])
Long V Caflfrey (93 Pa Sl^526h... ... ■;,••"■■
V Davidsotj (.01 N.C 170 [188);] t S. E
Rep 7.58) o'l
340
555
28
706
317
706
612
761
Kep ( .3o; • ^'^
Loiinegftn v. CourMiPV (75 11'. 580) ^ o
Lore V G^addiss (9 Iowa 26.5). ........ ..•••• • • ^' J
V. Goldberg (Cal ) (22 Pac Rep. 112b).... 801
V Thomas (64 N. Y. 107 [1870]). ...... .41, .08
V. Wheeler (67 Mass [1 Gray] 282 [J8.)4]).
438, 67;j, b.b
Lorey t.. Lorey (1 Mo App Rep'r 189)
Loring V Smah (.50 Iowa 271). ......••••• — • • • '66
L<.« Ani^elfS C A. Assn. v Los Angeles (Cal.)
(37 Pac Rep 375) ••••••••••••••
Lose-. V. Buchanan (51 N. Y. 4.9) _.^.
V. Clute (.51 NY. 494).. 2. .
Lott.olzt; Fiedler (59111 App 3.9)... '■■■• —
Lotl.nan v. Barnett (62 Mo 1.59) 24-3 832. 842
Louisiana v Miller (66 Mo 467) 55a
703
370
246
043
842
838
Ix
TABLE OF CASES.
§§
Louisville v. Hyatt (2 B. Mon [Ky.]717 ). . . . . 6<i9
V. Leatherman (Ky.) (35 S. W. Rep.
65J5) 766
V. Muldoon (Ky.) i'i-2 S. W. Rep. 847) 'i'M
Louisville. E & St. L R. Co v. Dounegau
(111 Ind. 179. 1^ N. E. Rep 153 [1887]).
344, 405, 421, 435, 734, 864, 891
L.. E. & St. L. Ry. v. McVay (98 Ind. 391
[1884]) 37,38
Louisville & N. R. Co v. Barhouse (Ala.) (13
So. Rep. 534 616
V. Davis (Ala.) (12 So
Rep. 786) . 627
V. HoUerbach (3 West. ,
Rep. 364).. 579. 689, 694
V. Malone (Ala.) (So
Rep. 33) 870
L., N. A. & C. R Co. V. Berkly (Ind.) (35 N. E.
Rep. 3) 891
Loundsberry V. Eastwick (3 Phila. [Pa" 371
[1859]) 237,240
Lonp V. Gala. S. R. Co. (63 Cal. 97, 11 Amer. &
Eng. Ry. Cas. 589) 412,414
Lovelock V. King (1 Moody & R 60). . . .566, 567, 579
Loveweli v. Westchester Ins. Co. (124 Mass.
418) 629
Low V. Fisher (27 Fed. Rep. 542) 415
V Studebaker (Ind ) (10 N. E. Rep 301
[1887]) 129
Lowe V. Lehman (15 Ohio St. 179 [186.=)]),
eOF-, 611,618 620
V. Peers (4 Burrows 2228) 315 320, 324
Lowell V. Boston & L. R. Co. (2:! Pick. [Mass.]
24) 646. 654
Lubrick v Lyter (3 W. & S. 365) 412
Lucas Coal Co. v. Del & H. C. Co. (148 Pa. St.
227) 514
Lucas V. Commerford (3 Bro. C. C. 160) 706
V. Godwin (3 Bing [N. C] 737). .2.56, 326, 701
V. Snyder (2 G. Gr. [la.] 590) 317
Luckart v. Ogden, etc (30 Cal. 517). . . 130, 325. 326
Ludhrook v Barrett (36 L T. [N. S.] 616. 40 L.
J. C P. D. 798 [1877]) 440, 553, 847
Luke V. Calhoun Co. (52 Ala. 1 15) 892a
Lull V. Korf (84 111. 225) , 445, 505
Lum V. Clark (Minn.) (57 N. W. Rep. 662) 85
Lumber Co. v. Purduin (41 Ohio bt. 373 [1875]). 674
Lumleg V. Gye (2 E. & B. 21G). / 847
Lumley v. Wabash Ry. Co. (C. C.) (7-1 Fed.
Rep 21) 794
Lumsford v. Dietrich (86 Ala. 250 [1888]) 8l5
Lusk V. Clavton (70 N. C. 184) 436
Luther v. Medbury (R. I.) (26 All. Rep. 37).. . . 531
Lydick v. Railroad Co. (17 W. Va. 427) 340
Lyman v. City of Lincoln (Neb.) (57 N. W. Rep.
531) 17, 728, 755, 765
V. Gedney (HI 111 388) 318
Lynch v. City of New York (Sup ) (37 N. Y.
Supp. 798) 183
V. Henry (75 Wis. 013, 44 N. W. Rep.
g3'j"j 559 5go
V. Mayor." etc' (37'n.'y. S. 798)".'.'.*.". . . . .' 134
V. Resenthal (Ind ) (42 N. E. Rep. 1103). 75
Lyndon Mill Co. v. Lyndon Lit Inst. (03 Vt
581) 38, 90
Lynn v. B & O. R Co. (GO Md. 404) 42i, 428
V. Burgoyne (13 B Mon. 400) 503
Lyon V. George (41 Md. 295 [1875]) 611
V. Hussey (Sup.) (3l N. Y. Supp. 281)... 74
V Jerome (13 Wendell 569 [1836]) 507
V. Lenon (106 Ind. 567 [1886],. ...'. 612
•y. Motley (30 N. Y Supp. 218) 12i
Lyon et aJ. v. MeCadden (15 Ohio 551 [1846]^,.. 481
Lyth V. Hingston (Sup.) (43 N. Y. Supp. 653).. 757
Lytton V. G. JS\ Ry. Co. (2 K. & J. 394) 706
M.
Maas V. Hernandez (La.) (19 So. Rep. 269). .566. 810
Maack V. Schneider (51 Mo. App. 92) 8U
Macet;. Putman (71 Me. 238) 59
Machine Co. v. Doggett (13.3 Mass. 582 [1883]). . 627
MacKay Ex parte (L. R. 8 Ch . 643) 273
Mackay v. Ford (29 L J. Ex. 404) 800
Mackenzie v. Baraga Tp. (39 Mich. 554) 175
Mackey v. Columbus (Mich.) (38 N. W. Rep.
899 [1888]) 139-
Mackiusoii v. Conlon (N. J.) (27 Atl. Rep. 930
s. c. 55 N. J. Law 564) 412
Mackler v. Mississippi, etc. R. Co. (62 Mo.
App. 677) 428
MacKnight Stone Co v. New York (Sup.) (4o
N. Y. Supp 139) 241,257,701
MacRitchie v. Lake View (30 111. App. 393). 240, 241
Madden v. Oestrich (46 Minn. .538) 702
Madison v. Danville Min. Co. (2 Mo. App
Reptr. 1234).... 2.57
Madison Co. v. Gibbs (9 Lea [Tenn.] 383) 143
Magaritj- v. Wilmington (Del.) (5 Houston 530
[1879]) 246-
Mahan, i2e (20 Hun) (N. Y.) 301 157
Maher v. Davis & Starr L. Co. (Wis.) (57 N.W.
Rep. 357) 326.561
Mahoney r. Rector (La.) (17 So Rep. 484). 326. 370-
Main v. City of Fort Smith (ark.) (55 S. W. R.
801 [1887]) ; 151
Mainprice v. Wesley (6. B & S. 420) 1P3
Main Street Hole' Co. v. Horton Hardware
Co. (Kan. Sup.) (43 Pac. Rep. 769) 765-
Mairs v Manhattan R. E. Assn. (89 N. Y. 498
[1882]) 275. 54.5, 641a
Makepeace v. Jackson (4 Taunt. 770) 819. 823
Mallan 17. May (13 M. & W. 517) 123
Malone v. Mayfleld (Tex.) (36 S. W. Rep. 148). 744
V. Wood (Pa.) (18 Atl. Rep. 984) 239
V. Philadelphia (147 Pa. St. 416. 23 Atl.
Rep. 628 [1892]) 99,318
V. Phil. & R. R. Co. (157 Pa St 430),
27 Atl Rep. 7.56),
318. 326. 398, 473 572, 573. 574
Maloney v. Malcolm (31 Mo. 45) 720^
Maltbie v. Baiting (Super. N. Y.) (26 N. Y
Supp. 903) 641a
Manchester Mills v. Rundlett (23 N H. 271).... 271
Manda v. Sullivan County Club (Sup.) (38 N
Y. Supp. 55) 67*
M. & N. Savings Bank v. Dashiell (25 Grutt.
616) 799'
Mangan v. Windsor (Ont.) (24 Ont. 675 [l89l]).'. 724
Manhattan T. Co. v. Dayton (C C A.) {r>9 Fed.
Rep. 327 4^
Manistee I. Wks. v. Shores Lumb. Co. (Wis.)
(65 N. W. Rep. 863) 318 32fr
Mann v. Richardson (14 Amer. Law Reg. [N
S.]578) 522'
Mansfield v. Doolin (4 Ir. R. C L. 17) 427
V. New York (Sup.) (44 N Y. Supp.
229) 757
V. N. Y. Cent. R. (N. Y.) (21 N. E
Rep. 1073 [1889] 324. 326 68»
Mansfield C. & C. Co. v. McEnery (91 Pa. St.
185 [1879]) 24t>
Mansfield, etc.. R Co v. Veeder (17 Ohio SSh),
384 421, 428. 43 >. 487, 595^
Manufacturers" & B. F. Ins. Co. v. Mullen
(Neb.) (67 N. W. Rep 44r.) 531
Manfs. Fur. Co. v. Kremer (S. D.) (64 N W.
Rep. 528) 555
Marcey v. Barnes (16 Grav 162) . 88a
March, In rt (83 N. Y. 435 [18&1]) 156
Marcottev. Beaupre(15Minn. 152) 811 81*^. 814 815
Marcus Sayre Co. v- Bernz (N J Ch ) (26 Atl «
Rep. 911)! 427 4.3»
Marcv V. Barnes (82 Mass 161) 880
Margon u Carter (. Car. & P. 295) 678
Marion v. Bennett (8 Paige 3! 2) 65
Marion School Tp. v Carpenter (Ind.) (39 N
E. Rep. 878) 124
Markev v. Jlilwaukee (Wis.) (45 N W. Rep. 28
[i89d])...., 399,440 .586
Marks v Northern Pac R Co. (C C A ) (76
Fed Rep. 941) 549. 595
Marmet Co. v. Archibald (W. Va.) (17 S. E.
Rep. 290) 795
Marquette (Bld'g) Co v. Wilson (Mich.) (67 N.
W. Rep. 123) 595
Marquis v Lauretson (la) (40 N W. Rep. 73
[188--]) 812. 813
Marr v. Telegraph Co. (Tenn.) (3 S.W. Rep. 496
[18S7], 85Tenn. 52) 86
TABLE OF CASES.
Ixi
Marrable. Ex parte (1 Glyn & J. 402) 2T1
Marsden-v. Sambell (28 W. R 952) 726
Marsh, In re (83 N. Y. 435 [188:]) 146. 155 157
r. Astoria, etc. (i'T Ills 421) 812
V Hartwell (2 Ohio N. P. 389) 42
V Kauflf (74 III. 189 [1874]) 324 326
v. Masterton (101 N. Y. 401) 51«i
V. Richards (29 Mo. 99 [18.59]).. .238, 702 703
Marshal) v. Ames (11 Ohio Cir. Ct. Rep. 363).. 310
V. Brick (Fa. Sup.) (34 Atl Rep. 520). . 17
V. Broadhurst(Eng.) (1 0. & J. 403).t0 11
V. Brown (Mich.) 05 The Reptr. 693
[1883], 32 Alb. Law Jour, .54) .... 876
V. Cohen (Com. PI.) (32 N Y. Supp.
i;83) 768
Marshall Fd.y. Co. v. Pittsburgh Tiac. Co (138
Pa. St 266) 572
Martin v. Hall (26 Mo 386 [1858]) 620, 627
V. Leggett (4 E. D. Smith [N. Y.] 257),
366. 413. 414. 440
V. Maynard (16 N. H. 165 [1841]).
611, 618. 627
V New York Life Ins. Co. (N. Y. App )
r42 N. E. Rep. 416) 801,808
V. Thresher (40 Vt. 461 [1868]) 621
Martine v. Nelson (51 III 422) ... 183. 184, 579
Martin.>^burg & P. R Co v. March (114 U. S 549
[1884]) 381 , 387, 420 428. 429 430
Mascotc V. Granite State F. Ins. Co. (Vt.) (35
Atl. Rep. 75) 2.32
Mason. 7?i re (14 N. Y. Supp. 434) 887
V. Bauman (62 111 76) 514
V. Bridge (14 Maine 468 [1837]) . . . .402, 412
V. Brooklyn C. & N. R. Co. (35 Barb
373 [1861]) 601
Massy V. Govder (4 C. & P. 46n 643
Masters v. Houck (39 Mich 431) 702
Masterton v. Mayor of Brooklyn (7 Hili [N. Y.j
62) 695
Mastin u. Hallev (61 Mo 196) 70b
Ma.«ury u. Whiton (111 N Y. 679 [1888])........ 436
Math V Frost (75 Wis. 166) ... 702
Mather v. American Exp. Co. (138 Mass. 55
[1884]) 815
V Builer (28 Iowa 253) . . 572, 574, 575. 57?
v. Day (Mich.) (61 N.W. Rep. 198) .365 4H0
Mathews V. Alexandria (68 Mo 115) 55b
Matthews v. Murcheson (17 Fed. Rep. 760
[1S83]) 58
V. Rice(4 Bradw. 90 [1879]^) 414
V. Sharp (99 Pa St. 560) 316
Matthews Mfg Co v. Trenton Lamp Co. (C C.)
(<3 Fed. Reu 212) 823
Matbewson v. Grand Rapids (Mich ) (50 N W.
Rep 651) .39, 275, 326, 5.56, 689
Mattison v Lake Shore & M S. Ry. Co. (Com.
PI.) (2 Ohio N. P. 27b) 80*
Mauer V. Ferguson (17 N. Y. Supp. 349) 886
Maughan v. Burns Estate (Vt.) (23 Atl Rep.
583) 883
Mawson v. Leavitt (City Ct.) (37 N. Y Supp.
1138) 318
Maxfield v. Terry (4 Del. Ch. 618) 69
Maxtea v. Seymour (.56 Mich. 129) 219
Maxwell V Stamlaus (.53 Cal 389) 139
May V. Detroit (12 Am. L. Reg. [N. S.] 149),
146 168,172
V. Mf^nton (City Ct.) (41 N. Y. Sup. 650) . . . 703
V. Miller (.59 Vt. 577) 433 434
Mayer V Lawrence (58 III App 194) ei'
V. Thompson Hutchin.son Bldg. Co
(Ala.) (16 So Rep 620) 641
Maj'hew v. Cricket (2 Swanst Ch. 185) 20
Mayo V Hampden Co. Commrs. (141 Mass
74) 17b
Mayor V Britton (12 Abb Pr. [N Y] 367) 5.55
V. Bntier(i Barbonr .325 [1847]) 473
V. Ciinliff (2N Y. R 16.5) 842
V E>;cbbaeb (17 Md 2'.6) 553
V Kevser (Md.) (19 At. Rep 706) 183
v, Moore (.52 Hun 1.39 [1889]) .... . . 739
V. Pool (19 S W. Rep 325 (Tenn.) [1892]). 892
V. Reynolds (20 Md. 1) 55T
Mayor of New York v. Bailey (2 Denio 433
[1845]) 042 644, 829
l§
Mays V. Dwight (1 Norris [Pa.] 462). .- 65.
Mazet V. Pittsburgh (Pa.) (20 Atl. Rep. 693
[1890]) ..r. 157
McAllister v. City of Tacoma (Wash.) (37 Pac.
RfP- 447) 157
McAlpine v. L. & A. Ry. Co. (17 Scotch Ses-
sions Cases 113 [1889]).. .. 397
McAndrews v. Tippett (39 N. J. Law 105) , .326,
670, 689
McAuley v. Carter (22 111. Rep. 53 [1859]).. ,428. 44.5.
McAvoy V. Long (13 III. 147) 370. 402, 415
McBrian v. Grand Rapids (56 Mich. 95 [188."'])
.51,. 53, 138, 154, 1.57. 1,58. 172
McCafferty v. McCabe (13 How. Pr. [N. Y.] 275)." 707
V. Spuyten Duyvil. etc., R R. Co.
(61 N. Y. 178 [1874]).. 641, 6.53, 0.54.
McCahan v. Reaniv (33 Pa. St. 535 [1859]) ..412, 436.
McCain, In re (S D.) (68 N. \V. Rep. It3),
173, 176, 8.59a
McCain v. Desnoyers (2 Mo. App. Rep. 896) 803.
McCall V. McCall (S. C.) (15 S. E. Rep. 348) 370-
McCalla v. Daugheity (Kan. App.) (46 Pac.
Rep. 30) 12a
McCanley v. City of Des Moines (83 Iowa 212
[1891]) 679-
McCann v. City of Albany (Sup.) (42 N Y.
Supp 94) 435
V. Waltham (Mass.) (-10 N. E. Rep. 20) 65*
McCandless v. Alleghany Bessemer Steel Co.
(Pa. Sup.) (25 Atl. Rep. .579) 6S.
McCarren v. McNnlty (7 Gray 139) 340, 415
McCarthy v Bauer (3 Kan. 237 [1865]),
248, 829, 838, 850. 858
V. Loupe (62 Cal. 299) 518-
McCartj v. Second Parish (74 Me. 318) 654
V. The Hampton Bldg. Assn. (61 la
287 [1883]) 28, 66, 69, 563
McCauley v. Jenny (5 Housion [Del.] 132) 32-
V. Keller (130 Pa. St. 53. 18 All. Rep.
607 [lf-89]) 399. 428, 514, 572-
V. Palmer (40 Hun [N. Y.] 38) .859a
McCauslana v. Cresap (3 G. Gr [la.] 161).. .691, 692-
McCay v. Able (Ind.) (30 N. E. Rep. 528 [1892]),
405, 411
McChesnev v. City ot Syracuse (Sup.) (22 N. Y.
Supp 507) 175.
McClair v. AusMn (Colo.) (31 Pac. Rep 2x5).... 694
McClary v. Mich. Cent R Co (Mich.) (00 N.W.
Rep. 695) 602-
McCIay v. Ghick (Minn.) (40 N W. Rep. 875
[1889]) .562-
r. Hedge (18 la. 60) 701
McClelland v. Linder (18 111 58) 238=
McCloud V. City of Columbus (Ohio Sup.) (44
N. E. Rep 95) 135.
McConey v. Wallace (Mo ) (4 West. Rep. 843). 695,
McCorkle v. Goldsmith (1 Mo. App Rep. 172). 27
McCormack Iv re (60 Barb. 128 [1870]).. . .159. 163
McCormack v. Reece (3 Green [la.] 591 ) 49'
McCormick v. Connolly (2 Bay [S CI 401).
238. 569, 572. 579'
V. Dalton (Kan.) (35 Pac. Rep. 1113) 2a
V Los Angeles Co. (40 Ca 1. 185) ... . 861
V Saddler (Utah) (37 Pac. Rep. 332) 87a
McCormick Harv M. Co. v. Wilson (Minn.) (40
N W. 571 [1889]) 562
.McCortietJ Bates (29 Ohio St. 419) 555
McCoy v Able (Ind.) (.30 N. E. Rep. 528,31 N. E.
Rep. 453) 370, 429^
v Long (13 111 147) 445
McCradv v. Jones (S. C.) (15 S. E. Rep. 430)... 878
McCrarv v. Harri.son (36 Ala. 577) 483
! McCreerj v. Day (119 N. Y. 1) 561, .502
' McCullough Appeal of (Pa.) (18 Atl Rep. 1080) 317
I McCullough V. Ashbridge (Pa.) (26 Atl Rep. 10) 621
V. Baker (47 Mo. 401) 689 691
McCurrv v. Gib.son (Ala.) (18 So. Rep 806) . . . 324
McDaniel's Appeal (Pa.) (12 Atl. Rep 154
[1888]) 321
McDermott v Board "Water Comrs. of Jersey
City (N J Sup.) (28 Atl. Rep 424) 1.39. 177
McDonald v. Cliarlesfown. etc. R. Co. (Tenn.)
(U S. W Pep. 2.52) .... 861
V. Dolsre Co. (Neb) (00 N. W. Rep.
3136) 703, 891:
Ixii
TABLE OF CASES.
McDonald v. Gardiner (56 Wis. 35) 6U9
V. Mayor (68 N. Y. 23) 35 53, 143
V SiuipsoD (4 Ark 523) 828
V State (N Y.) (2? N. E. Rep. 358
[1891]) 886
McDonnell v Ford (Mich.) (49 N. W. Rep 545
[1891]) 616
V Rigney (Mich.) (66 N W. Rep. 52) 82
McElhinney v. Citv of S. (NebJ (49 N. W. Rep.
705 [1891] 42
MoEiwee v Bridgeport Ld. Co. (54 Fed Rep.
627) 690
McEinandy v Kyle (14 Daly 268 [1887]) 644
McEntyre v Tucker (Com. PI.) (25 N. Y. Supp.
95 5 Misc Rep. [Com. PI. N Y.] 228 31 N.
Y. Supp. 672) 413 417. 473 503. 507, 701
McEwen v Nashville (Tenn.) (30 8. W. Rep.
968) 587
McFadden v O'Donnell (18 Cal 160 [1861]),
439, 564, 572, 581, 68"
McFarland v. McClees (Penn.) (5 Atl Rep. 50). 828
V Sikes (Conn.) (3 N E. Rep 252).. 59
V. U S. Mut,. Accdt Assn (Mo
Sup.) (27 S. W. Rep. 436) 95
McGee V. Laveli (L R 9C. P. 115) 317
McGehen u. Duffleld (5 Bart 597) 412
McGeragle v. Broenal (N J.) (20 Atl. Rep 857
[1890J) 216
McGhee Irrigating Ditch Co v. Hudson (Tex
Sup.) (22 S W Rep 398) 892a
McGonigle v. Klein (Colo App.) (40 Pae. Rep.
465) 678. 684 687
McGovern v Board (N J Sup.) (31 Atl. Rep 613, 173
V Bockins (10 Phila [Pa.] 438) 397
McGowao V Remington (12 Pa St 56) 70'^
McGrann v. Hamilton (Conn.) (19 Atl. Rep. 376
[1890]) 891
V North Lebanon R Co. (29 Pa. St.
8-^ [1857]) 561, 572, 577, 580
V. Pitts6urub & L. E R. Co. (Pa.)
(2 Atl. Rep. 872 [1 88.=)]) 76?
McQrath v. Merwit (112 Mass 467) 5P
McGraw v. P & L E. R. Co (v Cent Rep. 565) 559
McGregor v Cock (Tex. App.) (16 S. W. Rep
936) 76b
V. Ross (96 Mich 103) 682 730
V Ross Estate (Mich.) (60 N. W.
Rep 38) 682. 739
McGuinness v. New York (26 Hun 142) 522
V Shannon (l')i Mass 86 27 N. E.
Rep 88) [i891]) 222,560
McHenry v Browii (Minn.) (68 N W. Rep. 847) 563
V Marr (39 Md 510) 643
Mclntire v Barnes (4 Colo 285) 629
Mcintosh V Gt Western R. Co. (14 M & W.
548 2 Mac &G 74) 426a 734
V Hastings (15e Mass 344 31 N E.
Rep 288) 376, .55:-
McKay v Lasher (121 N Y 477 [1890]) 891
McKeev Miller (4 Blackf 222) 670
i; Rape (Super.) (35 N. Y. Supp 17.5),
326. 762, 764
McKennav Lvie (Fa.) (26 Atl Rep 777).. ..348 485
McKenzie u Decker (94 N. Y. 6.50) 70o
V Wiinberiy (Ala.) (5 So Rep. 465
[1889]) 625
McKeone v. Barnes (108 Mass 344 [1871]) 885
McKey i^ Nelson (43 III App 456) 553
McKiidey v C S T & C Ry. Co (40 Mo App
449 [189U]» ... 676
V Williams (C. C A ^ (74 Fed Rep
9U 122
McKinney v. Page (32 Me. 513) 370
V Springer (3 Ind. 59) 572. 573, 580 697
McKlnnis v. Freeman (38 Iowa 364 [1874]) 428
McKinstry V Soiomons. (2 Johns [N Y.]57;s.
c. 13 Johns. 27) 48^
McKinzie v Stafford (Tex.) (27 S W. Rep. 790) 12i
McKnightv Pittsburgh (9' Pa St 273 [1879]) 5.^P
McKooev Williams (3' 111 App 591) 439
McLane v. De Leyer (56 N Y. 619) 2.56, 277
McLaughhn v Austin (Mich., (62 N. W Rep.
719).. Ill
McLennan v. Wellington (48 Kane 756) (:i0
Pac Rep. 183) 21
McLeod V. Genius (31 Neb. 1), (47 N. W. Rep.
473 [1890]) 239, 326, 565, 566, 567, 581
McLoughlin v. Child (62 Ind. 412) 629
McMahon v. The N. Y. & E. Ry. Co. (20 N Y.
463 [1859]) 407. 412, 420, 421, 437, 439, 495
McMalen v. New York, etc., R. Co (20 N. Y.
463) 428
McManus v Donahue (7 Alb. L. J. 411 [1873]) 684
V. The C. Gas Lt. Co. (40 Barb. 380
[1863]) 633
McMaster v. The State of New York (108 N. Y.
542; s. c, 37 Alb. Law Jour. 295) 572, 577
McMillan v. Allen (Ga.) (25 S. E. Rep. 505). .365, 429
McMillen v. Hopper (Sup.) (44 N. Y. Supp 63). 580
McMiller v. Vanderlip (12 Johns. 165) 699
McMillin v. Walkei (21 N. B. R 31) 76
McMullan v. Dickinson Co. (Minn.) (65 N. W.
Rep. 601) 809
McMuUen v. Hoffman (C. C.) (75 Fed. Rep. 547),
54, 82, 148, 149
McMurray v. Boyd (Ark.) (25 S. W. Rep 505). . 807
McNamara v. Board of Commrs (La.) (11 So.
Rep. 278) : 579,580
V. Harrison (81 Iowa 466), (46 N. W.
Rep. 976 [18901).
392, 412, 413, 482, 503, 504, 505, 507
McNamee v. Toronto (24 Ont. Rep. 313 [1894]). 511
McNeal Pipe & Foundry Co. v. Bullock (Ala.)
(38 Fed. Rep. 565) 766
McNeeley v. McWilliams (13 Ont. App. 324
[1887]) 122
McNeely v Duff (Kan.) (31 Pac Rep. 1061) 877
McNeil V. Boston Chamber of C. (154 Mass.
277)(28N. E Rep 245 [1891]) 187,555
McNight Stone Co. v. New York (Sup.) (43 N,
Y. Supp. 139) 891
McNulty V. Stearns (Iowa) (52 N. W. Rep. 37.5). 324
McNutt V. Loney (Pa. Sup.) (25 Atl. Rep. 1088). 66
McPhail V. Board of Commrs. (N. C.) (25 S. E.
Rep. 958) 701
McPherson, City of, v. Nichols (Kan.) (29 Pac.
Rep. 679) 892a
McQuiddy V Vineyard (1 Mo. App. Rep. 264).... 50
McRoberts v. The Southern R. Co. (18 Minn
108 [1871]) 629
McSorley v. Prague (137 N. Y. 546) 572
McVey v. Darkin (Pa.) (20 Atl. Rep. 541 [1890]). 879
McWilliams Mfg. Co. v. Blundell (11 Fed. Rep.
419) 823
Meade v. White (Pa.) (8 Atl Rep. 912 [1887]>. . 877
Meader v. White (66 Me. 90) 59
Mears r. O'Doiioghue (.58 111. App 345) 801
Meehan v. Williams (2 Daly [N. Y.] 367) 325
Meek v. Frantz (Pa. Sup.) (33 Atl. Rep. 413).... 70
Megrath v. Gilmore (Wash.) (39 Pac Rep. 131),
125, 183
Mehurin v. Stone (37 Ohio St. 55) 700
Meincke v. Falk (61 Wis. 628 [1884]) 223
Mellen v. Ford (28 Fed . Rep. 639) 469
Melvy V. Chicago & N. W. Ry. Co ^a.) (42 N.
W. Rep 563) 866
Memphis & C. R. Co v. Graham (Ala.) (10 So.
Kep.283) 627
Memphis (The), etc., R. Co v. Wilcox (48 Pa. St.
161 [1864]). .343. 370, 384, 397, 411, 412. 416, 428,
490, 510. 573, 595, 690
Menetone v Athawes (Eng.) (3 Burr. 1592). .676. 677
Mengis v Fifth Ave. R Co (30 N. Y. Supp.
999) 'j'27
Menne V. Neumeister'(25 Mo. App 'SOO) V. . 572, 684
Mercer v. Harris (4 Neb 77),
412, 428 445. 474, 480, 485
V Whal (5Q B 447) 804
Merchants Exch. Co. v Uniteo States (15 Ct.
of CI 270) 572 580, 586
Merchants' Ins. Co. v. Morrison (62 111 242
[1H71]) 182
Meridian W. W Co v. Schulber (Miss ) (17 So.
Rep 167) 553
Merriam in Petition (84 N. Y. 596 [;88l]).
1.57, 159 162
Merrick v. McNally (26 Mich. 374 [1873]) 628
Merril v. Itnaca & O. K. R. (16 Wend. 586)
421, 439, 610. 877
Merrill v. Merrill (15 Mass. 488) 317, 319
TABLE OF CASES.
Ixiii
Merritt v. McNallv(Mout.) (36 Pan. Rep. 44). 839, 85:i
Messenger v. Buffalo (-jl N. Y. 196 [I860]). .557, 584
JMesses v. Kegutiter (32 la. 312) 891
Messner V. Lancaster Co. (23 Pa. St 291) 428
Meth. Epis. Parish v. Clarke (74 Me. 110)
219, 555, 796
Meyer v. Berlaudi (53 Minn. 59, 54 N. W. Rep.
937) 228.566, 581
V. Hallock (2Robt. [N. Y.] 284) 691
Meyers v. Pac Const. Co. (20 Oreg. 603) 437
V. Sari (3 El. & El. 306). 545
V. Seheiup (67 III. 469) 106
Michael V. Bacon (49 Mo. 476) 87
Michaelis v. Wolf (136 111. 6S, 26 N. E. Rep.
884 [1^9l]) 232. 370, 414. 427, 428, 477
JMichaud v. McGregor (Minn.) (63 N. W. Rep
47;i) 553 5g9
Miciiel V. O'Brien (27 N.' Y.' Supp." 173).'. ."." .*. . . .' 325
.Michigan Ave M. E. Ch. v. Hearson (41 111.
App. 89) 370,397,399
Michigan Ins. Co. v. Wich (Colo.) (46 fac. Rep.
687) .- 878
Michigan M. & C. R. Co. v. Bacon (33 Mich.
446 [1876]) 13
Michigan S. Co. v Iron Range & H. B. R. Co.
(Mich.) (59 N. VV. Rep. 646) 558
Mid. Co. Bk. V. Hirsh Bros. (4 N. Y. Supp. 385
[1889]) 30
Midland R. Co. v. Ontario R. Co. (10 Ont. App.
677) 688
Milan v. Rio Grande, etc., R. (Tex.) (37 S. W.
Rep. 16.T) 105
Miles V. Gary (1 4 Vesey 400) 356
Miller Appeal (107 Pa. St. 221 [1884]) 816
Miller v. Benjamin (Sup.) (21 N. Y. Supp. 1116). 698
V. Bolto (79 111. 535 [1875]) 621
V. Chicago. B. & Q. Ry. (C. C.) (65 Fed.
Rep. 305) 344, 345
V. Edgerton (Cal.) (15 Pac. Rep. 894
[188S]) 216
V. Excelsior Stone Co. (1 111. App. 273).. ^^8
V. Gardner (49 Iowa 234) 794
V. Gidier (36 La. Ann. 201) 805
V. Goodwin (70 111. 659 [187-3]) 35, 40
V. Hubbard (4 Cranch C. C. 451) . 677
V. L. N. A. & C. Rv. Co. (Ind.) (27 N. E.
Rep. 339 [1891]) .880
V McCaffrey (9 Pa. St 245) 545, 555
-u. MoCay. (50 Mo. 2)4) 123
V. Miller (68 Pa. St. 486 [1871]) 28
V. Phillips (31 Pa. St. 218) 682
V. Preston (4 N. Mex. 314) 49
V. Stewart (4 Wash. C. C. 26. 9 Wheat.
680) 20
V. Sullivan (Tex. Civ. App.) (33 S. W.
Rep. 695) "... .504, 686
Miller's Estate, Li re (26 Pittsb. Leg. J. [N. S.I
428) .'887
Milligan v. Sligh Furniture Co. (Mich.) (70 N.
W. Rep. 133) 803
Milliken v. Keppler (Sup.) (38 N. Y. Supp. 738). 326
Mills V. Allen (10 Sup. Ct, Rep. 413) 16
V. Bayley (2 H. & C. 36) 348
V. Brooklyn (32 N. Y. 499) 247
V. City of Detroit (Mich.) (54 N. YJ. Rep.
897) 139
V. Norfolk, ere, R. Co. (Va.) (19 S. E.
Rep. 171 [1894]) 761
V. Paul (Tex.) (30 S. W. Rep. 558),
318, 319, 440, 703
V. Weeks (21 111. 561, 596) 370, 376, 392,
43H, 474, 475, 479, 480, 481, 595
Mills County v. B. & M R. Co. (47 Iowa 66
' [1877]) ; 84
Millstone Granite Co. v. Dolan (18 N. Y. Supp.
791 [1892]) 219
Milner v. Field (5 Exch. R. 829 [1850]). .414, 415, 847
Milnor v. The Georgia R, & Bkg. Co. (4 Ga. 865
[1848]) 340, 343, 365, 439, 510, 511
Milroy v. Chicago, etc., R Co. (Iowa) (67 N. W.
Rep. 276) 61.5,619
Milwaukee Masons' & Builders' Assn v. Nieze-
rowski (Wis.) (70 N. W, Rep. 166) 82
Milwaukee Mechanics' Ins Co. v. Brown
(K«bs. App.) (44 Pac. Rep. 35) 16
Milwaukee M. Ins. Co. v. Stuart (Ind.) (42 N. E.
Rep. 290) 369
Mining Co. v. Cullins (104 U. S. 177). 861
Minneapolis, etc., R. Co. v. Co« (76 Iowa 306). 706
Minnesota Ry. Co. v. Morgan (52 Barb. 217). .. 616
M'lntosh V. Midland Cos Ry. Co, (14 M. & W.
548, 3 Ry. Cas. 780),
326, 382 425, 510, 573, 720
V. Gt. Western R. (13 Jur. 92, 14 Jur.
819, 2 Mac. & G 74, 2 Hall &
Tw. 250 [1851]) 426a, 428. 438, 440
Mississippi & Dominion Steamship Co. v.
Swift (86 Me. 248) 9|
Missouri Iron Wks. v. Rivers Arch. Co. (59 111.
App. 545) 809
M., K. & T. R. Co. V. Elliott (.50 Fed. Rep. 772) 525
Mo. Pac. Ry. Co. v. Simons (Tex.) (25 S. W.
Rep. 996) 558
Mitchel V. Cavanaugh (38 Iowa 286 [1874]).. 429, 432
V. Henry (15 Ch. D. 181, 24 bolic. Jour.
522, 689). 606, 891
V. Milwaukee (18 Wis. 92) 142
Mitchell V. Wiscotta Land Co. (3 Iowa 209),
417, 699, 701
Mitchler v. Easton (Pa.) (23 Atl. Rep. 1109). . . . 168
Mittnacht v. Wolf (6 Pa St. 44) 221
Mix V. Staples (17 N. Y Supp. 775) 876
Mizell V. Burnett (4 Jones [N. C] 279) ... 669
M'Kinnon v. Peuson (8 Exch. 319 [1853]) 851
Mobile & O. R. Co. v. Stinson (Miss.) (21 So.
Rep. 522) 892a
Mobile & B. Rv. Co. v. Worthington (Ala.) (10
So. Rep. 839 [1892]) .. -...125,491
Moeriing v. Smith (Ind.) (34 N. E. Rep. 675). . . 891
Moffat V. Dickson (13 C. B. 534, 22 L. J.C. P.
265 [18.53]) 340, 415, 812
Moffatt V. Laurie (15 C. B. 582 [1855]) 340, 813
Mohan v. Dundalk, N. & G. Ry. Co. (6 L. R. Ir.
477 [1881]) 720, 724
Mohawk Bridge Co. v. Utica & S. R. Co. (6 Pai.
[N. Y.] .5.54) 230
Mohney v. Reed (40Mo. App. 199) , 701
Mohr V. McKenzie (60 111. 570) 6.54
Moline W. P. & Mfg. Co. v. Nichols (26 III. 90
[1861]) 814
Moll V. Foery (43 Hun 476) 699
Monacacy Bdge. Co. v. American I. Bdge. Co.
(83 Pa. St. 517) 703
Monahan v. Fitzgerald (111. Sup.) (45 N. E. Rep.
1013) 469, 500, 503
Monev v. York Iron Co (Mich.) (46 N. W. Rep.
376[1890]) 687
Moneypennvv. Hartland (1 Car. & P. 352; s. c,
2 C. & P. 378) 5, 828, 837, 838
Monks V. Dillon (10 L. R. Jr. 349, 12 L. R. Ir.
321) 275
Monmouth Park Assn. v. Warren (N. J.) (27
Atl. Rep. 932 [1893]) 216,219,318
Monongahela Nav. Co. v. Fenlon (Pa.) (4 W. &
S. 205 [1842]).... 86, .^43, 359, 365, 412, 41.5, 428,
429, 473, 490, 510. 684
Monroe v. Butt (8 E. & B. 738 [1858]) 697, 701
V. Perkins (9 Pick. [Mass.] 298 [1830]),
122, 561
Monteverde v. Queen's Co. (78 Hun [N. Y.]
267) 702
Montgomery v. City of New York (29 N. Y.
Supp. 687; s. c„ 45 N. E. Rep. .550),
276, 326, 429, 446, 580, 689
Moody V. Jones (Tex.) (37 S. W. Rep. 379). . 105
Moon V. Guardians of Poor (3 Bing. N. C. 81 4)
371, 553, 616 '
Moore v. Bennett (111.) (29 N. E. Rep. 888). . . 82
V. Fountain (Miss.) (8 So. Rep. .509
[1891]) 21
V. Goodwin (43 'Htm 534 [1887]) 340
V. Jones (Tex.) (25 S. W. Rep. 9^) 429
V. Kerr (65 Cal. 519) 428
V. Mattoon (111. Sup.) (45 N. E. Rep. .567). .530
V. Mayor (73 N. Y. 2.3H) 5.57
V. Platte Go. (8 Mo. 467) 316
Mopley V. Leophart (51 Ala. 587) 135
Moran v. Schmitt (Mich.) (67 N. W. Rep. 32.3). 566
Mordue v. Palmer (L. R. 6 Ch. 225 4.^C. 48f
Morean v. Dumagene (20 La. Ann. 230 [1868]).. 816
Ixiv
TABLE OF CASES.
Morgan v. Birnie (Eng.) (9 Bing. 672 [1833]).
•692, 394, 41 J, 414, 415, 468, 477, 595, 623
V. Bowman (22 Mo. 538) 243
V. Fremont Co. (la.) 61 N. W. Rep.
231) 888
V. Griffith (L. R. 6 Exch. 70 [1871]). .. 129
V. Smith (Mass ) (35 N. E. Rep. 101),
654, 662, 663, 664, 667
V. Stevens (6 Abb. New Cases 3.57
[1878]) 265, 602
V. Taylor (5 N. Y. Supp 920 [1889])... 767
V. Ward (Wright 474) 677
Morgan Park, Village of, v. Grahan (III.) (26
N. E. Rep. 1085 [lb9l]) 168
Morier v. Moran (58 III. App. 235) 682
Morowski v. Boiirig (Com. PI. N. Y.) (23 N. Y.
Supp. 880) 618
Morrell v. Whitney, etc. (32 Ala. 55) 310
V. Wooten (16 Beav. 197) 295
Morril V. Colenour (82 III. 618).. 130, 561, 563, 564, 572
Morrill v. Mill Co. (10 Nev. 125) 794
Morris v. Bradford (19 Ga. 527) 859a
V. Brown (111 N. Y. 318 [1888]) 279
V. Columbian Iron Works (Ma.)(25 Atl.
Rep. 417) 876, 791
V. McKee (Ga.) (24 S. E. Rep. 142) 796
V. Thompson (L. R. 9 Q B. 480 [1874]).. 515
Morrisey v. Broomal (Neb.) (56 N. W. Rep. 383). 720
Morrison v. Cummings (26 Vt. 486 [1854]).. 701, 703
V. Lovejoy (6 Minn. 319) 581
V. Moat (9 Hare 255) 819
Morton v. Harrison (52 N. Y. Supr. Ct. 395
[1885]) 702
V. Read (2 S. & M. 58.5) 674, 697
Moseley v. Van Hoser (6 Lea [Tenn.] 286) 59
V. Virgin (3 Ves. 184) 706
V. Baker (2 Sneea [Tenn.] 362) 669
Moser v. White (29 Mich. 59) 555
Mossman v. Forrest (27 Ind. 233) 892a
Mott V. Danville Seminary (111.) (21 N. E. Rep.
927 [1889]) 32, 38
Moulton V. McOwen (103 Mass. 587) 701
V. Trask (9 Mete. [Mass.] 577).. . . 439, 683
Mowry V. Star buck (4 Cal. 274) 565, 569
Moyer v. Sun Ins Office (Pa.) (35 Atl. Rep. 221). 369
Moynahan v. Birkett (31 N. Y. Supp. 293) 157
Mras V. Duff (Wash.) (39 Pac. Rep. 267) 220
Mueller v. United States (19 Ct. of CI. 581). . . . 184
Mulhado v. R. R. Co. (30 N. Y. 370) 880
Mnlliolland v. Mayor (113 N. Y. 631. 20 N. E
Rep. 856 [1889]) .382. 514. 5.53, 565, 587
Mulligan v. Cannon (Sup.) (41 N. Y. Supp.
279) 898
V. Mulligan (18 La. Ann. 20).... 814, 862
V. Sligh Fur Co. (Mich.) (70 N. W.
Rep. 133 [1897]) 804
Mulliner v. Bronson (14 Bradw. 3.55 [188.3]) 619
Mulnix V. Mutual Ben. L. Ins. Co. (Colo.) (46
Pac. Rep. 123) 142
Mulrein v. Kalloch (61 Cal. 522) 164
Mum by v. Bowden (25 Fla. 454) 654
Mundy v. Black (9 C. B. N. S. 5.57) ... ... 528
V. Louisville & N. R. Co. (67 Fed. Rep.
6:«) 428
Municipal Sig. Co. v. Holy oke (Mass.) (46 N. E.
R-p. 387).. 183
Munio V. W. & B. Ry. Co. (11 Jur. [N. S.] 612),
4.38, 747
Monroe v. Butt (8 E. & B. 728 [18.58]) 699
Mum-oe v. Godkin (Mich.) (69 N. W. Rep. 244). 891
V. Perkins (9 Pick. [Mass.] 298 [1830]). 563
V. Wivenhoe, etc., R. Co. (11 Jur. [N.
S.] 612) 720
Munsell v. Baldwin (56 Conn. .522 [1888]) 829
V Temple (3 Gillman 93) 13
Munsey v. Tadella Pen Co* (Sup.) (38 N. Y.
Supp. 159) 674
Murdougli V. Town of Revere (Mass.) (42 N. E.
Rep. 502) 179,555
Mu?-pliy v. Alhina (Oreg.) (29 Pac. Rep. 353
[1892] ) 53, 552, 553, 555
V. Buckman (66 N, Y. 297 [1876]).
724, 726, 728, 731
V. Chicago (29 111. 279) 638
V. Greeley (146 Mass. 196 [1888]) 627
Murphy v. Jones (Sup.) (33 N. Y. Supp. 461). . 43»
V. Liberty Natl. Bk. (Pa. Sup.) (36 Atl.
Rep. 283) 435
V. Napa Co. (20 Cal. 497 [1862]) 43
V. N. British & M. Co. (61 Mo. App.
323) .349, 369
V. Stickley-Simonds Co. (Sup.) (31 N.
Y. Supp. 295) 702-
V. Taylor (Pa. Sup.) 33 Atl. Kep. 104). 691
V. United States U3 Ct. of CI. 372),
572, .579, 584
Murray t?. Pillsbury (Minn.), (60 N. W.-Rep.
844) 2.32
Munie v. Currie (L. R. 6 C. P. 24) 6.52
Muscatine R. Co. v. Norton (38 Iowa 33 [1873]). 179
Muscatine W. W. Co. v Muscatine Lumb. Co.
(Ia.)(52N W. Rep. 108) 796
Musselbach v. Norman (122 N. Y. 578) 564
Mutual V. Rowand (26 N. J. Eq. 389) 86^
Mut. F. I. Co. V. Alvord (C. C. A.) (61 Fed. Rep.
752) _ ^ _ _ _ _ goQ.
Mutual" Life fiis. Co! r.City of N. Y.'(Sup.)'(29
N. Y. Supp. 980 [N. Y. App.]. 39 N. E. Rep.
386) 143, 157
Mut. L. Ins. Co. of N. Y. v. Simpson (Tex.) (28
S. W. Rep. 837) 885
Mutual Benefit L. Ins. Co. v. Rowand (26 N.
J Law 389) 629, 86?
Myer v. Fruin (Tex.) (16 S. W. Rep. 868 [If-Ql]),
218 210'
Myers v. Callahan (5 Fed. Rep. 726) '816
V. Dean (Com. PI.) (32 N. Y. Supp. 237). 67
V. Hobbs (57 Ala. 175) 654
V. Holborn (N. J.) (.33 Atl. Rep. 389) .... 838
V. Rosenbach (25 N. Y. Supp. 521) 129'
V. Sari (30 L J. Q. B. 9 [I860]) 123, 547
V. St. Andrews & Q. R. Co. (5 Allen [N.
B.] 577 [1863]) 595
V. Tibballs (Cal.) (13 Pac. Rep. 695
[1887]) 621
N.
Nash V. Hoxie (.59 Wis. 384) 695 -
V. St. Paul (11 Minn. 174 [1866]) ...52. 156, 157
Nashville. City of, v. Sutherland (Tenn.) (29 S.
W. Rep. 228) 468, 701
Nason Mfg. Co. v. Stephens (.50 Hun 606 [1888]) 689-
Nate V, Hamilton Ins. Co. (6 Gray 174) .. . . •«6, 344
National Waterworks Co. v School Dist. No.
7 (Cir. Ct ) (48 Fed. Rep. 52.3) 125
National Peather-Duster Co. v. Hibbard (9
Fed. Rep. 558 [1881]) 825
Naughton v. Stagg (4 Mo. App. 271 [1877]) .... 885-
N. Beers v. Milwaukee Co. (Wis.) (67 N. W.
Rep. 936) 582
Nebraska City v. Neb. Gas Co. (9 Neb. 839).163, 164
Neenan v. Donoghue (50 Mo. 493) 4.39
Neff V. Cincinnati (32 Ohio St. 21.5) 877, 891
Nelson v. Harrington (Wis.) (40 N. W. Rep.
228 [1889]) 836-
V. IMorse (52 Wis. 240) 694
V. New York (5 N. Y. Supp. 688; s. c,
29 N. E. Rep. 814).. 45, 46, 141, 143, 149-
V. Pickwick (30 111. App. 333) ... 324
V. Pyramid H. P. Co. (Wash.) (30 Pac.
■ Rep. 1096) 59
V. Spoouer (2 F. & F. 61.3) 812. 813
Nene Val. Drainage Commrs. v. Dunkley (4
Ch. D. 1) 215
Nesbitt V. Louisville. C. & C. R. Co. (S. C.) (2
Spears 697) 385, 563, 569, 623, 679
Neudeck v. Grand Lodge (1 Mo. App. 330) .... 887
Nevin v. Craig (Minn.) (65 N. W. Rep. 86) 416
V. Roach (Ky.) (5 S. W. Ref). 546 [1887]). 507
Newark, City of, v. Bomel (N. J.) (31 Atl. Rep.
408) 163
Newcomb v. Wood (97 U. S. 581 [1878]). 530
New Eng Iron Co. v. Gilbert El. R. Co. (91 N.
Y. 1.5.3) 216 218, 219'
N. E. Loan & Trust Co. v. Brown (1 Mo. App.
Rf^p. 62) 794
N. E. Monument Co. v. Johnson (Pa.) (22 Atl.
Reptr 974) 816, Sir
New Haven, City of, v. Sargent (38 Conn. 50). 266-
TABLE OF CASES.
Ixv
New Haven W. Co. v. Redfleld (Conn.) (18 Atl.
Rep. 978) 575
Newitt, Ex Parte, (16 Ch. Div. b'Z-Z) 75i4
New Jersey Traction Co. v. Brabban (N. J.)
(3i Atl. Rep. 217) , 892a
Newlaiiv. Dunham (60 111.233) 426,433, 894
Newlmd v. Douglass (2 Johns. [N. Y.] (62
[180)]) 428,487,491
Newman, In re L. R. (4 Ch. D. 724) 317
Newman v. Fowler (37 N. J. L. 89, 8 Vroom
1874]) 244,837, 840
■u. Reagati (63 Ga. 755) 805
V. Sylvester (42 Ind. 1U6) 856
Newman Lumb. Co. v, Purdum (41 Ohio St.
.373) 674,677
New Orleans v. N. O. & N. E. R. Co. (La.) (10
So. Rep. 4U1 [1892]) .. ..706, 707
V. New Orleans W. W. Co. (12
Sup. Ct, Kep, 142) 46
N. O., Mobile & C. R. Co. v. Manning (15 Wal.
649 [1872]) .£65, 667
N. O., B. R. & M. R. R. Co. v. Norwood (62
Miss. 565 [1885]) 657
New Orleans, etc., R. Co. v. i\eese(61 Miss. 581),
657, 814, 843
Newport v. Batesville & B. Ry. Co. (Ark.) (24
S. W. Rep. 427) 43,45
Newton v. Highland Imp. Co. (Minn.) (64 N.
W. Rep. 1146) 414,687
New York, etc., R. Co., In re (98 N. Y. 447), . . . 344
New York, City of, v. Brady (Sup.) (30 N. Y. S.
1121) 638
New York v. Hamm (Com. PI.) (24 N. Y. Supp.
730) 390
N. Y. & N. H. A. Sprinkler Co. v. Andrews (23
N. Y. SuDp. 998) 415,428,438,439
N. Y. P. E." P. S., xMatter of (75 N. Y. 324 [18t8]), 54
Niagara F. Ins. Co. v. Whittaker (21 Wis. 329),
800, 801
Niagara Falls Susp. Edge. v. Bachman (4
Lansing 423) 266
Niagara lladiator Co. v. Meyers (Sup.) (40 N.
Y. Supp. 572) 823
Niblo V. Binsse (1 Keyes [N. Y.] 476, 3 Abb. Pr.
375) 438, 676
Nichols V. Moody (22 Barb. [N. Y.] 611) 855
V. Pitman L. R. (26 Ch. D. 374) 816
V. Scranton Steel Co. (N. Y. App.) (33
N. E. Rep. 561) 38
V. State (Tex.) (32 S. W. Rep. 452),
46, 156, 157, 557
Nicholson Pavement Co. v. Painter (35 Cal.
669) 163
Nickerson v. Atchison, T. & S. F. R. Co. (17
Fed. Rep. 408 [1888]) 580
Nies V. Broadhead (27 N. Y. Supp. 52) 880
Nilson V. Jonesboro (\rk.) (20 S, VV. Rep. 1093). 318
V. Morse (52 Wis.' 240) 696
Niver V. Nasli (Wash.) (35 Pac. Rep. 380)... 243, 837
Nixon V. Taff Vale R. R. Co. (7 Hare 136).. 425, 549
Noble v. Ward (L. R. 2 Exch. 135) 564
Noblin V. State (Ala ) (14 So. Rep. 767) . . 883
Noel V. San Antonio (Tex.) (33 S. W. Rep. 263). 141
Nolan u. Thompson (11 Daly N Y. 314) 801
V. Whitney (88 N. Y. 648 [1882]),
439. 442. 697, 698, 700. 701, 702
Noll man v. Evenson (N. D.) (65 N. W. Rep.
686) 675, 677. 701
Nolton V. Western R. Corp. (15 N, Y. 444
[1857]) 8G6
Norcross v. Clark (53 Me. 163) 669
Norfolk & W. R. Co. v. Mills (Va.) (22 S. E.
Rep. 5.56) 430,435
Norment v. Fastnaught (1 McArthur 515) 890
Norrington v. Wright (1 15 U. S. 188) 674
Nonis V. Day (10 L. J. N. S. 43) 514
V. Haggin (28 Fed. Rep. 275) 119
North V. Williams (Pa.) (13 Atl. Rep. 723
[1888]) 794
North Amer. Ace. Ass'n v. Woodson (C. C. A.)
(61 Fed. Rep. 689) 887
Northampton Gas Co. v. Parnell (15 C. B. 630). 348
North British Rv. Co. v. Tod (12 CI. & Fin. 722). 218
N. Chicago St. R. Co. v. Cheetham (58 III. App.
318) 40, 892«
Northern Pac. R. Co. v. Beaton (C. C. A.) (64
Fed. Rep. 563) 866
V. Territory (Wash.) (13
Pac.Rep.604[1887]). 84
V. Urlin (15 S. Ct, Rep.
840) 88a
North Lebanon R. Co. v. McGrann (33 Pa. St.
530) 412,415,438,506.
Northwest Baptist Ch. v. Doe (Tex.) (35 S. W.
Rep. 145) 428
Northwestern G. L. Co. v. Channel (Minn.) (55
N. W. Rep. 121) 524
Norton v. Brophy (56 111. App. 661) 230
r. Browne (89 lud. 333) 572
V. Clark (85 Me. 3.57). 762
V. Fancher (Sup.) (36 N. Y. Supp. 1032). 678
V. HeiTon (Ryan & Moody 229) 30
Norwalk Gaslight Co. v. Norwalk (Conn.) (28
Atl. Rep. 32) 557. 643, 644. 659, 664, 667
Norwell v. Wright (3 Allen [Mass.] 166) 858-
Nowlin V. Payne (40 la. 166) 317
Nourse v. United States (25 Ct. of CI. 7),
323, 690, 694
Noury v. Lord (2 Keyes [N. Y.] 617 [1866]),
187, 811, 812, 814
Noves V. Phillips (60 N. Y. 408) 316, 317
N. P. Perrine Co. v. Quackenbush (Cal.) (38
Pac. Rep. 533) 154, 163, 164, 168
NuUelly v. Southern Iron Co. (Tenn.) (29 S. W.
Rep. 361) 445.
O.
Oakden v. Pike (34 L. J, Ch. 620) 321
Oakes v. Cattaraugus Water Co. {N. Y.) (38 N.
E. Rep. 461) 81
V. Moore (24 Me. 214) 428-
Oakwood Retreat Assn. v. Rathbone (Wis.) (26
N. W. Rep. 742 [1886]) 396, 675
Oatesu. Bromil (1 Salk. 75) 47a
Oberlies v. Bullinger (132 N. Y. 598, 75 Hun [N.
Y.] 248, 11 N. Y. Supp. 264, 27 N. Y. Supp.
19) 325, 370, 412, 702, 72&
O'Brien v. Anniston Pipe Works (Ala.) (9 So.
Rep. 415 [1891]) 318.
V. Fowler (Md.)(ll Atl. Rep. 174 [1888]),
561. 565, 567
V. Mayor, etc., of New York (15 N. Y.
Supp. 520 [1891], s. c. 65 Hun 112
[1892], on appeal 35 N. E. Rep.
323 [1893], s. c. 139 N. Y. 543 [1893],
142 N. Y. [1894]). ,428, 430, 435, 439,
457, 460, 461, 468, 482, 490, 509, 514,
516, 545, .553, .554, 5.55, 578, 587, 595, 849a.
V. Sexton (111.) (30 N. E. Rep. 461
[1892]) • 121
O'Connor v. Henderson Bdge. Co. (Ky.) (27 S.
W. Rep. 251 [1894]) 320, 731, 733
V. Smith (84 Tex, 232, 19 S. W. Rep.
168 [1892]),
326, 526, 684, 689, 693, 696, 755
O'Connors V. Hurley (147 Mass. 14.5) 70a
O'Dea V. Winona (41 Minn. 424 [1889]),
390, 445, 469, 584, 698
O'Donnellr, Chnton (145 Mass. 461) 561, 567
V. Forrest (La.) (1 1 So, Rep. 245) .... 405
V. Henry (44 La. Ann. 845) 405
V.Rosenberg (14 Abb. Pr, [N, S.] 59) 3l8
Ogden V. Alexander (N. Y. App.) (35 N. E.
Rep. 638) 739, 764
V, United States (60 Fed. Rep. 72.5) .... 428
O'Harra v. New Orleans (30 La. Ann, [Ft. 1] 1.52) 554
Ohio & M. Rv. Co. V. Crumbo (Ind.) (30 N. E,
Rep. 434 [1892], 4 Ind. App. 4.56) 595
Ohio R. R. V. Yohe (51 Ind. 181) 670
O'Keefe v. St. Francis' Church ill) Conn. .551
[1890]). . . .326. 545. 553. 5.58, 577, 693, 739, 888, 891
Olcott V. Tioga R, Co. (27 N. Y. 546-560) 377
Old Dom. G. Co. v. Dist. of Columbia (20 Ct. of
CI. 127) 17,757
Old S. Land Co. v. Com. U. Assur. Co. (Cal.)
5 Pac. Rep. 232) 345
O'Leary V. Bd.of Ed. (93N. Y. .541) 805
Oleson V. City of Plattsmouth (Neb.) (52 N, W.
Rep.848) 59
Ixvi
TABLE OF CASES.
Ol instead v. Beale (19 Pick. [Mass.] 528) 7u;i
Olsen V. Meyer (Neb.) (64 N. VV. Rep. 954).. . . 644
Olson V. Nonenmacher (Minn.) (65 N. VV. Rep.
642) 690
Omalm v. Hammond (94 U. S. 98 [1877], s. c. 5
Cent. Law Jour. 168) 446,467
Omaha C. C. & L. Co. v. Fay (Neb.) (55 N. W.
Rep.211) 256,277
Omaha & R. V. Ry. Co. v. Crow (Neb.) (66 N.
W. Rep. 21) 865
Onderdonk v. Gray (19 N. J. Eq. 65) 561
O'Reilly v. Kerns (52 Pa. St. 214 [1866]).
395, 397, 399, 412, 415, 445, 572, 577,
' 583 595 721
Long Island R. Co. (Sup.) (44 N. y'.
Supp. 264 [1897]) 641a
Oram v. Keelty (Md.) (36 Atl. Rep. 1030 [1897]),
697, 703
Orman v. Buel (Neb.) (59 N W. Rep. 515) 62
Ormes v. Beadle (2 GifF. 166, 206 [i860]) . . . .428, 439
Ormsby v. Ihmsen (34 Pa. St. 462) 890
O'Rourke v. Burke (Neb.) (63 N. W. Rep. 17). . 576
Orr V. Qnimby (54 N. H. 590 [1874]) 507
V. Nagle (Sup.) (33 N. Y. Supp. 879) 758
Orvis V. Wells F. & Co. (C. C. A.) (73 Fed. Rep.
110) 525
Osborne v. O'Reilly (42 N. J. Eq. 467, 9 Atl.
Rep. 209 [1887]) 69, 137. 397, 398, 559, 563, 595
Osgood V. Boston (Mass.) (43 N. E. Rep. 108). . . 35
Ottendorfer v. Fortunato (56 N. Y. Super. Ct.
495 [1889]) 719
Otis V. City of Chicago (111. Sup.) (43 N. E. Rep.
715) 154
V. United States (20 Ct. of CI. 315) . . . 230
Overhy v. Chesapeake & O. Ry. Co. (W. Va.)
16 S. E. Rep. 813) 884
Overton v. Bolton (9 Heiskell 762 [1872]) 58
Owen V. Johnson (Pa.) (34 Atl. Rep. 549) 762
Owens V. Butler Co. (40 Iowa 190) 569. 584, 678
Ox ley Stave Co. v. Coopers' International
Union of North America (C. C.) (72 Fed. Rep.
695) 804
Oxnard v. Locke (13 La. 449) 682
P.
Pacheco v. Judson Mfg. Co. (Cal.) (45 Pac.
Rep. 833) 886, 891
P<ic. Mut. Life Ins. Co. v. Fisher (Cal.) <'42 Pac.
Rep. 1.54) 862
Pacific R. Co. v. Seeley (25 Mo. 212) 84
Pac. Tele. Cable Co. v. W. Union Telegraph
Co. (.50 Fed. Rep. 493) 81
Pack V. Mayor of New York (8 N. Y. 222. 4
Seld. [1858]) 645. 66i». 661, 663, 666, 667
Packard v. Van Schaick (.58 III. ■;9) . ..412, 415, 495
Paddock V. Robinson (63 III. 99) 669
V. Stout (121 III. 571, 13 N. E. Rep. 182
[1887]) 324, 325, 724, 726
Paducah Lumber Co. v. Paducah Water Sup-
ply Co. (Ky.) (13 S. W. Rpp. 249) 645
Page V. Kreky (Sup.) (17 N. Y. Supp. 764 [1892]), 25
V. Parker (40 .\\ H. 59 [I860]) 891
V. Ward (W. N. [1869-51]) 849a
Paice V. Walker (L. R. 5 Exch. 173 [1870]) 30
Paige V. Akins (Cal.) (44 Pac. Rep. 666) 515
V. Ott (5 Denio 406) 700
V. The Fullerton Woolen Co. (27 Vt. 485
[1P54]) 797
Paine v. L. E. & L. R. Co. (1 Am. Corp. Cas.
"386, 31 Ind. 283 [1869]) 42
Painter v. Mayor (46 Pa. St. 213 [1863]),
053, 654, 658, 662
Palatine v. Krueger (111.) (12 N. E. Rep. 75
[1887]) 266
Palmer v. Breen (34 Minn. 39, 24 N. W. Rep.
322) 310, 686, 689
■ V. Cemetery (122 N. Y. 429 [1890]) 515
V. Clark (106 Mass. 373 [1871]).. 381, 382,
428, 429, 430, 432, 482, 488, 496, 502,
505, 616
V. Haverhill (2 Amer. Corp. Cas. 450; s. c,
98 Mass. 487 [1868]) 179, 187
V. Israel (Mont.) (33 Pac. Rep. 134). . , . 326
V. Stockwell (9 Gray [Mass.] 237),
324, 569, 585
Palmer V. Tingle (Ohio) (45 N. E. Rep. 313), 142. 765
Panama, etc., Tel. Co. v. India, etc., Tel.
Works Co. (L. R.) (10 Ch. App. 515) 514, 670
Pappa V. Rose (L. R.) (7 C. P. 32, 525),
844, 846, 847, 848
Pape V. Lathrop (Ind.) (46 N. E. Rep. 154
[1 897]) 803, 809, 81 9
Paradine V. Jane (Aleyn 26) 669
Parish v. Gilmore (33 Wis. 608 [1873]) 835
Park V. Viernow (16 Mo. App. 3^3 [1885]). . .611, 615
Park Fire Clay Co. v. Ott (Pa.) (30 Atl. Rep.
1040) 415,445
Parker v. Egglestou (5 Blatchf . [Ind.] 128) 474
V. Gt. Western Ry. Co. (3 Ry. Cas. 17).. 414
V. Jeflfry (Oreg.) (37 Pac. Rep. 712). ... 765
V. Scott (la ) (47N.W. Rep. 1073 [1891]),
674, 675
V. Troy & R. R. Co. (27 Vt. 766) 674
Parks V. Tippie (Tex.) (:i4 S. W. Rep. 676) 220
Parmalee v. Wilks (22 Barb. [N. Y.J 540) 59
Parmlee V. Hambleton.(24Ill. 605) 348
Parr v. Village of Greenbush (112 N. Y. 246
[1889]) 53, 157
Parson v. Sexton (4 C. B. 899) 340, 415
Parsons v. Brown (Iowa) (66 N. W. Hep. 880). . 862
Parton v. Stewart (2 Aik. [Vt.] 417) 701
Partridge v. Forsyth (29 Ala. 200) 674
V. Scott (3 M. & W. 220) 643
Pashby v. The Mayor (18 C. B. 2 [1856]).
372, 392, 395, 473, 476, 485, 5?>5
Patent Brick Co. v. Moore (70 Cal. 205). 31 6, 317, 318
Patmore r. Colburn (1 C. M. & R. 65) 573
Patrick v. R. & D. R. Co. (93 N. C. 442 [1885])... 739
Patten v. Paucoast (N. Y.) (15 N. K. Rep. 89:^).. (iJ9
Patterson v. Austin (Tex.) (39 S. W. Rep. 976). 641a
V. Camden (25 Mo. 13) 580
V. Crowther (70 .Md. 124 [1889]),
428, 617,621, 627
Pattinson v- Luckley (I,. R. 10 Exch. 330 [1875]),
2;%5, 572
Patton u. Garrett (N. C.) (21 S. E. Rep. 679)... . 429
Paul v. Cunningham (9 Pa. St. 106) 428
V. Forbes (148 Mass. 495, 628) 645
Pauling V. Pontifex (20 Law Times 126 [1852]). 188
Paulsen v. Manske (111.) (18 N. E. Rep. :.'75
[1889]) 762
Pauly jail Co. v. Hemphill County (62 Fed.
Rep. 698) 421, 429
Pavey v. Burch (3 Mo. 314 [IKM]) 6l8, 621
Pawlet V. Rutland & Wash. R. (38 Vt. 297).... 656
Pawley v. Turubull (3 GifToid 70 [1861]).
428,443.511.708.746,747
Payne v. Crawford (Ala.) (14 So. Rep. 854, 911),
473, 526, 532
V. Still (Vv^ash) (38 Pac Rep. 994) 706
Paxton V. Newton (2 Sm. & Giff. 431) 706
Peabodv v. Norfolk (98 Mass. 452) 819
Peacock v. Penson (1 1 Beav. 355, 361) 218
Pearce v. Bi-ooks (L. R 1 Exch. 213) 87
V. Langfltt (101 Pa. 507 [1883]) 95
V. Madison & J. R. Co. (21 How. [U. S]
441) 33
V. Tucker (3 F. F. 136) 256,257
Pearl v. Harris (121 Mass. 390) 345
Pearsall v. Gr. Northern Ry. Co. (C. C.) (73
Fed. Rep. 933) 142
Pearson v. Zehr (111.) (29 N. E. Rep. 854) 891
Peck V. Hutchinson (Iowa) (55 N. W. Rep. 511). 827
V. MillHi- (39 Mich. 594 [1880]) 863
Peeples v. Byrd (Ga.) (25 S. E. Rep. 677).
154. 172. 173, 177,179
P., City of, V. Bell (66 Wis. 327 [1886]) 767
Pelky V. Palmer (Mich ) (67 N. W. Rep. 561). . . 836
Pelting V. Dayton (116 N. Y. Supp. 849) 575
Pengra v. Wheeler (Oreg.) (34 Pac. Rep. 354).
Pennel v. Mayor (14 N. Y. Supp. 376 [1891]).3-;6,446
Pennie, Re (108 N. Y. 364) 1.35
Penu V. Brashear (2 Mo. App. R'-p. 1132) 794
Pa. Coal Co. v. Sanderson (94 Pa. St. 402
[1880]) : 615
Penna. Co. v. Horton (Ind. Sup.) (31 N. E.
Rep. 45) 892a
Penna. & Del. R. R. Co. v. Leufner (84 Pa. St.
168 [1877]) 868
TABLE OF CASES.
Ixvii
Penna. R. Co. v. Dolan (Ind. App.) (32 N. E.
Rep. 80:2) 105,801
V. Henderson (51 Pa. St. 315).. 865
V. Ogier (35 Pa. St. 60) 830
Pennypacker v. Jones (iU6 Pa. St. 5237) 316
People u. Adsit (2 Hill [N. Y.] 619) 854
V. Aldridge (31 N. Y. Supp. 920) 171
V. Allen (6 Wend. 486) 51
V. Angaberry (97 N. Y. 501 [1884]) 883
V. Beck (N. Y. App.) (.•i9 N. E. Rep. 80)
30 N. Y. Supp. 473) 144,810
V. Benton (7 Barb. 208 [1849]),
345, 396, 410, b32
V. Board (125 111. 9 [1888]) 487
V. Board of Aldermen of Buffalo (Sup.)
(42 N . Y. Supp. Rep. 54.^) 862
V. Bd. of Ed. (5 N. Y. Supp. 392) . 176
V. Board of Improvement (43 N. Y.
227) 138, 156
V. Brooks (Mich.) (59 N. W. Rep. 444). 892o
V. Buffalo (25 N. Y. Supp. 50, 5 Misc.
Rep. 36) 138
V. Campbell (78 N. Y. 496, 82 N. Y. 247
[1880]) 176,178,806,826
V. Chapin (N. Y.) (12 N. E. Rep. 595
[1887]) 601
V. Chill (Sup.) (39 N. Y. Supp. 372) 135
V. Commissioners (4 Neb. 150) 154
V. Contracting Board (27 N. Y. 378, 33
N. Y. 382, 46 Barb. 2M [1865]),
146, 170, 176, 177, 178
V. Croton Aq. Board (26 Barb. [N. Y.]
240, 49 Barb. 259 [1867]),
142, 144, 150, 171, 172, 176, 178, 183, 505
V. Detroit (Mich.) (2 The Reporter 244). 703
V. Dorsheimer (55 How. Pr. [N. Y.]
118) 147, 172
V. Durrant (Cal.) (48 Pac. Rep. 75
[1897]) 887
V. Edson (52 N. Y. Super Ct. 53) 859a
V. Fitch (147 N. Y. 355) 445
V. Flagg (5 Abb. Pr. [N. Y.] 232) 164
V. Gleason (121 N. Y. 631 [1890], 25 N.
E. Rep. 4 [1890], 4 N. Y. Supp. 383),
139, 140, 141, 143, 172, 179, 180
V. Harmon (Sup.) (36 N. Y. Supp. 231). 708
V. Haws (2 Am. Law Reg. [N. S.] 378). 344
V. Ins. Co. (91 N. Y. 174) 670
V. Kent (111. Sup.) (43 N. E. Rep. 760),
172, 176, 178
V. Lord (6 Hun [N. Y.] 390) 148
V. Mooney (Sup.) (38 N. Y. Supp. 495).. 172
V. Palmer (Sup.) (42 N. Y. Supp. 282). . 445
V. Powers (Midi.) (66 N. W. Rep. 215). . 762
17. Rathboiie (N. Y. App.) (40 N. E.
Rep. 395) 866
V. Remington (45 Hun 338 [1887]) 861
V. Ridgley et al. (31 111. 65) 859
V.Smith (121 N. Y. 578) 880
V. Stevens (71 N. Y. 527) 82, 148
-u. Sturtevant (P N. Y. 263) 859tt
V. Syracuse (20 N. Y. Supp. 230), (N.
Y. App.) (38 N. E. Rep. 1006, 144
N. Y. 63) 445. 446, 467
V. Thackery (Mich.) (66 N. W. Rep.
592) 891
V. Town of Campbell (Sup.) (36 N. Y.
Supp. 1062) 173
V. Vanderhoof (Mich.) (39 N. W. Rep.
28 [1888]) 875,876,887,889
V. Van Nort (05 Barb. [N. Y.] 331) .... 163
V. Waring (Sup.) (39 N. Y. Supp. 193),
134, 138
V.Willis (Sup.) (39 N. Y. Supp. 987). 171, 172
V. Yonkers (39 Barb. [N. Y.] 266). . 135, 183
People ex rel. Ins. Co. v. Nash et al. (Ill N. Y.
310) 348,451,354
People's Natl. Gas. Co. v. Braddock Wire Co.
(25 Atl. Refv. 749) 125
People's S. L. & B. Assn. v. Spears (Ind.) (17
N. E. Rep. 570 [1888]) 768
Pepr>er v. Builand (Peake N. P. Cas. 103).. 572, 573
Perine v. Standfield (Mich.) (65 N.W. Rep. 541). 689
Perkins V. Butler Co. (Neb.) (62 N.W. Rep.
308) 16
Perkins v. Giles (50 N. Y. 228, 53 Barb. 342),
427, 428, 429, 432, 436, 493
V. Locke (Tex.) (27 S. W. Rep. 783, 29
S. W. Rep. 1048) 474, 677
v. Lyman (11 Mass. 70) 316
V. N. Y. Cent. R. Co. (24 N. Y. ?90). . . 864
V. United States Electric Light (Jo.
(10 Fed. Rep. 513) .356
V. Westcoac (Colo.) (33 Pac. Rep. 139). Ill
Parkinson v. Fehlig (21 Mo App. 327 [1»80]) . . 080
V. St. Louis (4 Mo. App. 322 [187 <]),
44, 555
Pershing v. Industrial Co. (Minn.) (59 N. W.
Rep. 1084) 30
Peteler Portable Ry. Mfg. Co. v. Northwest-
ern A. Mfg. Co. (Minn.) (61 N. W. Rep.
•10:24) 891
Peterborough v. Jafifrey (6 N. H. 462, 404). . . 891
Peters v. Quebec Harbor Lommrs. (19 Can.
Sup. Ct. 085).. 3T0
Petersen v. Rawson (34 N. Y. 370, 2 Bosw. [N.
Y.] 234 [1857]) 837, 839
Peterson v. Mayor (17 N. Y. 449) 557
Pettis V. Bloomer (21 How. Pr. 317) 318
Peto V. Brighton R. Co. (I H. & M. 468) 706
Pevey v. Lumber Co. (33 Minn. 45 [1884]) 610
Peyton v. Mayor (9 B. & C. 725) 643
Pfeil V. Kemper (3 Wis. 318) 626
Phelan v. Albany, etc., R. Co. (1 Lans. [N. Y.]
258) 386, 414
V. Mayor (56 N. Y. Supr. Ct. 523 [1889],
1 19 N. Y. 86) 417, 422, 428, 436
Phelps V. Beebe (Mich.) (39 N. W. Rep. 761
[1888]) 703
V. Sheldon (13 Pick. 50) 700
Philadelphia Hyd. Wks. v. Schenck (80 Pa. St.
334 [18r6]) 242
Philadelphia, etc., R. Co. v. Phila. Tow Bt. Co.
(23 How. [U. S.] 209) 665
Phila. & Reading R. Co. v. Derby (1 Am. Law
Reg. 397 [1852]) 866
Philadelphia (The), W., & B. R. Co. v. Sebre
Howard (13 Howard Repts. 307 [1851], s. c.
1 Am. Ry. Cas. 70).. 275, 323, 324, 326, 445, 446,
556, 689, 723, 728, 730, 746, 796
Phillips V. Foxall (41 L. J. Q.- B. 293) 437
V. Gallant (62 N. Y. 256 [1875]) 91, 702
V. Starr (26 low& 349) 623
V. Wright (5 Stanbf . 342) 861
Phillips & Colby Constn. Co. v. Seymour (91
U. S. 646 [1875]) 786
Phillips, etc., Co. v. Seymour (91 U. S. 646
[1875]) 572,636,687, 690
Phoenix Fur. Co. v. Hotel Co. (C. C.) (66 Fed.
Rep. 683) 862
Phoenix Iron Co. v. The Richmond (6Mackey's
R. 180 [1887]) 219, 428, 429, 440
Phoenix Mut. L. Ins. Co. v. Walrath (16 Fed.
Rep. 161) 705
Pickard u. Schantz (Miss.) (12 So. Rep. 544) ... 20
Pickett V. Edwards (Tex.) (25 S. W. Jlep. 32) 116
Picton V. Graham (3 Des. 592) 794
Pierce v. Boston (Mass.) (41 N. E. Rep. 827) ... 891
v. Jung (10 Wis. 30) 316,318
v. Kibbee (51 Vt. 559) 76,87
V. Tenn. C. I. & R. Co. (Ala.) (19 So.
Rep. 22) 801
Pierce & B. Mfg. Co. v. Werckmeister (C. C.
A.) (72 Fed. Rep. 54) 816
Pierson v. Tyndall (Tex.) (28 S. W. Rep. 238),
837, 839
Pilie V. New Orleans (19 La. Ann. 274 [1867]). 515
Pinches v. Swedish Church (.55 Conn. 183
[1887]) 10 Atl Rep. 264. .. . . .697, 700, 701, 702, 703
Pine Bluff Water & Light Co. v. Sewer District
No. 1 (Ark.) (19 S. W. Rep. 576) 39
Pinet V. Montague (Mich.) (61 N. W. Rep. 876). 808
Pipe Co. V. Thompson (120 Mo. 221) 756
Pishkos V. Wortek (Tex.) (18 S. W. Rep. 788). . . 561
Pitcher V. Hennessy (48 N.Y. 41.5). 91
V. Lennon (Sup.) (38 N. Y. Supp.
1007) 244
Pittsburgh v. O'Neill (1 Pa. St. 342) 620
Pittsburgh, etc., R. Co. v. Cox (Oliio Sup.) (45
N.E. Rep. 641)... 86
Ixviii
TABLE OF CASES.
Pittsburgh, etc., R. Co. v. Mahonv (Ind. Sup.)
(46 N. E. Rep.
yiv) 864
r. Racer (Ind.) (38 N. 1
E. Rep. IStt).... 91
V. Sheppard (Ohio
Sup.) (46 N. E.
Rep. 61 891
Pittsburgh & T. C. Co. v. Quintrell (Tenn.) (^0
S. W. Rep. --^48) 49
701
64;^
700
483
507
108
]5>9
766
90
879
Pixler V. Nichols (8 la. 106)
rixley V. Clark (35 N. Y. o'ZO)
Plai.che V. ColOum (8 Bing, 14),
439, 670, 682, 691, 692,
Piatt V. Smith (N. Y.) (14 Johns R. 368 [1817]),
4<7,
Pleasant View Tp. v. Shawgo (Kan.) (39 Pac.
Kep. 704)
J'liinpton V. Curtis (15 Wend. [X. Y.] 336)
Poddock V. Bartlett (68 Iowa 16 [1885]) . .
Poll ion V. Mayor, etc. (47 N. Y. 666)
Poland V. Browneli (131 Mass. 138)
Police Jury v. Taylor (-2 La. Ann. 272) 678
Poling V. Ohio River R. Co. (W. Va.) (18 S. E
Rep. 782)
Pollock V. Penna. I. W. Co. (34 N. Y. Supp
129) 402, 665
Ponce v. Smith (84 Me. 266) 703
Pope V. Curie (2 Atk. 342) 816
V. Terre Haute C. & Mfg. Co. (N. Y.) (13
N. E. Rep. 592 [1887]) 310
Poplett V. Stockdale (2 C. & P. 198) 87
Portv. Russel (36 Ind. 60) 42
Porter v. Arrowhead Res. Ro. (Cal.) (35 Pac.
Rep. 146) 686, 690
V. Buckfield R. Co. (32 Maine 539
[1851]) 405.4.36,577
V. Curtis (Iowa) (65 N. W. Rep. 824) . . 801
V. Han. & St. J. R. Co. (71 Mo. 66
[1879]) 819a
V. N. Y.. L. E. & W. R. Co. (129 N.
Y. 624, .59 Hun 177 [1891]) 86, 864
V. Swan (17 N. Y. Supp. 351, 35 N. Y.
Supp. 1037) 369, 521,564,565
V. Stewart (2 Ark. 417) 326
Port Huron v. McCall (40 Mich. .565-574) 756
Post V. West Sliore R. Co. (l-'S N. Y. 581) .... 706
Potomac Steamboat Co. v. Harlan & Hollings-
worth Co. (G6 Md. 42 [1886]) 446, 468
Potter V. Berthelet (20 Fed. Rep. 240 [1884]). . . 127
V. McPherson (61 Mo. 240 [1875]) 324
V. Phoenix Ins. Co. (C. C.) (63 Fed. Rep.
382
V. Smith (103 Mass. 68)
Potts V. Henderson (2 Ind. 327) 555, 556
V. Pt. Pleasant Ld. Co. (N. J.) (8 Atl.
Rep. 109 [18S7]) 682,690
Powell V. Davett (15 East 29) 235
V. Tuttle (3 Coinst. 396) 503
Powers V. Walker (Ky.). (39 S. W. Rep. 256)... 698
V. Yonkers(114 N. Y. 145) 738
Powrie v. Kansas Pac. Ry. Co. (1 Colo. 529
[1872]) 376,377
Prader v. Natl. Masonic Accdt. Assn. (la.) (63
N. W, Rep. 601) 344
Prairie Lodge v. Smith (.58 Miss. .301) 43
Pratt V. Hudson River Railroad Co. (21 N. Y.
305 [I860]) 38,188,797
r. SwMUton (15 Vt. 147)
Prentiss v. Bates (Mich ) (50 N. W. Rep. 637) . .
Preshv. Ch. v. Hoope's. etc.. Co. (66 Md. .598
[1887] ; s. c. 7 Cent. Rep. 432) 699,
Press Pub. Co. V. Monroe (C. C. A.) (73 Fed.
Rep. 196)
Preston v. Luck L. R. (25 Ch. D. 497)
V. Syracuse (92 Hun 301, 36 N. Y.
Supp. 716) 242,439
Pretzfelder v. Merchants' Ins. Co. (N C.) (21 S.
E. Rep. 302) 438
Price V. Chicago S. F. & C. Rv. Co. (38 Fed.
Rep. 304 [1889] 390, 421, 424, 437, 445,
446. 467, 482 502, 549
V. Corpoiation (4 Hare 506-9) 707
V. Kearney C. & W. S. Co. (Neb.) (45 N.
W. R. 252 [1890]) 579, 580, 731
124
616
53
887
701
816
.796
§]
Price V. Kirk (90 Pa. St. 47 [1879]) 861, 862
r. Peper (13 Bush 42) 65
V. Price's ExecY (Ky.) (39 S. W. Rep. 429) 691
Primey V. Thompson (3 la. 74) 123
Prince v. Thomas (15 Ark. 378) 681
Prior V. Flagler (Com. PI.) (34 N. Y. Supp. 1.52) 805
Prospect Pk., etc.. R. Co. v. Coney Isd., etc.,
R. Co. (N. Y. App.) (39 N. E. Rep. 17) 706
Protestant School, ivi re (58 Barb. [N. Y.] 161) 183
Pubhc G. & S. Ex. V. West. U. Tel. Co. (16
Fed. Rep. 289) 705
Public School V. Risley's Heirs (40 Mo. 356). ... 890
Pucci V. Barusey (20 N. Y. Supp. 375, 21 N. Y.
Supp. 1099) 370, 427, 432, 623
Pulhain V. Pensoneau (33 III. 375 [1864]) . . . . 491
Pullman v. Corning (9 N. Y. 93, 14 Barb. 174),
^ „ 701, S88
Pullman P. C. Co. v. Booth (Tex.) (28 S. W.
Rep. 719) 91
Pullman Palace Car Co. v. Tex. 6i Pac. R. Co.
(11 Fed. Rep. 625 [1882]) 88
Pulsif er V. Berry (87 3Ie. 405) 627
Pye V. Faxon (Mass.) (31 N. E. Rep. 640) 641a
Q-
Quarman v. Burnett (6 M. & W. 499). . . .... 641o
Quarry Co. v. Clements (38 Ohio St. 587 [1883]),
123, 621
Queensbury v. Shebbare (2 Eden 329) 816
Quick V. Ludburrow (3 Bui. 30) 11
Quigley v. De Hass (82 Pa. St. 267 [1876]),
80, 438, 674
Quincy v. Jones (76 111. 231) 643
Quinlan v. Russell (94 N. Y. 350 [1884]) 755
Quinn v. O'Keeffe (Sup.) (41 N. Y. Supp. 116). 894
V. Parke, etc., Co. (Wash.) (37 Pac. Rep.
288) 566
V. United States (99 U. S. 30 [1878)],
324, 687, 698, 703, 731
R.
Raabe v. Squier (N. Y. App.) (42 N. E. Rep.
516) 686, 687
Rabliner v. Board of Commrs. (Ind. Supp.) (40
N. E. Rep. 1079) 168,176
Raeder v. Bensberg (6 Mo. App. 445) 862
Raffles V. Wichelhaus (Langdell's Select Cases
39) 90
Ragsdale v. Nagle (Cal.) (39 Pac. Rep. 628) ... 87
Railey v. Lanahan (34 La. Ann. 426) 808
Railroad v. Peto (1 Y. & J. 37) 372
Railroad Co. v. English (16 Pac. Rep. 82 [1887]) 107
V. Halloran (53 Tex. 46) 246
V. Ralston (41 Ohio St. 573) 84
R. R. & Baking Co. v. Skeliie (16 S. E. Rep.
657) 33
Ry. E. & P. Co. V. Bank (Sup.) (31 N. Y. Supp.
44) 38
Rami V. Mather (11 Cush. 1. 59 Am. Dec. 1^1).. 122
V. Redington (13 N. H. 72) 428
Randall v. Van Vechten (19 Johns. [N. Y.]) 60 31
Randegger v. Holmes (31 N. Y. 679 [1866]) ... 402
Randel v. Chesp. & Del. Canal Co. (1 Harring-
ton [Del.] 2.3.3-322 [1833]),
348, 417, 421. 561, 682, 720. 721, 723, 726, 744
Randell v. Trimmen (18 C. B. 786 [1856]),
426, 553, 856
Randolph v. Adams (2 W. Va. 519) 890
Randolph Co. v. Jones (1 Breese [111.] 103) 51
Ranger v. Gt. West. 29 Ry. (5 H. of L. Cas. 71
[1854], 3 Rwy. Cas. 298) . . .318, 341, 343, 364,
.365. 438. 4.54, 506, 509, 510, 572. 720, 838
Rankin v. Schaeflfer (4 Mo. App. 108 [1877]).121, 836
V. Wood worth (3 P. & W. [Pa.] 48).... 310
Rapley v. Klugb (S. C.) (18 S. E. Rep. 680) 890
Rapson V. Cubitt(9M. & W. 710) .. 656
Rathbun v. Thurston Co. (8 Wash. 238) 691
Rauer v. Lowe (107 Cal. 229, 40 Pac. Rep. 337
[1895]) .. 507,853
Raven v. Smith (Sup.) (33 N. Y. Supp. 972) . . . 682
Rawson v. Clark (70 III. 656 [1873]). . . . 395, 438, 676
TABLE OF CASES,
Ixix
Rayburn v. Comstock (Mich.) (45 N. W. Rep.
378 [1890]) 688
Raymer v. Stone (2 Eden 128) 706
Raynor v. Drew (Cal.) (13 Pac. Rep. 866) 105
Rayuer v. Linthorne (2 C. & P. 124) 7!J5
Rea, Appeal of (27 Alb. Law Jour. 138) 345
Read v. Dunsmore (9 C. & P. 588) 804
V. Hutchius (71 Me. 590 [1880]) 67, 563
Reading & P. R. Co. v. Balthaser (Pa.) (13 Atl.
Hep. 294 [1888]) 885
Reast V. Donald (Tex.) (19 S. W. Rep. 795) 885
Re b man v. San Gabriel Val. Land & Water Co.
(Cal.) (30 Pac. Rep. 564) 1
Rector v. McDermott (Ark.) (13 S. W. Rep. 334
[1890]) 257, 703, 704, 720
V. Pierce (3 Thomp. & C. [N. Y.] 416).. 854
Rector, etc., v. Wood (Ore.) (34 Pac. Rep. 18) . 707
Reddin v. Gates (52 la. 210) 880
Ree V. Ins. Co. (138 Mass. 572) 405
Reed v. Board (4 N. Y. 24) 69, 701
V. Brewer (Tex.) (36 S. W. Rep. 99, 37 S.
W. Rep. 418) 70,87
Reedie v. Lond. & N. W. Ry. Co. (4 Wels.,
Hurl. & Gord. 244, 4 Exch. 244),
641, 641a, 666, 667
Reedy v. Smith (42 Cal. 245) 310, 796
Rees V. Lines (8 Car. & P. 126) 567
V. Pettizer (75 III. 47.5) 816
Reese v. Reese (90 Pa. St. 89 [1879]) 891
Reeve v. Bank (N. J.) (23 Atl. Rep. 853) 30
, Reeves v. Barlow (L. R. 12 Q. B. D. 436 [1884]),
272 273
V. McGIochlin (2 Mo. App. Rep. 1154). .' 524
Regina v. Cimon (23 Canada Sup. Ct. 62) 395
V. Starrs (17 Can. Sup. Ct. 118),
379 395 414 553
Reichard v. Warren Co. (31 Iowa 381)'. ...'....' 557
Reichenbach v. Sage (Wash.) (43 Pac. Rep.
354) 318,324
Reid Ice Cream Co. v. Stephens (62 111. App.
331) 807
Reier v. Detroit St. & Sp. Wks. (Mich.) (67 N.
W. Rep. 120) 662
Reilly v. City of Albany (112 N. Y. 30 [1889]),
445, 446
V. Daly (Pa.) (28 Atl. Rep. 498) 794
V. Jones (1 Bing. 302) 320
V. Lee (61 Hun [N. Y.] 627, 16 N. Y.
Supp. 313 [1891]) 481, 506
V. Mayor (111 N. Y. 473, 54 N. Y. Super.
Ct. 463, 18 N. E. Rep. 623 [1889]),
54, 149, 154
Reischenbach v. Sage (Wash.) (43 Pac. Rep.
354) 678
Rennie v. Wyiin (4 Exch. 691 [1849]) 814
Reus V. Grand Rapids (73 Mich. 237, 41 N. W.
Rep. 263 [1889]) 324, 428, 553, 554, 595
Renton v. Monnier (77 Cal. 449) 16, 380, 849a
Reusch V. Amer. Brew. Assn. (44 La. Ann. 1111,
11 So. Rep. 719) 187
Reuting v. City of Titusville (Pa. Sup.) (34 Atl. '
Rep. 916). 173, 507
Rex V. Peto (1 Y. & J. 37) 379, 552, 553
Reynolds v. Jordan (6 Cal. 108 [1856]) 400, 619
V. Cal Iwell (51 Pa. St. 298 [1865]),
407, 41.5, 4-.'l, 428, 445, 482
t7. Nelson (6 Wend. 20) .. .. '39"
V. Van Beuren (31 N. Y. Supp. 827) . . 885
Rhodes v. Cleveland Roll. Mill. Co. (17 Fed.
Rep. 406)... 124
V. Thomas (Ind.) (3 Carter 638) 567
Rice V. Board of Trustees (Cal.) (40 Pac. Rep. •
551) 152
V. Candle (71 Ga. 605) 695
V. Roberts (24 Wis. 461) 106
V. Williams (32 Fed. Rep. 437 [1887]) 87
Rich V. City of Minneapolis (37 Alb. Law Jour.
58[1887]) 266
Richard v. Stanton (16 Wend. [N. Y.] 25) 94
V. Warren Co. (31 Iowa 381) 557
Richards v. May (10 Q. B. D. 400 [1883]).545, 552, 595
Kichardson v. Abendroth (43 Barb. 162) 863
V. Anderson (1 Camp. 43) 553
V. Grant Co. (Ind.) (27 Fed. Rep.
495 [1883]) 47.143
Richardson v. Mahon (L. R. 4 Ir. C. P. 486). 407, 468
V, Shaw (1 Mo. App. 234) 677
Richardson & Co. v. Hampton (la.) (31 N. W.
Rep. 871) 563
Richardson Co. v. School Dist. (Neb.) (64 N.W.
Rep. 218) 31
Richlands, etc., Co. v. Hiltebeitel (Va.) (22 S.
E Rep. 806) 620
Richmond v. Robinson (12 Mich. 193) 317
Richmqnd & D. R. Co. v. Hissong (Ala.) (13 So.
Rep. 209)... 876
Richter v. Meyer (Ind.) (31 N. E. Rep. 582) 695
Ricker v. Collins (81 Tex. 662, 17 S. W. Rep.
378 [1891]) 384, 390, 445, 482
V. Cutter (8 Gray 248) 223
>u. Fairbanks (40 Me. 43 [1855]) 730
Ricketts v. Joliflf (62 Miss. 440 [1884]) 25
Ridgway v. Grace (Com. PI.) (21 N. Y. Supp.
61
934).
Rigby V. Bristol (29 L. J. Exch. 359)
Rigdon V. Conley (111.) (30 N. E. Rep. 1060, 31
111. App. 630).,
Rigney v. Dutton (C. C.) (77 Fed. Rep. 175) ....
Riley v. Black (16 N. Y. Supp. 206 [1891])
V. Brooklyn (56 Barb. [N. Y.] 559)
V. Hicks (Ga.) (4 S. E. Rep. 173)
V. State Line Steamship Co. (29 La. Ann.
79)
Rim V. Electric P. Co. (3 Apo. Div. [N. Y.] 305
[Sup.], 38 N. Y. Supp. 345 [1896])
Ripley Co. v. Hill (Ind.) (16 N. E. Rep. 156
[1888])
Rippe V. C. D. & M. R. Co. (23 Minn. 18 [1876]).
RisJey v. I. B. & W. Ry. Co. (1 Hun 202 [1874]).
V. Smith (64 N. Y. 576 [1876])
Rison V. Moon (Va.) (22 S. E. Rep. 165) 348,
Ritchie v. Dist. of Columbia (18 Ct. of CI. 78). .
Ritters' Appeal (9 P. F. Sm. 9)
Robbins v. Chicago (4 Wallace 679)
Robbins v. Mount (33 How. Pr. 24 [1867])
Robert v. Sadler (N. Y.) (10 N. E. Rep. 426
[1887])
Roberts v. Berry (2 DeG. M. & G. 284)
V. Brett (6 C. B. N. S. 635)
V. Bury Commrs. (L. R. 4 C. P. 310,
5 C. P. 325), 397, 689, 720. 724, 733,
V. Drehmer (Neb.) (59 N. W. Rep. CI 1).
V. Havelock (3 B. & Ad. 404)
V. Minneapolis Th. Mch. Co. (S. D.) (67
N. W.Rep.607)
V. Myers (23 Law Rep. 396)
V. The Loan & Abstract Co. (63 Iowa
76 [1884])
V. Watkins (32 L. J. [N. S.] C. P. 291
[1863], s. c. 14 C. B. [N. S.] 592). ..
V. Wilkinson (34 Mich. 129)
Robertson v. Lion Ins. Co. (C. C.) (73 Fed. Rep.
928)
Robinson v. Baird (Pa.) (30 Atl. Rep. 1010). 475,
V. Campbell (47 Iowa 625 [1878])
V. Chamberlain (34 N. Y. 389 [1866]),
180,
V. Davidson L. R. (6 Exch. 269)
V. Donahoo (Ga.) (25 S. E. Rep. 491).
V. Fiske (25 Me, 401)
V. Grimes (33 N, Y. Supp. 291)
V. Hyer (Fla.) (17 So. Rep. 745)
V. Lake Shore & M. S. Ry. Co
(Mich.) (61 N. W. Rep. 1014) ....
V. MoUett (L. R. 7 H. L. 802) .
V. Parish (62 111. 130 [1871])
V. Patterson (Mich.) (39 N. W. Rep.
21 [1888]) ..42
V. Rohr (Wis.) (40 N. W. Rep. 668
[1888])
V. Shanks (Ind.) (20 N. E. Rep. 713
[1889]) 437,
V. Snyder (25 Peun. St. 203)
V. United States (13 Wall. 363 [1871]),
623,
V Webb (11 Bush 464 [1875])
Robinson & Rea Mfsr. Co. v. Mellon (139 Pa. St.
257 [1891], 21 Atl. Rep. 91 [1890]) 483, 485,
Robson V. Drummond (2 B. & A. D. 303),
296, 688,
678
816
583
584
795
657
862
429
891
42
66
349
757
25
641
24
266
326
169
746
691
674
696
818
836
473
69
427
552
836
854
10
794
428
629
561
325
553
691
, 74
180
491
677
627
667
487
Ixx
TABLE OF CASES.
Robson V. Godfrey, Holt N. P. Cas. 236 (1
Stark. 275) bTi, 573
V. Miss. R. Log. Co. (61 Fed. 893) 678
Rochester V. Chester (3 N. H. 349, 365) B91
Rochester VV. Ld. Co. v. Rochester (3 Comst.
[N. Y ] 463 [185U]) ii47, 248
RockcHffe v. Pearce (1 F. & F. 300) 574
Rocklaml. Mt. D. & S. S. B. Co. v. Fessenden
(.Me.) (8 Atl. Rep. 550 [1H87]) 629
Rodrmer v. Gonder (9 Gill [Aid.] 288). . . . 739
Roeder v. Benssberg (6 Mo. App. 445) 814
Roiieriquez v. State (Tex.) (22 S. W. Rep. 978). 879
Rodick V. Gaudeil (1 De G. M. & G. 763) 295
Roenit^r v. Striker (21 N. Y. Supp. 1090) 640a
Roesuer v. Herman (3 Fed. Rep. 78-.') b64
R letiingers v. United States (26 U. S. Ct. of
CI. o'JI [1891]) 584,684
Rogers V. Allen (47 N. H. 529) 627
V. Florence R. Co. (S. Car.) (9 S. E.
Rep. 1059 [1889], s. c. 40 Alb. L.
Jour. 223) 667
V. Hogaii (58 Mt^. 305 [1871]) 601
V.Rogers (139 Mass. 440) 573
V. Straiib (26 N. Y. Supp. 1066) 124
V. Walsh (12 Neb. 28) 65, 90
Rohr V. Baker (13 Orep. 350 [1886]) 602
Rohrnian v. Steese (9 Phila. ISi) 240
Roloson V. Carson (8 Md. 208 [1855]),
432, 433, 436, 498,1527
Rome & D. R. Co. v. Chasteen (AJa.) (7 So.
Rep. 94) 654
Romeyn v. Sickles (108 N. Y. 650 [1888]) 812
Roosevelt v. Thurman (1 Johns. Ch. 220 [1814]). 486
Roosevelt H. v. N. Y. El. R. Co. (21 N. Y. Supp.
205) 880
Root et al. v. Johnson (26 Vt. 64) 127
Ropes V. Arnold (30 N. Y. Supp. 997) 17
Roreback v. Penna. Co. (Conn.) (20 Atl. Rep.
465 [1890]) 887
^ose V. Des Moines R. (39 Iowa 246, 20 Am.
Ry. Rep. 320) 86
V. Eclipse Carb. Co. (60 Mo. App. 28) ... 125
V. O'Riley (1 1 1 Mass. 57 [1872]) .• . . . 702
V. Trestrail (1 Mo. App. Rep's 540) . ... 726
Rosenberger v. Pacific Coast Ry. Co. (Cal.) (43
Pac. Rep. 963). ... 809
Rossv. Bd. of Ed. (42 0hioSt. 374) 173
V. IMcArthur (85 Iowa 203, 52 N. W. Rep.
125) 385.428,445
V. N. Y. C. & H. R. R. (5 Hun 488 [1875]).. 644
V. Stackhouse (114 Ind. 200 [1887]) ... 174
V. Union Pac. R Co. (1 Woolw. [U. S.] 26). 706
Rossiter r. Cooper (23 Vt. 522) 340
Rossvallv V. City of New Orleans (19 La. Ann.
7[l867]) 720,744
Roth well u. Dean (1 Mo. Rep. 309) 675
Rourke v. W. M. Colliery Co. (1 C. P. D. 556).. 655
Rousseau v. Poitras (62 111. App. 103) 473
Rowe V. Addison (34 N. H. 306, 312) 853, 858
Rov V. Boteler (40 Mo. App. 213. 224') .. . .477, 478
Roval Ins, Co. v. Parlin & O. Co. (Tex.) (34 S.
W. Rep. 401) -428
Rude V. Mitchel (97 Mo. 365, 11 S. W. Rep. 225
[1889]) 439. 564,595
Ruege V. Gates (Wis.) (38 N. W. Rep. 181 [1888]) 559
Rug:gu. Moore (110 Pa. 236) . .674
Rulge V. Gates (Wis.) (38 N. W. Rep. 181 [1881]) 69
Rulof V. People of N. Y. (213) 880
Rush V Able (90 Pa. St. 153) 862
V. Warner (12 N. Y. Supp. 2) 702
Rushforth v. Hadfield (7 East 224) 611
Rusling V Union Pipe & Const. Co. (Sup.) (39
N. Y. Supp. 216) 414,421,686
Russell V. Barrv (115 Mass. 300 [1874]) 697
V. Buckhout (Sup.) (34 N. Y. Supp 271) 10
V. Horn, etc., Mfg. Co. (Neb.) (59 N. W.
Rep. 901) 704
V. Sa Da Bandeira (13 C. H. [N. S.] 149).
324, 478, 545, 546, 670
V. Seery (Kan.) (.35 Pac. Rep. 812).. 429, .526
Byan v. Blount (1 Dev. Eq. 382) 436
V. Curran (64Tnd. 34.'i) 6.54
V. Fowler (24 N. Y. 4i0) b41
V. Lynch (68 111. 160) 40
V. Rogers CCal.) (31 Pac. Rep. 244) 678
Ryder v. Einsey (Minn.) (64 N. W. Rep. 91),
244, 643, 644
Rylands v. Fletcher (L. R. 3 H. of L. 106) .. . . 643
S.
Sadler v. Eureka Co. Commrs. (15 Nev. 39) . . 161
V. Henlock (4 El. & Bl. 570) 654, 655
Safety Insulated Wire and Cable Co. v. Balti-
more (C. C. A.) (66 Fed. Rep. 140) 183
Sage V. Central R. Co. (99 U. S. :^34) 135
Saginaw Gas & Light Co. v. Saginaw (U. S.
Cir. Ct. [.Mich.], 22 The Reptr. 579 [1886]). . . . 81
Sainter V. Ferguson (7 C. B. 716) . 3l6
St. AlbausBk. v. Dillon (30 Vt. 122) 20
St. Claw V. Bowles (9 B. & C. 92) 697
St. Helen's Mill Co. (3 Sawy. 88) 555
St. Johns & H. R. Co. v. Shalley (Fla.) (14 So.
Rep. 890) 667
St. John V. Potter (Com. PI ) (19 N. Y. Supp. •
230) 370,397, 569, .591
St. Joseph I. Co. V. Halverson (48 Mo. App. 383) 445
St. L. V. McDonald (10 Mo. 609) 670
v.Von Phul (Mo. Sup.)(34 S.W.Rep. 843)
17, 756. 765
St. L. & C. Ry. Co. v.Drennan (26 111. App. 263
[1887]) 275
St. L. & P. R. Co. V. Kerr (111.) (:J8 N. F. Rep.
638) 421. 440, 445
St. L. & S.F. Ry. Co. v. Bradley (54 Fed. Rep.
630) 883
St. L., etc.. R. Co. V. Willis (33 Kan. 330)... 663, 66ft
St.L.& T.Ry. V.Johnston (Tex.) (15 S.W.Rep.
104 [1891]) 891
St. L.. etc., Ry. Co. v. Yonley (Ark.). (18 S. W.
Rep. 383) 654
St. L. B. & J. Co. V. St. L. Brew. Assn. (Mo.)
(31 S. W. Rep. 765) 580
St. Louis G. L. Co. v. City of St.L. (46 Mo. 121) 580
St. L.,I. M. & S. Ry. V. Lyman (Ark.) (22 S. W.
Rep. 170, 213 . . . 891
St. Mary's Market Co. v. New Orleans (La.) (16
So. Rep. 831 767
St. Martin v. Thrasher (40 Vt. 461 [1868] . . . . 522
St. P. & N. P. Rv. Co. V. Bradbury (42 Minn.
222). (44 N. W. Rep. 1 [1890]) 428, 589
St. Paul V. Seitz (:yMinn. 297) 654
St. Paul Water Co. v. Ware (16 Wall 566) .... 638
Salb V. Campbell (Wis.) (27 N. W. Rep. 45) . . 99
Salt Creek v. Bridge Co. (Kan.) (33 Pac. Rep.
30;i 45
Salters v. Ralph (15 Abb. Pr. 273) 720
Salvin v. N. Braiicepeth Coal Co. (L. R. 9 Ch.
App. 705 [1874]) 86»
Saniuell v. Howarth (3 Mer. Ch. 272) 20
Sanborn Map & Pub. Co. v. Dakin Pub. Co. (39
Fed. Rep. -.^66) 82?
Sanders v. Hutchinson (26 111. 633 [1887]).
259, 370, 445. 479, 877
V. Pottlitzer Bros. Fruit Co. (N. Y.
■ App.) (39 N. E. Rep. 7.5) 91 , 797
Sanderson v. Cockersmoiith, etc., Ry. Co. (11
Beav.497) 70&
V. Pa. C. Co. (86 Pa. St. 401) 615
Sands v. Potter (III. Sup.) (46 N. E. Rep. 282), 25, 691
Sanford v. Commercial T. Mut. Ace. Assn.
(Sup.) (33 N. Y. Sup. 512), (N. Y.
App.) (41 N. E. Rep. 694) 344
V. Emery (34 III. 45S)
V. 1st Natl. Bank (Iowa) (63 N. W.
Rep. 4.o9^ 316, 31»
• V. Pawtucket St. Ry. Co. (R. I.) (35
Atl. Rep. 67) 646,654
v. Rawlings (43 111. 92) 627
V. Sanford (40 Hun (N. Y.) 540) .. . . 859a
Sang V. Duluth (Minn.) (59 N. W. Rep. 878)..76. 68^
Santa Cruz v. Euright (Cal.) (30 Pac. Rep. 197) 883
Santa Cruz Pav. Co. v. Heaton (Cal.) (38 Pac.
Rep. 693) 51,138.220
Santa Cruz Rock Pavement Co. v. Broderick
(Cal.) (45 Pac. Rep. 863) 138,141
S.ules V. Sharlow (Dak.) (37 N. W. Rep. 7^
[1888]
Sarony v. Burrow Giles Lith. Co. (17 Fed. Rep.
591)
749
157
103
81»
TABLE OF CA8E8.
Ixxi
Saueelito Ld. Co. v. C. U. A. Co. (66 Cal. 253
[1884J 345
Sauer v. City of New York (Sup.) (41 N. Y..
Supp. 957) 638
Saunders v. Clark (29 Cal. 299) ... . 127, 2-.J7, 580
Sault Ste. Marie v. Van Deusen (40 Mich. 429) 43, 142
Savauuaii, etc., R. Co. v. Decker (Ga.) (Jl S. E.
Rep. 372) . 530
Savannali & W. R. Co. v. Phillips (Ga.) (17 S.
E. Rep. 82) ... 664
Saver v. Nichols (5 Cal. 487) -. 30
Sawtelie v. Drew (12i Mass. 2*8) ' 627
Sawtells V. Howard (Mich.) (02 N. W. Rep. 156) 370
Saxon u. Wood (Ind.)(-^ON. E. Rep. ■;97) 87
Saxton V. Sieberlmg (Oiiio) (29 N. E. Rep. 179). 148
V. Texas. S. b". & N. R. Co. ^N. M.) (16
Pac. Rep. 851 [188S]) 32
Sayler v. Harrisburg (87 Pa. St. 216 [1878]) .... 218
Sayre v. Mocre (1 East 361) 822
Sayre Lumb. Co. v. Uniou Bank (Colo. App.)
(41 Pac. Rep. 844) 17,758,704
Scales V. Wiley (Vt.) (33 Atl. Rep. 771). .101, 106, 689
ScauQuion v. City of Chicago (25 111. 4-^4 [1861]),
641,044,654,663
V. Denio (72 Cal. 393, 14 Pac. Rej).
98 [1887]) 595, 731
Scanlan v. Hodges (C. C. A.) (52 Fed. Rep. 354) 126
Scarbrough v. Alabama Mid. Ry. Co. (Ala.) (10
So. Rep. 316) 866
Sceery v. Springfield (112 Mass. 512 [1873]). ... 43
Schade V. Geruer (Mo. Sup.) (34 S. W. Rep.
.576) 836
Schanzenbach v. Brongh (58 111. App. 526) 809
Schaper v. Gradner (84 III. 603) 794
Scheible v. Klein (89 Mich. 376, 50 N. W. Rep.
857) .686, 699
Scheid v. Rapp (121 Pa. St. 593 [1888]) 761
Schenke v. Rowell (7 Daly 286, 3 Abb. N. Cas.
42 [1877]) 427, 428, 439, 478
Schenck v. Saunders (13 Gray 37) 232
Schin V. Pabst Brew. Co. (Minn.) (66 N. W.
Rep. 3) 644
Sciilass V. Hewlett (Ala.) (1 So. Rep. 263) 74
Schlicht V. State (.56 Ind . 173) 892a
Schmidt v. Glade (126 III. 485 [1888]) 491
V. North Yakima (Wash.) (40 Pac.
Rep. 790) 428
Schmieder v. Kingsley (Com. PI.) (26 N. Y.
Supp. 3n 318
Schneider V. Patterson (Neb.) (.57 N. W. Rep.
qgc\ ^ 23
Schofield V. ThompkViis (9.'i 111 .190). '.'.'.' 315, 317, 319
School Dist. V. Dauchy (25 Conn. 530).. 272, 669, 674
V. Lund (.57 Kan. 7.31) 698, 703
V. Randall (5 Neb. 408). . . 412, 428, 480
V. Sage (Wash.) (43 Pac. Rep. 341),
436, 490
V. Sullivan (Kan.), (29 Pac. Rep.
1141) 557
School Trustees v. Bennett (27 N. J. Law 513
[3 Dutch.]) 237, 239, 240, 669, 674, 677
Schreiber v. Thornton (17 Fed. Rep. 693) 818
Schroeder v. Galand (134 Pa. St. 277) 762
Schuenfeldt v. Junkerman (20 Fed. Rep. 357
[1884]) 58
Schular v. H. R. R. Co. (38 Barb. 655 [1862]) . . 667
Schuler v. Eckert (90 Mich. 165, 51 N. W. Rep.
198 [1892]) 370, 411, 720
Schulcz V. Lindell (30 Mo. 310) 890
Schumm v. Sevmour (24 N. J. Eq. 143). . . . 177, 555
Schurr v. N. Y. & B. Sub. Invest. Bo. (Com.
PI.) (18 N. Y. Supp. 454. 16 N. Y. Supp. 210). . 43
Schwander v. Birge (46 Hun 66) 885
Schwartz v. Gelmore (45 111. 455 [1867]),
654, 664, 665
V. Saunders (46 111. 18)
240, 676, 677, 686, 687, 689
Schwerin v. De Graflf (21 Minn. 354 [1875]).. 370,478
Schwiesau v. Mahon (Cal.) (42 Pac. Rep. 1065),
219, 220
Schwinger v. Raymond (N. Y.) (11 N.T:. Rep.
952 [1887]) 885
Scofield V. Graw (63 Vt. 283) ' 703
V. McGregor (1 Thomp. & C. [N. Y.]
404) 685
Scott V. Avery (5 H. L. Cases 811 [1855]).
86, 344. 345, 407, 408. 415
V. Davenport (la.) (34 la. 208) 47
v. Maier (56Mich. 554 [1885]). .. 616,812.814
V. Liverpool Corporation (5 Jurist [N.S.]
105 [18(;0]. 1 Gifford 216, 3 De G. & J.
334, 31 Law Times 147 [1858]),
344, 414, 415, 416, 424, 428, 446, 509, 510,
514,520, 734,744,717
V. Norfolk & W, R. Co. (Va.) (17 S. E.
Rep. 882) 122
V. Raiment (I., R.) (7 Eq. 112) 438
Scott, T. B., L. Co. V. Hafi.ei-Lothman Mfg.
Co.(V\ is.) (65 N. W. Rep. 513) 256, 277
Scoville u. Miller (40 IJI. App. 237) 381
V. Tompkins (95 III. 190) .317
Scraggs V. Hill (W . Va.) (17 S. E. Rep. 185) ... 124
Scrivner v. Pask (18 C. B. [N. S.] 785, L. R. 1
Com. Pleas C»s. 715 [1866]) . . . 238, 589, 841
Scroeder v. Garland (134 Pa. St. 277) 762
Searle v. Laveriek (L. R.) (9 Q. B. 122) 652
V. Parke (N. H.) (34 All. Rep. 744) 767
Seaton v. Kendall (61 HI. App. 5i89) 525, 522
Seavey v. Shurick (Ind.) (11 N. E. Rep. 597
[1^87]) 601, 61&
Secristv. Board (100 Ind. 59) 766
Seguine v. Spaeth (Com. PI.) (35 N. Y. Supp.
847) Ill
Seibert v. Householder (Pa.) (10 Atl. Rep. 784
[1887]) 691
Selby V. Hutchinson (4 Gilman [111.] 319),
439, 687. 690, 739
Selpho V. City of Brooklyn (Sup.) (39 N. Y.
Supp. 520) 168
Seward v. City of Rochester (N. Y.) (16 N. E.
Rep. 348 [1888]) A\%
Sewer Commrs. v. Sullivan (Sup.) (42 N. Y.
Supp.358)... 428,722
Sexton V.Chicago (107 III. 323) 146
V. Cook Co. (111.) (114 III. 174 [1891]),
5.53, 554, .'^55, 5.56, 55&
Seybolt v. N. Y., L. E. jfc W. R. Co. (95 N. Y.
562) 56a
Seymour v. L. D. Co. (20 N. J. Fq. [5 C. E.
Green] 396 [1869])... 242, 399, 435, .502, 50.3, 569,
587. .589, 596, 841
Sharkey v. McDermoth (Mo.) (4 S. W. Rep. 107) 105
Sharp V. Smith (32 111. App. 336) 30
Sharpe v. Johnson (60 Barb. 144 [1871]) . .310, 697
V. San Paulo Ry. Co. (L. R.) (8Ch. App.
597 [1873]). . . 238, 348, 362, 363, 366,
870, 372, 378, 390, 395, 409, 414. 426,
428, 439. 446, .545, 553. 558, SB*
Shaufelter v. Baltimore (Md.) (31 Atl. Rep.
439) t92a
Shaver v. Ingraham (58 Mich . 649) 805
■y. Murdock (36 Cal. 29.3) 577
V. Pemia. Co. (C. C.) (71 Fed. Rep. 931) 86-
V. Sharp Co. (Ark.) (34 S. W. Rep. 261) 11&
Shaw V. Andrews (9 Cal. 73 [C. C], 62 Fed
Rep. 460) 126,514,518
V. First B. C. (Minn.) (46 N. W. R. 146,
44 Minn. 22) 545, 555, 556, 595
V. Trenton (49 N. J. Law 339 [1887]),
139. 140. 1.55, 173
V. Wolverton W. W. Co. (6 Exch. 137),
372. 545 553
Shea V. Town of Milford (Mass.) (14 N E. Rep.'
764 [1888]) 39,47-
Shefbaur v. Board (N. Y.) (31 Atl. Rep. 454). . .. 171
Sheffield v. Clark (73 Ga. 92) 531
Sheffield, etc.. Co. v. Gordon (151 U. S. 28.5.
14 Sup. Ct. Rep. .343) 241, 428,445
Sheffield C. Co. v. Sheffield & R. Ry.Co.(3Ry.
&C. Cas. 121) 97
Sheffield Fur. Co. v. Hull Coal & Coke Co.
(Ala.)(14So. Rep. 672) 89-
Sh^-ible V. Klein (Mich.) (50 N. W. Rep. 857).. . 683
Shelby ville. City of, v. Brant (61 III. App. 153). 892
Shelden v. Fox (Kan.) (29 Pac. Rep. 759 [1892]) 135
Sheldon v. Leahy (Mich.) (69 N. W, Rep. 76).. . 703
V. Pruessner (Kan.) (35 Pac. Rep.
201).... 87
Sherman v. Bates (15 Neb. 18), (Neb.) (17 The
Reporter 86 [1883]) 242, 257, 678, 834
Ixxii
TABLE OF CASES
Sherman, City of, v. Conner (Tex.) (25 S. W.
Rep. ;«1) 703
Shephaid v. St, Charles W. P. Rd. Co. (28 Mo.
373 [1859]) 590, 623
Shepherd v. Lincoln (17 Wend. [N. Y.] 250) . . . 854
Sheppard v. Conquest (17 (\ B. 427) 820
Sherman v. Mayor (1 N. Y. 316 [1848]). .382, 623, 679
Bherwin v. Nat. C. R. Co. (Colo. App.) (38 Pac.
Rep. 392) 97
V. Salpuugh (24 Vt. 347 [1852]) 575
Sherwood v. Houtman (N. Y.) (73 Hun 544).. . . 702
Shibley v. Angrel (37 N. Y. 626 [1868]) 49
Shields v. Hickey (26 Mo. App. 194 [1887]) 88
Shiells V. Blackburne (1 H. Bl. 158) 838
Sl)ines' Ex'r v. Heimburger (1 Mo. App. Rep.
Ill) .674, 675
Shinn v. Hicks (Tex.) (45 S. W. Rep. 486 [1887]),
377, 5.58
Shipley v. Fifty Associates (106 Mass. 194) 646
■Shipnaan v. Dist. of Colm. (119U. S. 148, 703) 580, 600
V. State (43 Wis. 381),
46, 812, 814, 828. 829, 837, 838, 839
Shirk V. Cox (Ind. Sup.) (40 N. E. Rep. 750): .859a
Shively v. Knoblock (Ind.) (35 N.'E. Rep. 1028),
493, 494
Shoemaker v. Acker (Cal.) (48 Pac. Rep. 62), 694, 805
Shoenberger v. City of Elgin (111. Sup.) (45 N.
E. Rep. 434, 59 111. App. 384) 241
Shookv. Pate(50Ala. 91[1874]) 891
Short V. McCarthy (3 B. & Aid. 626) 121
V. Statts (58 Ind. 29 [1877]) Ill
Shreinerv. Miller (67 la. 91 [188.5]) 837, 833
Shrevev. Brereton (51 Pa. St. 175 [1865]). . .317, 318
Shrewsbury v. Tutfts (W. Va.) (23 S. E. Rep.
692) 124
Shrump v. Parfitt (84 Hun [N. Y.] 341) 479
Shufeldt V. Searing (59 111. App. .MI) 885
Shular v. Hudson R. R. Co. (38 Barb. 653) 667
Shuite V. Heunesy (40 Iowa 352 [1875]),
484, 491, 621, 891
Shute V. Hamilton (3 Daly [N. Y.] 462) 324
Sil)ley V. Felton (Mas.s.) (31 N. E. Rep. 10) 89
Siboni tJ. Kirkman (1 M. & W. 418) 10
Sickle V. Pattison (14 Wend. 257) 697
Sickles V. United States (1 Ct. of CI. 214) 678
Siebe v. San Francisco (Cal.) (46 Pac. Rep. 456). 844
Sie{>:el V. Eaton & Prince Co. (60 111. App. 639),
(111. Sup.) (46 N. E. Rep. 449 [1897]) 674, 677
Sievers v. San Francisco (Cal.) (47 Pac. Rep.
687) 587, a58
Sigourney v. Sibley (21 Pick. [Mass.] 101) 561
Siler V. Gray (86 N. C. 566) 678
Silsby Mfg. Co. v. Allentown (Pa.) (20 or 26
Atl. Rep. 646) 163, 557
V. Town of Chico (24 Fed.
Rep. 893) 340
Silver V. Conn. R. L. Co. (40 Fed. Rep. 192
[1889]) 365
Siinis V. Brooktteld (34 N. Y. Supp. 695) 76
Simmons v. Lawrence (133 Mass. 298) 575, 690
Siraonds v. Pearce (31 Fed. Rep. 137) 677
Simonson v. Grant (36 Minn. 439 [1887]) 20, 761
V. Thori (Minn.) (31 N. W. Rep. 861
[1887]) 20
Simpson v. New York, etc., R. Co. (51 N. Y.
Super. Ct. 419) 566
Sims V. Bice (67 111. 88) 794
V. Jones (S. C.^ (20 S. E. R. 905) 126
Sinclair v. Bowles (9 B. & C. 92) 675, 699, 703
V. Tallmadge (35 Barbour 602 [1861]),
325, 326. 344, 369, 39.5, 411, 417, 445,
.555, 698. 699, 701, 702
Sindlinger v. Kerkow (Cal.) (22 Pac. Rep.
932) 348
Sir)ger v. McCormick (4 Watts & S. 265, 266). . 804
Siiigerly V. Thayer (108 Pa. St. 291) 340
Sin}i;leton v. Wilson (s.5 Tenii. M44) 695
Sinnott v. Mullin (82 Pa. Sr. 833 [1876]) . . 674, 689
Sioux Fails v. Kiiby (S. D.) (60 N. W. Rep.
156) 344, 404
Sipperlv v. Stewart (50 Barb. 62 [1867]) .... 612, 619
Sisk V. Garev (27 Md. 401) • . ..428
SkMiiy V. New York El. R. Co. (27 N. Y. Supp.
304) 892a
Skelsey v. United States (23 Ct. of CI. 61) 326
Skelton v. Fenton Elec. L. & P. Co. (Mich.) (58
N. W. Rep. 609) 890
Skinner v. BedblPs AdmY (32 Ala. 44) 310
Skyni V. Weske Cons. Co. (Cal.) (47 Pac. Rep.
116) 794
Slantey v. Schwalby (Tex.) (19 S. W. Rep. 264
[1892]) 116
Slater v. Mersereau (64 N. Y. 138 [1876]),
244, 663, 666, 667
Sloan V. Hayden (110 Mass. 143) 340
Sloss Marblehead L. Co. v. Smith (11 Ohio Cir.
Ct. R. 213) 687
Slowman v. Walter (1 Bro. Ch. 418) 317
Slusser T. Co. v. City of B. (47 Iowa 300 [1877]),
578, 579, .580
Small V. Howard (128 Mass. 131 [1880]) 829
Small House v. Ky. & M. G. Co. (2 Mont. 443
[1876]) 861
Smalley v. Mitchell (Midi.) (68 N. W. Rep. 978) 105
Smeltzer v. Miller (Cal.) (45 Pac. Rep. 264) .... 138
Smes V. Supt. (Mich.) (25 N. W. Rep. 485) 105
Smilie v. Fresno Co. (Cal.) (44 Pac. Rep. 556). . 45
Smith V. Aiken (75 Ala. 209) 123
V. Aiken (102 N. Y. b7) 369, 411
V. Alker (102N. Y.87[1886]) 417
V. Bd'. Miami Co. (Ind.) (33 N. E. Rep.
243) 558
V. B. C. & M. R. R. (36 N. H. 459 [1858]),
326, 340. 341. 421, 426. 428. 442, 511, 601, 602
V. Brady (17 N. Y. 173 [1858]),
b88, 407, 41.5, 417. 428. 439, 697, 701, 702
V. Briggs (3 Deuio [N. Y.] 73 [1846]),
407,415, 476
V. Bristol (33 Iowa 24) 242, 256, 572
V. City of Newburg (77 N. Y. 136) 35
V. Clafk (.58 Mo. 145 [1874]) 2.57
V. Coal Co. (83 111. 498) 678
V. Coe (2 Hilt. 365) 573
V. Cooley (5 Daly 401) 428
V. Co-operative D. Assn. (12 Daly [N.
Y.] 304) 33
V. Corn (Com. PI.) (23 N. Y. Supp. 326),
581, 687, 728, 730
V. Darby (L. R. 7 Q. B. 716) 643
V. Dickey (74 Tex. 61 [1889]). 813
V. District (20 Conn. 312 [1850]) 698
V. Farmers' Trust Co. (Iowa) (66 N. W.
Rep. 84) 389, 468
V. First Cong. Ch. (8 Pick. [Mass.] 178).
698, 703
V. Flanders (129 Mass. 322 [1880]),
21 4 222 228
V. Foster (41 N. H. 220) .T. .'.... .' .59
V. Goulding (6 Cush. [Mass.] 154) 107
V. Gugerty (4 Barb. 614) 567, 701
V. Kron (N. C.) (I3 S. E. Rep. 839) 436
V. Lowell M. H. (8 Pick. 181> ... 700
V. Mayor (10 N. Y. 504),
138,139,140,156, 176, 427
V. Milne (1 Dowl. 290) 643
V. Milwaukee Build, and Traders' Exch.
(Wis.) (64 N. W. Rep. 1041),
640a, 641, 641a, 663, 667
V. Molleson (74 Hun [N. Y.] 606. 26 N.
Y. Supp. 653), (N. Y. App.) (42 N. E.
Rep. 669) 20, 21, 271, 445, 739
V. Monroe (84 N. Y. 354) . . 794
V. Munch (Minn.) (68 N. W. Rep. 19) 326
V. Newbaur (Ind.) (42 N. E. Rep. 40) ... 675
V. New York (21 How. Pr. 1) 164
V. New York (Sup.) (31 N. Y. Supp. 783).
(42 N. Y. Supp. 522).
138. 139, 140. 156, 176, 427
V. O'Donnell (Com. PI.) (36 N. Y. Supp.
480) 797
V. Philadelphia (13 Phila. [Pa.] 177. 2
Brews.[Pa.] 443)... .168, 177, 522
V. Potter (27 Vt. 304 [18.55]) 483, 485
V. Robson (N. Y. App.) (42 N. E. Rep.
667) 804
r. Roe (7 Col, 95) 689
V. Sheltering Arms (35 N. Y. Supp. 02).. 702
v. Siniili (.28I1I..5() ['8(521) 428
V. Smitli (45 Vt. 433 [1873]). .325. 439, 574, 575
V. Sorby (L. R. 3 Q. B. D. 552 [1878]) .... 514
TABLE OF CASES.
Ixxiii
Smith V. Spratt Mach. Co. (S. C.) (24 S. E.
Rep. 376.) 310
V. White (5 Neb. 408) 428
V. Wilson (3 B. & Add. 728 [1832]) 606
V. Wright (4 Hun 652) 439
Smith & Nelson v. Bristol (33 Iowa 21) 256
Smithnieyerr.United States (147 U. S. 342), 813, 814
Sinythe v. Parsons (Kans.) (14 Pac. Rep. 445
[1887], 37 Kas."79) 620
V. Ward (46 Iowa 339) 627
Snaith v. Smith (25 N. Y. Supp. 513, s. c. 27
N. Y. Supp. 379) 341, 428, 445, 474, 477, 514
Sneda v. Libera (Minn.) (68 N. W. Rep. 36). 883, 888
Snellu. Brown (71 111. 133 [1873]),
397, 428, 429, 430. 432, 445, 503, 504, 683, 742
V. Cottingham (72 III. 161 [1874]),
439, 601, 701, 704
V. Rogers (Sup.) (24 N. Y. Supp. 379) Ill
Snelliiig's Will, In re (N. Y.) (32 N. E. Rep.
1006) 888
Snodgrass v. Gavit (28 Pa. St. 221 [1857]).
402, 412, 414, 415
Snow V. Ware (13 Mete. [Mass.] 42) 703
Societe, etc., v. Milders (49 L. T. 55) 682
Soderberg v. Crockett (17 Nev. 410) 439
Somerby v. Tappan (1 Wright (Ohio) 570
[1834]) 256, 704, 834, 837
Sontag V. Brennan (75 111. 279 [1874]) 676
Soutli's Adm'r v. South (70 Pa. St. 195). . . .385, 479
South, etc., R. Co. v. Piigreen (62 Ala. 305). . . .892a
South Wales R. Co. v. Whythes (5 DeG. M. &
G. 880) 706
Soutier v. Kellman (18 Mo. 509 [1859]) 625
Soule V. Seattle (Wash.) (33 Pac. Rep. 384). . .44, 47
Spader v. Lawler (17 Ohio 397) 679
Spartali v. Benecke (10 C. B. 222) 618
Spear V. Bidwell (44 Pa. St. 23) 428
Spearman v. Ward (S Atl. Rep. 430). 58
Spearman v. '1 exarkana (Ark. 24 S. W. Rep
883) 42
Specht V. Stevens (Neb.) (65 N. W. Rep. 879).. 183
Speck v. Phillips (5 M. &W. 283) 846
Speed V. Atl. & Pac. R. Co. (71 Mo. 303 [1879]),
645. 653, 663
Spenee v. Bd, of Com'rs (117 Ind. 573 [1888], 18
N. E. Rep 513 [1889]) 222, 237, 579
Spencer v. Harding (L. R. 5 C. P. 561 [1870]),
182, 183, 187
V. St. Clair (57 N. H. 9) 685
Sperrv v. Fanning (80 111. 371 [1875]) 30, .326
Spilman v. Parkersburg (W. Va.) (14 S. E,
Rep. 279) 45
Spinney v. Downing (Cal.) (41 Pac. Rep. 797) . . 797
Spring V. Ansonia Clock Co. (24 Hun [N. Y.)
17.5) 801
Spring Co. v. Edgar (99 U. S. 645 [1878]) 889
Spring Garden Mut. Ins. Co. v. Evans (15 Md.
54[1859]) 877
Springer Lith. Co. v. Falk (C. C. A.) (59 Fed.
Rep. 707) 818
Springfield, City of, v. Mathus (124 111. 88
[1888]) 154
V. Weaver (Mo, Sup.)
(37 S. W. Rep. 509),
135, 168
Springfield C. A. v. Smith (32 111. 252 [1863]),
256, 257, 566, 831, 834
Springfield Fire & Marine Ins. Co. v. Payne
(Kan. Sup.) (46 Pac. Rep. 31.5) 885
Springfield Milling Co. v. Lane Co. (5 Greg,
265 [1874]) 52,53
Sproessig v. Rental (17 N. Y. Supp. 839) . ! 688
gpuigeon V. McElwain (6 Ohio 442) 76
ftfHdhard v. Lee (3 B. & S. 364 [1863]).. 340, 720, 746
Staffoti V. LvoM (Mich.) (68 N. W. Rep. 151, 62
N. W. Rep. 354) 755,762, 765
Stafford v. Citv of Oskalose (64 Iowa 251
[1885]) 645, 884
V. Lowe (16 Johns. [N. Y.] 67) 169
Standard Gas Lt. Co, v. Wood (61 Fed. Rep.
74) 326. 670
Stanfieldv. Knickerbocker Trust Co. (Sup.)
(37 N. Y. Supp. 600) 878
Stanley v. Sheffield & Co. (Ala.) (4 So. Rep. 34
[1888]) 38
Stannard v. Harrison (24 Law Times 570) 821
Stanton v. Bell (2 Hawks [N. C] 14.5) 805, 827
Stanwick v. Butler-Ryan Co. (Wis.) (07 N. W.
Rep. 723) 887
Star Glass Co. v. Morey (108 Mass. 570 [1871]). 628
Stark V. Parker (2 Pick. 267) 699
Starkey v. DeGraff (22 Minn. 431 [1876]),
370, 386, 384. 388. 392, 395, 405, 421, 426. 439
Starkweather v. Goodman (48 Conn. 101
[1880]) • 370,377, 553, 5.58
Starr v. G. C. IMin. Co, (0 Montatia 485) 445
Stale V. Atlantic City (N. J.) (9 Ail. Rep. 759
[1887]) 44
V. Ball! win (Kan.) (12 Pac. Rep. 318
[1887]) 876
V. Bartley (Neb.) (70 N. W. Rep. 367),
1R9, 178
V. Bavonrie (N. J.) (8 Atl. Rep. 295). .135, 529
V. Bell (La.) (21 So. Rep. 724) 426, 709
V. Betts (4 C. C. [Oliio] 86). ..,•••• 173
V. Bever (Ind.) (41 N. E. Rep. 802) 426
V. Biddle (Com. PI.) (3 Ohio N. P. 173). . . 143
V. Board of Com'rs of Shawnee County
(Kan.) (45 Pac. Rep. 616) 163, 164
V. Bd. of Ed. (42 Ohio St. 376),
146, 169, 172, 176, 178, 187
V. Bd. of Ed. (24 Wis. 683) 178
V. Brown, etc., Mfg. Co. (R. I.) (1892). ... 144
V. Bruner (Ind.) (3.") N. E. Rep. 22) 147
V. Canal & C. St. Ry. (La.) (10 So. Rep.
940 [1892]) 600
V. City of Trenton (49 N. J. Law 339, 12
At). Rep. 902 [1888]) 155, 161
V. Clark (73 N. C. 255) 669
V. Cunningham (Neb.) (59 N. W. Rep.
48.5) 139
V. Directors (5 Ohio St, 234) 171
V. Dixon (La.) (16 So. Rep. 589) 891
V. Dixon Co. (Neb.) (37N . W. Rep. 936). 176
V. Elizabeth (35 N. J, Law 351) 163
V. P'arrish (23 Miss. 483) 689
V. Frazier (Ind.) (14 N. E. Rep. 561 [1888]) 473
V. Gloucester Co. (50 N. J. Law 585) 135
V. Governor (22 Wis. 1 10 [1867]) 146, 169
V. Harr (W. Va.) (17 S. E. Rep. 794) 878
V. Harris (89 Ind. 363). 850, 851
v. Hayes (78 Mo. 307) 892a
V. Heckart (62 Mo. Apn. 427). 38
V. Hendel (Idaho) (35 Pac. Rep. 836) 883
V. Henderson (29 W. Va. 147) 891
u. Kendall (15 Neb. 262) 176
V. Kern (51 N. J. Law 2,59 [1889]).. 36, 161, 179
V. Licking Co. (26 Ohio St. 531) 171
V. Marion Co. (39 Ohio St. 188) 172
V. Marion Co. Ct. (Mo.) (30 S. W. Rep.
103, 31 S. W. Rep. 103) 892oj
V.Martin (S. C.) (25 S. E. 113) 891
V. McGuiley (4 Ind. 7 [1852]) 403, 748
V. McGrath (91 Mo. 386) 176
V. Michisran City and.) (37 N. E. Rep.
1041) 38, 221
V. McNally (La.) (21 So. Rep. 27) 144
V. New Orleans (La.) (19 So. Rep. 690)... . 172
V.Owen (73 Mo. 410 [1881]) f=91
V. Pavssan (La.) (17 So. Rep. 481) 164
V. Rulon (N. J.) (14 Atl. Rep. 881 [1888]). 486
V. Scott (17 Neb. 686) 176
V. Shelby Co. (36 Ohio St. 326) 175
V. St. Bernard (10 Ohio Cir. Ct. Rep. 74),
1.53, 173, 176
V.Stanton (N. C.) (19 S. E. Rep. 96) 878
V. Supervisors York Co. (17 Neb. 643). ... 176
V. Tice (Oreg.) (48 Pac. Rep. 367) 880
V. Treasurer (22 Wis. 660 [1868]) ... 46
V. Williams (1 Vroom. 102) 667
V. York Co. Commrs. (13 Neb. 57). . . .146. 178
^tate Nat. Bank v. Fink (Tex. Sup.) (24 S. W.
Rep. 256) 73
State, etc. V. Murphy (Mo.) (31 S. W. Rep. 784). 45
State of Penna. v. Wheeling Bdge. Co. (13
How. [U. S.] 518) 8.50a
Staunton v. Parker (19 Hun .^5 [1879]) 74
Steamboat V. King (16 How. [U. S.] 409) 864
Steamship Co. v. McAlpine (69 Ga. 437 [1882])
610, 611
Ixxiv
TABLE 03 CASES.
steamship Co. v. Swift (29 Atl. Rep. 1063, 86
Me. 248)
Stearns v. Corbett (3:i Mich. 458 [1876])
V. Lake Shore & M. S. Ry. Co. (Mich.)
(71 N. W. Rt'p. 148)
Stebbinsv. Leowalf (3 Ciish. 137) 83,
Stecker v. Overpeck (\>1 Pa. St. 446 [1889]). . . .
Steel V. South Eastern R. Co. (16 C. B. 550).b66,
Steele v. Buck (61 III. 343 [1871])
V. McBurney (Iowa) (65 N. W. Rep. 332),
17, 271,
Stees V. Leonard (20 Minn. 494) 674,
Steffea v. St. Louis (Mo.) (36 S. W. Rep. 31),
277, 384,
Steffes V. Lemke (40 Minn. 27)
Stellinan v. Nortliup (109 N. Y. 473)
Scephanson v. Piscataqua Co. (54 Me. 55)
Stephens v. Buffalo (20 Balrb. 332)
V. Spokane (Wash.) (45 Pac. Rep. 31).
V. Southern Pac. Co. (Cal.) (41 Pac.
Rep. 783)
Stephenson v. Cady (117 Mass. 6)
Stetson V. McDonald (32 Pac. Rep. !08)
Stevens v. Gourley (7 C. B. [N. S.] 99)
Stevenson v. Watson (L. R. 4 C. P. D. 148
48 L. J. [N. S.] 318 [1879]), 348, 351, 427, 440,
Stewart v. Carbrov (59 III. App. 397)
V. Cass (16 Vt. 663)
V. City of C. (125 Mass. 102)
r. Greer (Del.) (32 Atl. Rep. 328. 7
Houst. 378) 436,
V. Keteltas (9 Bosw. [N. Y.] ',61 [1862]),
324. 326, 428, 474, 478, 569,
V. Weaver (12 Ala. 5.38)
Sticker v. Ovei-peck (127 Pa. St. 446 [1889]). . . .
Stickler v. Giles (Wash.) (37 Pac. Rep. 293). . . .
Stidham v. Sanford (36 N. Y. Sup. Ct. 341
[1873]) Vi
Stiles V. Neillsville Mill Co. (Wis.) (58 N. W.
Rep. 411)
V. W^estern Ry. Co. (1 Amer. Ry. Cas.
397 [1844])
Stimpson v. Spra^ue (6 Greenl. [Me.] 470)
Stirnson Mill Co. v. Riley (Cal.) (42 Pac. Rep.
1072)
Stirinp:er v. Toy (W. Va.) (10 S. E. Rep. 26
[1889])
Stockton Works v. Glen Falls Ins. Co. (Cal.)
(33 Pac. Rep. 633, 637, 638)
Stoddard v. Treadwell (26 Cal. 294)
V. Town of Winchester (Mass.) (32 N.
E. Rep. 948)
Stokes V. Mackay (N. Y. App.) (41 N. E. Rep.
91
62
801
310
698
667
22
658
678
556
20
8
405
796
789
58
674
19
76
847
481
524
370.
533
670
674
703
66
,68
891
736
827
20
530
443
807
887
682
Stoke V. McCuUough (1 Cent. Rep. 55) 506
Stone V. Assip(18N. Y. Supp. 441) 682
V. Bancroft (Cal ) (44 Pac. Rep. 1069)... 809
V. Bishop (Vt.) (22 Rep. 319 [1886]) 885
V.C.& M. R. Co. (Mich.) (13 N. E. Rep.
686 [1887-8]) 870
V. Cheshire R. Co. (19 N. H. 427 [1849]). . 666
V. Halstead (62 Mo. App. 136) 892rt
V. Rennock (31 Mo. App. 544) . . 796
■y. Viinont (7 Mo. App. 277) 809
V. Wood (7 Covven 453)
Storer v. Gt. Western Ry. Co. (2 Y & C. C. C.
54).... 706
Storms u. Snyder (10 Johns. 109). 106
Storrs V. Utica (17 N. Y. 104 [1858]).
633, 645, 6.54, 660, 666
Stose V. Heisler (120 111. 439, 11 N. E. Rep. 161
[1887]) 432,530
Stott V. Churchill (Com. PI.) (36 N. Y. Supp.
476]) 643
Stourbridpre v. Brooklyn City R. Co. (Sup.) (41
N. Y. Supp. 12S) 644
Stover V. Mitchell (45 111. 213 [1807]) 28
V. Spielman (1 Pa. Super. Ct. 526) 3K8
Stowe V. Buttrick (125 Mass. 449) 691
St'auss V. Wannamaker (Pa. Sup.) (34 Atl.
Rep. 648) 402
St raw V. Truesdnle (59 N. H. 109) 527
St reaper v. Williams (48 Pa. St. 450) . . . .317, 318
Strickland v. Turner (7 Exch. 217) 669
Strome v. Lyon (Mich.) (68 N. W. Rep. 983). . . . 701
496).
Stromm v. N. Y., L. E. & W. R. R. (96 N. Y.
305) 887
Strong V. Dist. of Columbia (4 Mackey [D. C]
24:;>) 555
Strong V. Strong (9 CushV [Mass.] 560). ....... 428
V. Waters (30 N. Y. Snpp. 64) 129-
Stubbins v. McGregor (Wis.) (56 N. W. Rep.
641) 433
Stryker v. Cassidy (76 ;^. Y. 50) 862
Stuart V. Cambridge (125 Mass. 102). .1.57, 547, 552
Stubbs V. Holly well Ry. Co. (L. R. 2 Ex. 311),
50;^, 709
Stuhtv. Sweesy (Neb.) (67 N. W. Rep. 718). 67, 106
Sturges V, Theological Society n30 Mass, 414). 646
Sturm V. Boker (14 Sup. Ct. Rep. 99) 232.
Styles V. Tyler (64 Conn. 432) 829, 840
Suffern v. Butler (36 E. Green 220) 794
Sullivan v. Commissioners (114 111. 262) 45
V. McMillan (Fla.) (19 So. Rep. 340)... 695
V. N. Y. & R. C. Co. (N. Y.) (23 N. E.
Rep. mO) 68»
V. President, etc. (122 N. Y. 3S9) . . . . 583
V. Sing Sing (122 N. Y. 389 [1890]).. 572, 589<
V. Sullivan (Cal.) (33 Pac. Rep. ^62) . . 64
V. Susong (Mich.) (9 S. E. Rep. 156
[^1889]) 354
Sulzbach v. Ttiompson's Admrs. (U. S. C. C.
Pa.) (17 The Reporter 777 [1884]) 601
Summerlin r. Thompson (31 Fla. 369) 417
Summers v. Chicago, etc., R. Co. (49 Fed. Rep.
714) 382, 428-
Sumner v. Chandler (2 Pugsley & B. [N. B ]
175) 855
V. Parker (36 N. H. 449) 57r
Supt. of Schools V. Bennett (27 N. J. Law [3
Dutch.] 513) G78
Superior, City of, v. Morton (63 Fed. Rep. 3.57). 44
Supreme Council v. Forsinger (125 Ind. 52-55). 405
V. Garrigus (104 Ind. 133) ... 405
Susquehanna F. Co. v. White & Co. (66 Md.
444[18!?6]) 627
Sutherland v. Morris (45 Hun 259[1R87]).219. 545, 552
Sutro T. Co. V. Seg. Bel. Min. Co. (Nev.) (7 Pac.
Rep.271) 345
Sutton V. Clark (6 Taunt. 44) 643, 8.5*
Swain v. Seaniens (9 Wall. [U. S.] 264) ... 701
Swank v. Barnum (Minn.) (65 N. W. Rep. 722). 481
Sweet V. Benning (16 C. B. 459) 8I»
V. Jenkins (1 R. I. 147 [1840]) 618-
V. Norrison (N. Y.) (22 N. E. Rep. 276,
116 N. Y. 19 [1889]) 402. 428,
436. 487, 493, 498, 502. 504, 505, 528
tweet & Carpenter v. James (2 R. I. 270, 288) . .801
weeney v. United States (97 U. S. 402, 15 Ct.
of CI. 400, 3 Sup. Ct. Rep. 344, 109 U. S. 618
[1883]) 41.5, 428, 429, 430, 432
Sweeny v. Davidson (68 Iowa 386) 324, 58.i
Swenev v. Tliomasin (9 Lea [Tenn.l 3.59 [1882]). 620
Swift V. Mayor of New York (83 N. Y. 528, 26
Hud [N. Y.]508) 160, 161
V. The People (89 N. Y. 52 [1882]).360, 435, 595
Swindler V. State (Ind. App.) (44 N. E. Rep, 60) 19
Swobe V. New Omaha T. H. Elec. Lt. Co.
(Neb.) (58 N. W. Rep. 181) 722
Symonds v. Mayo (10 Cush. 39 [1852]) 52*
T.
Taff Vale R. Co. v. Nixon (1 H. L. Cases 111, 7
Hare 136) .54.N
Taf t V. Montague (14 Mass. 282) ..... .53. 701 , 703
Tagg v. The Tenn. Nat'l Bk. (9 Heisk. 479
[1872]) 849a
Tnhrland v. Rodier (16 L. C. I. Rep 473) 514
Talbot Paving Co. v. Council of Detroit (Mich.)
(51 N. W. Rep. 933
[1892], 67 N. W. Rep.
979) 178
V. Gorman (Mich.) (61 N. W.
Rep. 655) 277
Taliaferro v. Stevenson (N. J. Err. & App.) (33
Atl. Rep. 38.3) 762^
Tallinan v. Kimball (Sup.) (26 N. Y. Supp. 811). 558
Talpey v. Wright (Ark.) (32 S. W. Rep. 1072)... 836
Tanner v. Christian (4 E. & B. 590) 30
TABLE OF CASES.
Ixxv
691
891
TOl
665
Tancred, A. & Co. v. The Steel Co. (17 Scotch
Law Repts. 463 [1890]) 506
Tank v. Rohweder (Iowa) (67 N. W. Rep. 106).. 427
Tarry v. AsKton (1 Q. B. Div. 314) 646
Tasker v. Crane Co. (C. C.) (5 Fed. Rep. 449). . 310
Tate V. Fratt (Cal.) (44 Pac. Rep. 1061) 890, 891
Tautholt V. Ness (35 31inn. 370) 738
Taylor v. Brewer (1 Maule & S. 290) 340
V. Caldwell (32 L. J. Q. B. 164 [1868].
s. c. 3 Best & Smith 820),
65, 669, 676, 709
V. Fox (16 Mo. App. 5-.'7) 183, 222
V. Gilman (24 Fed. Rep. 632) 818
V. Gilsdorf (74 III. 359) 862
V. Hall (4 Ir. R. C. L. 467) 553, 616
I?. Lambertville (43 N. J. Eq. 107) 135
V. Netlierwood (Va.) (.0 S. E. Rep. 888) 326
V. Palmer (31 Cal. 241 [1866]).. 14, 15, 222, 310
r. Renn (79 111. 181 [1875]),
324, 326, 415, 428, 446, 496
■v. Saxe (N. Y. App.) (31 N. E. Rep. 258),
277,
V. Town of Monroe (13 Conn. 43)
V. Williams (6 Wis. 303)
Tavlor B. & H. Ry. Co. v. Warner (Tex.) (32 S.
W. Rep. 868)
Templine v. Chicago, B. & P. R. Co. (la.) (35 N.
W. Rep. 634 [1887]) 38
'Tennessee, etc., R. Co. v. Danforth (Ala.) (13
So. Rep. 51 [1893]) 275, 318, 481. 690. 691, 695
Terre Haute r. Hudnutt (112 Ind. 542) (13 N. E.
Rep. 686 [1887]) 245, 246. 247, 834, 835, 891
Terrell v. Strong (Sup.) (35 N. Y. Supp. 1000),
175, 177
Terrier v. Storer (19 N. W. Rep. 288 [1884]) .... 95
Tetz V. Butterfield (54 Wis. 242 [1882]),
259, 341, 426a, 428, 431, 413. 445, 446
Tew V. The Newbold School Bd. (1 Cababe &
Ellis 260 [1884]) 585
Texas & P. Ry. Co. v. Black (Tex.) (27 S. W.
Rep. 118) 892a
Texas & St. L. Ry. Co. v. Rust (17 Fed. Rep.
280; (19 Fed. Rep. 239 [188.3]) 219, 320, 321.
324, 325, 405, 417, 585, 619, 705, 706, 726
Texas, etc., R. Co. v. Saxton (N. Mex.) (34 Pac.
Rep. 532 [1893])
Texaj^ & R. Ry. Co. v. So. Pac. Ry. Co. (La.) (6
So. Rep. 888)
Texas Transp. Co. v. Boyd (2 S. W. Rep. 364
[188(3]) 15;
Texas W. & G. Co. v Cleruru (Tex.) (21 S. W.
Rep. 393)
Texas, etc., R. Co. v. Marshall (136 U. S. 393) .
Thames Iron Wks, v. Royal Mail P. Co. (13 C.
B. [N. S.] 358, 8 Jurist [N. S ] 100)
Tharsis Sulphur & Copper Co. v. Loftus (L. R.
8 C. P. Cas. 1 [1872]) 846,847
Tharsis Sulphiir & Copper Works v. McElroy
& Sons (L. R. 3 App. Cas. 1040 [1878]),
482, 548, 549
Thayerv. Allison (109 111. 180) 688
. V. V. C. Ry. Co. (24 Vt. 440 [1852]). .376, 552
Theobald v. Burleigh (N. H.) (23 Atl. Rep. 367).
V. Burleigh (N. H.) (23 N. E. Rep. 367
[1891]) 438, 689
Thomas v. Carson (Neb.) (65 N. W. Rep 899) . . 836
V. Commonwealth (Va.) (17 S. E. Rep.
788) 892a
V. Caulkett (57 Mich. 392) 533
V. Fleury (26 N. Y. 26 [1862]).
415, 426, 439. 442, 572, 581, 585. 670
V. Hunt (N. Y.) (3 Transp. App. 191
[1867]) :,. 561
• V. L'Hote (23 La. Ann. 73) 692
V. School Dist. (71 111. 284) 766
V. Stewart (N. Y. App.) (30 N. E. Rep.
577) 687
V. Walnut Land, etc., Co. (43 Mo. App.
6.53) 94
V. Leland (24 Wend. [N. Y.] 65) 46
V. Winchester (16 N. Y. 397) 842
Thompkins v. Dudley (25 N. Y. 272 [1864]) 675
V. West (56 Conn. 478) 875
Thompson v. Baxter (Tenn.) (21 S. W. Rep.
668) 862
326
82
159
roi
706
345
Thompson v. Board of Suprs. (Cal.) (44 Pac.
Rep. 230) 189
V. Branniu (Ky.) (21 S. W. Rep.
1057) 629, 885
V. Charnock (8 Term R. 139),
344. 405, 407
V. Coffman(15 Oreg. 631 [1888]).755, 796
V. Goble (16 Pac. Rep. 713 [1888]). .. 687
V. Lord Bateman (36 Law Times
Rep. 736) 445
V. Lyons (54 N. Y. Supr. Ct. 101),
574, 684
V. Riggs (6 D. C. 99) 794
V. Stanhope (Ambler 737) 816
Thomson v. James (Langdell's Cases on Con-
tracts 125) 95
Thorn v. C<>mmrs. (32 Beav. 490) 184
V. Mayor of London (L. R. 9 Ex. 163
[1874], 1 App. Cas. 120 [1876]),
238,239. 587,675
V. Roman (Ala.) (7 So. Rep. 428 [1890]). . 566
Thornhill v. Neats (8 C. B. [N. S.] 831, 2 L. T.
Rep. 539 [1H60]) 573, 574. 585, 670
Thornton v. McCormack (Iowa) (39 N. W. Rep.
502 [1888]) 428, 479
V. Place (1 Mood. & R. 218) 569, 703
Thorp V. Ross (4 Abb. App. Dec. [N. Y.] 416, 4
Keyes [N. Y.] 546) 689
Thudium v. Yost (Pa.) (11 Atl. Rep. 436) 129
Thurber v. Ryan (12 Kans. 453) 428
Thurman v. Kyle (71 Ga. 628) 58
Thurnell v. Balbirnie (2 M. & W. 786) . : 356
Thurston v. Hancock (12 Mass. 220) 643
Tibbetts v. Haskins (16 Me. 288) 572
V. Knox «fe L. R. Co. (62 Me. 437),
638, 666, 667
V. Walker (4 Mass. 597) .503
Tickler v. Andrae Mfg. Co. (Wis.) (70 N. W.
Rep. 292) 807.809
Tife V. Blake (Minn.) (.38 N. W. Rep. 202) 65
Tiffin V. McCormick (34 Ohio St. 644) 643
Tilden v. Besley (42 Mich. 100) 676, 691
Tillett V. Charing Cross Bridge Co. (26 Beav.
419) 351
Tilley v. City of Chicago (103 U. S. 1.55 [1880]).. 616
• V. Cook Co. (103 U. S. 155 [1880]),
812, 813, 814, 815
Times F. Assur. Co. v. Hawke (28 L. J. Ex.
317) TOl
Times Pub. Co. v. City of Everett (Wash.) (37
Pac. Rep. 69,5) 176,177
Timison v. Briggs (2 South [N. J.] 498) 324
Tingley v. City of Providence (8 R. I. 493) 885
Tinker v. Geraghtv (1 E. D. Smith 687 [18.5.3]),
572, 574
V. Cutler (7 Conn. 291) 320
Tischler v. Apple (Fla.) (11 So. Rep. 273, 30 Fla.
132) 228
Titus V. Cairo & T. R Co. (37 N J. Law 98) . . . 69
Tobey v. Bristol Co. (3 Story 826) 351
V. Price (75 III. 645 [1874]) 324, 689
Todd V. Barlow (2 Johns. Ch. 551) 487
V. School Dist. (40 Mich. 294) 20
Toledo S. L & K. R. Co. v. Levy (Ind.) (26 N.
E. Rep. 773 [1891]) 561
Tolman v. Ward (86 Me. .303) 123
Tome v.Parkerhurgh B.R.Co.(39Md.37[1873]). 880
Tompkins v. Dudlev (25 N. Y. 272). 271, 674, 675, 704
Toimele v. Hall (4 N. Y. 140) 216, 219
Toolan v. Lansing (37 Mich. 152, 38 Mich. 315) , 247
Toole V. Beckitt (57 Me. 544) 643
Topping V. Swords (1 E. D. Smith 609 [1852]) . . 187
Torrence v. Amsden (3 McLean 509) 428
Tbwnsend v. Holt Co. (Neb.) (59 N, W. Rep.
381) 143
V. Hubbard (4 Hill 351) 32
V. Tallant (33 Cal. 45) .... 135
Tracy v. Waters (Mass.) (39 N. E. Reo. 190). ... 16
Train v. Gold (5 Pick. (Mass.) 380-385) 67
Trambly v. Richard (130 Mass. 2.59) 794
Transportation Co. v. Chicago (99 U. S. 635).... 643
Treat v. Hiles (Wis.) (32 N. W. Rep. .517) 103
Tredman v. Holman (1 Hurls. & Colt. 7J) 407
Trenton, City of, v. Shaw (N. J.) (10 Atl. Rep.
243 [1887]) 16J
Ixxvi
TABLE OF CASES.
Trenton Loco. Co. v. United States (12 Ct. of
CI. 147) 43,555
Trevor v. Wood (N. Y.) (16 Am. Law. Reg. 215
[18G8]) 95
Tiinley v. McDowell (24 S. W. Rep, 928) 123
Tripp V. Armitage (4 M. & W. 687) 271
Trotinau v. Dunn (4 Camp. 211) 804
Troup v. Smith (20 Johns. [N. Y.] 33) 119
Trowbridge v. Barrett (30 Wis. 661) 701
Trower v.Elder (77 111. 453 [1875]) 317
Truckee Lodge v Wood (14 Nev. 293). . . .20, 21, 565
Trustees r. Adams (11 Scotch Sessions Cases
326) 467
V. Bradfield (30 Geo. I.) 237. 257, 468, 842
V. Bennett (27 N. J. Law 513) 674, 675
V. Piatt (5 Bradw. [111.] 567),
547, 552, 564. 568, 579
Trustees of Academy v. Insurance Cos. (Wis.)
((JbN. W. Rep. 1140) 673
Trustees of I. & M. Canal v. Lynch (10 111. 521).
427, 4-->S, 432, 439, 445
Trustees of Wab. & Erie Canal v. Bledsoe (5
Ind. 133 [1854]) 566, 736
TryoM V. White & Co. (62 Conn. 161) 5.57
Tucker v. Preston (Vt.) (1 1 Atl. Rep. 726 [1888]). 90
Tullis V. Jackson (3 Ch. 441 [1892]) 419
Til Hock v. Webster County (Neb.) (64 N. W.
Rep. 705) 1 57
Turner v. Goulden (L. R. 9 C. P. 57) 838
V. Haar (Mo.) (21 S. W. Rep. 737). . .885, 891
V. Robinson (5 B. & Ad. 789, 10 Irish
Ch. 516 [1860]) 804. 816
V. Webster (24 Kans (38 [1880]) 90
Turney v. Bridgeport (55 Conn. 412, 12 Atl.
Rep. 520) 43,44,45,47
Turnpike v. Craver (45 Pa. St. 386) 555
Turpen v. Booth (56 Cal. 65) 845
Tutilev. Love (7 Johns [N Y.] 470) 168,183
Twiss V. Port Huron (03 Mich. 528 [1886], s. c.
30 N. W. Rep. 177) 175 181
Twogood V. Hoyt (42 Mich. 609) 890
Twomey v. Crowley (137 Mass. 184) 123
Tyler v. Ames (6 Lans. 280) 340
V. Bowen (1 Pittsb. 225) 135
V. Tuatlin Acad., etc. (26 Am. Law. Reg.
3.39 [1887]) 96
Tyler Car & L. Co. v. Wettermark (Tex.) (34
S. W. Rep. 807) 317
Tyron V. White & C. Co. (62 Conn. 161) 545
U.
Udderzooks Case (76 Penn. St. 340, 352) 880
Udell V. Atherton (7 H. & N. 19.5) 653
Uhlig V. Barnum (Neb.) (61 N.W. Rep. 749). .257, 749
Ulmei- V. Farnsworth (Me.) (15 Atl. Rep. 65
[1888]) 618
Ulrich V. N. Y. Cent. R. Co. (108 N. Y. 80
[1S88]) 864
Underbill v. Van Cortlandt (2 Johns. Ch. .S39). 428
Underwood v. Waldron (33 Mich. 232 [1876]). .. 885
Union Bank v. Campl)ell (4 Hnn 394) 849a
Union Cem. Assn. v. Buffalo (N. Y. App.) (26
N. E. Rep. 330 [1891]) 438
Union Locomo. Exp. Co. v. Erie Ry. Co. (37 N.
J. Law 23 [1873]) " 58
Union Pac. Ry. Co. v. Chicago. R. I. & P. Ry.
Co. (16 Sup. Ct. Rpp.
117.?) 70, 351
V. Douglas County Bank
(Neb.) (60 N. W. Rep.
886) 16
V. Estes (Kan.) (16 Pac.
Rep. 131 [188S]) 831
V. O'Brien (16 Sup. Ct.
Rep. 618) 886
Union R. Co. v. Dull (121 U. S. 173 [1888]). .511, 514
Union Stock-yds. Co. v. Westcott (Neb.) (66 N.
W. Rep. 419) .619
Union Stove Works v. Arnoux (27 N. Y. Supp.
83, 28 N. Y. Supp. 23) 439, 473, 477
Union Trust ( o. v. Atchison, etc., R. Co. (N.
M.) (43 Pac. Rep. 701) 81
United States v. Ash (D. C.) (75 Fed. Rep.
651) 892a
United States v. Behan (110 U. S. 338 [1884]),
239, 439. 693. 695
V. Central Pac. R. Co. (118 U. S.
2.35 [1886]) 70
V. Charles (C. C. A.) (74 Fed.
Rep. 142) 90
V. Dixey (C. C.) (71 Fed. Rep.
846) 216
V. Driscoll (96 U. S. 421 [1877]) . . 657
V. Ellis (Ariz.) (14 Pac. Rep. 300
[1887]) 'lOS, 414, 42H, 431
V. Granite Co. (105 U. S. 37
[1881]) 621
V. Lamont (15 Sup. ct. 97) 176
V. Maloney (4 App. D. C. oOo). . . 721
V. Mueller (113 U. S. 153) 689
V. North Ainer. C. Co. (C. C.) (74
Fed, Rep. 145) 116,430, 505
V. Ormsbee (D. C.) (74 Fed. Rep.
207) 507
V. Robeson (9 Pet. 319-327).
414, 415. 439, 440
Upston V. Weir (54 Cal. 124 [1880])..691, 692, 693, 694
Urazet v. Pittsburgh (Pa.) (20 Atl. Rep. 693
[1890]) 153
Urquhart V. Ogdensburg (91 N. Y. 67 [1883]). 246, 247
Uiley V. Burns (70 111. 162 [1873]) 811, 829
V.
Valiski v. City of Minneapolis (Minn.) (41 N.
W. Rep. 10.oO [1889]) 266
Valk V. McKeize (16 N. Y. Supp. 741 [1891]). 698. 702
Valley Tp. v. King Iron Bdge. Co. (Kan. App.)
(45 Pac. Rep. 660) 40
Van Alstyne V. Smith (31 N. Y. Supp. 277) 129
Van Buren v. Digges (II How. [U. S.] 461) 689
Van Buskirk v. Miirden (22 111. 446) 2.57, 468
V. Stowe (42 Barb. 9) 324, 325, 575
Van Clief v. Van Ve«'hten (1.30 N. Y. .571) ... 702
Van Court landt v. Underbill (17 Johns. Rep.
405 [1819]) 493
Van Dorn v. Mengedoht (Neb.) (.59 N. W. Rep.
800) 691, 693
Van Hook v. Burns (Wash.) (.38 Pac. Rep. 763). 505
Van Hovenbnigh v. Lindsey (1 Alb. L. J. 122).. 256
Van Lear v. Kansas Y. H. B. Wks. (Kan. Sup.)
(43Pac. Rep. 1134) 310
Van Keuren v. Miller (71 Hun [N. Y.] 68, 24
N. Y. Supp. 580) 439
Van Pelt v. Davenport (42 Iowa 308 [187.5]). 245, 846
Van Reipen v. Jersey City (N. J.) (33 Atl. Rep.
740) 155, 172, 173
Van Stone v. Stillwell Mfg. Co. (142 U. S. 128).
325, 724. 726
Van Wycklin v. City of Brooklyn (118 N. Y. 424
[1890]) 884,886
Vanderwerker v. Vt. C. Ry. Co. (27 Vt. 1.30
[1854]),
277, 372, 379, 402, 428, 432, 433, 4.36, 545, 546, 553, .558
Vane v. City of Evansten (111. Supp.) (37 N. E.
Rep. 901) 154
V. Newcombe (132 U. S. 220) 660
Varney v. Bradford (86 Me. 510) . 778
Varnum v. Highgate (Vt.) (26 Atl. Rep. 628). .. 266
V. Martin (15 Pick. [Mass.] 440) 827
Vass V. Wales (129 Mass. 38)
Vaughn v. McFadyen (Mich.) (68 N. W. Rep.
13.5) 272
Vaunce v. Fore (24 Cal. 4,36 [1864]) ... 224
Veazie v. Bangor (51 Me. .509) 468
Velsor V. Eaton (14 N. Y. Supp. 467 [1801]),
397. 399, 417, 440
Venn v. Commrs. (32 Beav. 490 [1863]) 184
Verdin v. St. Louis (Mo. Sup.) (27 S. W. Rep.
447, 33 S. W. Rep. 480) 154, 1.^7. 10.3, 164, 177
Verm V. Commissioners (32 Beav. 490 [1863]) . 188
Vermillion A. W., etc.. Co. v. Vermillion (S.
D.) (61 N. W. Rep. 802) 887
Vermont St. M. E. Church v. Bio«e (104 111.
206) 341, 417. 428, .504, 580
Verran v. Baird (Mass.) (22 N. E. Rep. 6-30
[18H9]) 880
Verzan v. Mc(i regor (23 Cal. 339) 90
Vetter V. Hudson (57 Texas 604) 316
TABLE OF CASES.
Ixxvii
Vicary v. Moore (2 Watts & S, 45) 574
Vicksburgh Water Supply Co. v. Gorman
(Miss.) (11 So, Rep. 680) 683
Vider v. Chicag:o (111. Sup.) (45 N. E. Rep. 7:.'0,
t)0 111. App. 595) 789
Vifreant v. Scully (20 111. App. 437, 20 Brad. 437
[18HC]) 81], 830, 838. 839
Vincent v. Cole (Moody & M. 257 [1828]) '569
Vinson v. Kelly (Ga.) (25 S. E. Rep. 630) 803
Voege V. Ronalds (31 N. Y. Supp. 353) 561
Vogel V. New York (92 N. Y. 10 [1883]). . . . 643, 665
V. Peck (111.) (-12 N. E. Rep. 386) 90, 796
Voght V. Buffalo (N. Y. App.) (31 N. E. Rep.
34a reversina 14 N. Y. Supp. 759) 156
Voorhees v. Combs (N. J.) (4. Vr. 494) 810
Vulcanite Fav. Co. V. Phila. Traction Co. (115
Pa. St. 280 [1887], s. c.
Atl. Rep. 777) .. . 445, 446
V. Ruch (Pa.) (23 Atl. Rep.
555) 891
W.
Wabash R. Co. v. Defiance (Ohio) (40 N. E.
Rep. 89) 883
Wabash, St. L. & P. Ry. Co. v. Parver (Ind.)
(12 N E. Rep. 296 [1887]) 640a. 654, 660
Waco, City of, v. Prother (Tex.) (37 S. W. Rep.
312) 555
Wade V. Haycock (25 Pa. St. 382)
238, 240, 256, 257, 697, 699
Wadley v. Davis (63 Barb. [N. Y.] 500 [1872]),
611, 627
Wadsworth v. New Orleans (La.) (19 So. 935). . 789
Wadswoi th v. Smith (L. R. 6 Q. B. 332), .
348, 414, 746
Wagener v. Butler (27 N. Y. Supp. 350) 222
Waggoner v. Stocks (41 111. App. 151) 702
Wagner v. Jennings (Tex.) (27 S. W. Rep. 888). 738
Wait V. Maxwell (5 Pick. 217) 25
Wakefield v. Fargo (90 N. Y. 213) 660
Wakefield & B. D. Bank v. Normantown Local
Board (44 L. T. 697) 516
Wakeman v. Wheeler, etc., Co. (101 N, Y, 205), 695
Walcott V. Lawrence Co. (26 Mo. 272) 143
Waldron v. American Wringer Co. (Mass.) (43
N. E. Rep. 81) 579
Walker v. Beecher (Com. PI.) (36 N. Y. Supp.
470) 344
V. Fitchburg (102 Mass. 407) 556
V. Fitts (24 Pick. 191) 670
V. Johnson (96 U. S. 424) 103
V. London & N. W. R. Co. (L. R. 1 C.
P. D. 518 [1876], 36 L. T. Repts. .53
[1876]) 674. 721, 724,726, 746
V. Orange (Mass.) (16 Gray 193 [i860]). 442
V. Railroad Co. (S. C.) (1 S. E. Rep. 366
[1887]) 103
V. Walker (5 Heiskell [Tenn,] 428) 834
V. Wilmington, C, & N. R. Co. (N. Car.)
(1 S. E. Rep. 366) 33
Walker et al v. Tucker et al. (70 111. 527 [1873]),
65, 669, 676
Wall V. East R. Ins. Co. (3 Dur. 264) 608
V. Gordon (12 Abb. Pr. N. S. [N. Y.] 349). 816
V. Trumball (16 Mich. 228) 844
Waller V. Dubuque (69 Iowa 541) 8.58
Wallace v. Goodall (18 N. H. 439) 891
V. Mayor of San Jose (29 Cal. 181). .35, 43
V. So. Cotton Oil (Tex.) (40 S. W. Rep.
399) 654
Wallis Iron Wk.s. v. M. P. Assn. (N. J.) (26 Atl.
Rep. 140 [1893]) 421, 438, 506, 761
WalUs V. Robinson (3 F. & F. 307) .5.58, 567
V. Smith (L. R. 21 Ch. D. 243).., 31 5. 318, 701
• V. Toledo A, A, & N, W. Rv, Co. (Mich.)
(40 N. W. R. 205 [1888]) 379
Wallman v. Society of C. (45 N. Y. 485) 670
Walls v. Bailev (49 N. Y. 474 [1872]) ...611. 619, 622
Walnut Tp.v.Rankine (Ia.)(22 Reptr. 7.50 [1886]) .522
Walsh V. Campbell (Sup.) (37 N. Y. Supp. 302). 702
V. Columbus (36 Ohio St. 169) 1.38
V. Curley (Com. PI.) (16 N. Y. Supp. 871) 38
V. Jenvey (Md.) (36 Atl. Rep. 817 [1897]),
691, 697, 703
Walsh V. New York City (20 N. E. Rep. 825. s.
c. 113 N.Y. 142 [1889]) 171,176. 179
V. St. Louis Ex. & Mu8. Hall Assn. (90
Mo. 4.59 [1886], 101 Mo. 5;^4. 16 Mo.
App. 502) 812, 813, 815
Walter Baker, In re (29 How. f r. 485 [1865]). .. 709^
Walters v. Senf (Mo. Sup.) (22 S. W. 511) 615
Walton V. Bryn Mawr H. Co. (Pa.) (28 Atl.
Rep. 48ft) 244
V. Develing (61 111. 201 [1871]) 859a
V. Mather (City Ct.) (24 N. Y. Supp.
307) 90. 97
Walworth v. Finuegan (33 Ark. 751) 703
Wandelt v. Cohen (Com. PI.) (::;6 N. Y. S. 811).. 860
Wangler v. Swift (90 N. Y. 38) 506
Wansbeck Ry. Co., In re The (L. R. 1. C. P.
269) 42.5, 506
Washburn v. Detinger (76 Hun [N. Y.] 141, 27
N, Y. Supp, 540) 687, 739
Washington Bridge Co. v. Land, etc., Co.
(Wash.) (40 Pac. Rep. 982) 474
Washington C. & A. T'p'ke v. Case (Md.) (30
Atl. Rep. 571) 888
Water Co. v. Ware (16 Wall. 566 [1872]),
638, 645, 646, 654
Waterman v. Waterman (27 Fed, Rep, 827) 90
Watkins v. Hodges (6 Har, &. J, [Md,] 45) . . , , 563
Watriss V. Pierce (32 N. H, 550) 20
Watson V, Ambergate (15 Jur. 448) .. 815
V. Gray'.s Harb, B, Co, (Wash.) (28
Pac, Rep, 527) 687, 694, 696
V. O'Neill (Mont,) (35 Pac, Rep, 1064),, 219
Watts V. Frenche et al. (19 :N. J. Eq. 407
[1869]) 63
V. Shuttleworth (5 H. & N. 2.35) 20
Waugaustein v. Jones (Minn.) (63 N. W. Rep.
717) 862
Waugh V. Beck (Pa.) (6 Atl. Rep. 923 [1886]). . . 83
Waugh, In re (i Ch, Div. .524) 273
Waul V. Hard ie (1 7 Tex, 5.53) 287, 242
Ward V. Hudson R, Bldg. Co. (N, Y,) (26 N, E,
Rep, 256 [1891], 125 N, Y. 230 [1891]),
318, 319, 326
V. Mathews (Cal.) (14 Pac. Rep. 604). ... 105
Warden v. Ryan (37 Mo. App. 466)..'. , .. 20
Waring v. Manchester, etc., R. Co. (7 Ha re 482,
2 Hall & Twelis [Ch.] 2.39 [18.^,0]) 425, 428, 438, 747
Warner v. Texas & P. Ry, Co. (17 Sup, Ct.
Rep. 147, .54 Fed . Rep. 92:.') 1 03. 105
Warren v. Chandos (Cal.) (47 Pac. Rep. 1.32). .. 157
V. Ferguson (108 Cal. .535, 41 Pac. Rep.
417) 507
V. Johnson (Kan.) (17 Pac. Rep, 592
[1888]) 70
V. Marus (7 Johns. 476) 326
Warren Co, v. Halbrook (118 N. Y. 586, 16
Amer. Repts. 788) 102
Warson v. McElroy (33 Mo. App. 553 [1889]). . 691
Warwick v. Grasholtz (3 Grant 234).. Ill
Weatherford, etc., R. Co. v. Granger (Tex.)
(22 S. W. Rep. 70) 49
V. Wood (Tex.) (29
S. W. Rep.
411) 103
Weaver v. Devendorf (3 Den. [N. Y.] 117) 845
V. Halsey (1 111. App. 558) 803
V. Powell (Pa.) (23 Atl. Rep. 1070
[1892]) 478. 580
V Snow (60 III. App. 624) ... 892a
Webb V. Corbin (78 Ind. 403) 794
V. School (3 Phila. [Pa ] 125 [1858]) 814
Webbe v. Romena O. S. Co, (.58 111. App. 222). . 69
Weber V. Hauke (4 Mich. 198 [1856]) 569
Webster v. Enfield (5 Oilman [111.] 298). . . . 4-39, 690
Weed V. Beach (56 How. Pr. [N. Y.] 470),
146, 155. 169, 172, 176, 178
Weeks v. Little (47 N. Y. Super, Ct, 1, 11 Abb.
N. C. 415,^89 N. Y. 566),
324, .326. 395. 473. 485, 595, 689
V. O'Brien (Super,) (12 N, Y, Supp, 720). •
(N, Y, App,) (36 N, E. Rep. 185. 141
N, Y. 199) 397. 439, 699, 702, 728, 745
v. Robis (42 N, H. 316) 577
Wegner v. Penna. Rv. Co. (55 Pa. St. 460) 243
Wehrli v. Reh woldt (107 111. 60) 805
Ixxviii
TABLE OF CASES.
Weidekind v. Twolume Co. W. Co. (Cal.) (25*
Pac. Rep. 311) 891
Weir Plow Co. v. Walmsley (110 Ind. -ZA-i) 20
Weis V. Devlin (67 Tex. 507 [1887], 3 S. W. Rep.
726) 676
Welch V. McDonald, 85 Va. 500 [1888], 8 S. E.
Rep. 711 [1888]) 320, 326
Wellert;. Goble (66 Iowa 113) 17, 19
Wf ller's Appeal (7 Ont. [Pa.] 594) 794
Welles V. ^ew York Central R. R. (26 Barb.
641) 864
Wellesley v. Mornington (11 Beav. 181) 859a
Wells V. Bd. of Ed. (78 Mich. 260). (44 N. W.
Rep. 2(')7 [1890]) 093, 703, 728, 738
Wells V. Caiiian (107 Mass. 514, 517) 676
V. Mich. Mut. L. Ins. Co. (W. Va.) (23 S.
E. Rep. 527 33
V. Wells (Sup.) (40 N. Y. Supp. 836) 797
Welsh V. Huckestein (Pa. Sup.) (25 Atl. Rep.
138) 620
V. St. Louis (73 Mo. 71 [1880]) 645
Welson V. School District (32 N. H. 118) 53
Wendt V. Vogel (87 Wis. 462) 428. 432, .553
Wen troths Appeal (82 Pa. St.) (1 Morris 469). . 862
Wentworth v. Cock (10 A. & E. 45). 9, 10,13,164,296
Werckineister v. Springer L. Co. (C. C.) (63
Fed. Kep. 808) 816, 817
Werner v. Humphreys (2 M. &. G. 853) 10, 675
Werslen v. Wood (6 term. R. 710) 415
West V. Berry ((Ja.) (25 S. E. Rep. 508) 42
V. Piatt (127 Mass. 367) 561, 567
V. Suda (Conn.) (36 Atl. Rep. 1015 [1897]). 739
V. Un. Tel. Co. v. Eubank (Ky.) (38 S. W.
Rep. 1068) 58
V. Utica (Sup.) (24 N. Y. Supp. 1075) 859a
W. Chicago Parii Commrs. v. Barber (62 111.
App. 108) 481
West Haven W. Co. v. Redfield (58 Conn. 39),
573, 561
Westerman v. Means (12 Pa. St. 97) 311
Western v. Pollard (16 B. Moii. [Ky.] 315). ... 216
Western & A. R. Co. v. Stafford (Cia.) (25 S.
E.Rep.656) . 892
Western Union R. Co. v. Smith (75 111. 496
[1874]) 123.578,579,590,601.629
Westei'n Union Telegfaph Co. v. Way (Ala.) 4
So. Rep. 844 [1887]) 95
Westminster, Town of, v. Willard (Vt.) (26
Atl. Rep. 952) 45
Westmoreland v. Porter (75 Ala. 452 [1883]).. 69, 719
Westwood V. Secretary of India (7 L. T. N. S.
736. 11 W. Rep. 261) 324, 468, 585, 595
Whalen v. Brennan (34 Neb 129) 148
Wharton & Co. v. Winch (19 N. Y. Supp. 477,
35 N. E. Rep. 589) 687
Wheatley v. Mercer (9 Bush. [Ky.] 704 [1873]).
851. 8.52
Wheaton v. Lund (Minn.)(63N.W.Rep.251). 257,276
Wheeden v. Fiske (50 N. H. 125) 238
Wheeler & W. Mfg. Co. v. Buckout (N.J. Sup.)
(:^6 Atl. Rep. 772) 891
Wheeling, City of, v. Baer (W. Va.) (15 S. E.
Rep. 979) 271
Whelan v. McCullough (4 App. D. C. 58) 219
V. Ansonia Clock Co. (97 N. Y. 293
[1884]) 676
V. Bold (5 Cent. Hep. 651) 438
Whelen v. Boyd (114 Pa. St. 228 [1886]) 439, 410
Whitaker v. Vanschoiack (5 Ore. 113 [1873]) ... 575
White V. Ainsden(Vt.) (30 Atl. Rpp. 972) 124
V. City of New York (Sup.) (44 N. Y.
Supp. 454 [1897]) 638
V. Fresno Nat. Bank (98 Cal. 166). (32
Pac. Rep. 979) 220,326
V. Harrigan (41 Minn. 414, 43 N. W. Rep.
89 [1889]) 731, 746, 748
V. Hewitt (1 E. D. Smith 395 [1852]) 700
V. Hopeman (43 Mich. 257) 106
V. Manne (26 Me 361) 669,678
V. McLaren (Mass.) (24 N. E. Rep. 911
[1890], 151 Mass. 553).. 216. 21!», 600, 703
V. Middlesex R. Co. (135 Mass. 216
[1883]) 86. 344,345
V. Miller (18 Pa. St. 152) 272
V. Oliver (36 Me. 95) 572, 703
White V. San Antonio W. W. Co. (Tex.) (29 S.
W. Rep. 252) 558, 843
V. S. R. & S. Q. R. Co. (50 Cal. 417
[1875]) 372,-545,552
V. School District (159 Pa. St. 201, 28
Atl. Rep. 136),
275, 326; 585, 670, 689, 698, 701, 703
V. Soto (82 Cal. 654) 572, 684
White Ld. Co. v. Rochester (3 N. Y. 463). . . 247
White S. M. Co. v. Gordon (Ind.) (4 N. E. Rep.
1053) 880
Whitehead v. Bank of B. (2 W. & S. 172). . . . . . 580
Whitely v. Barsley (L. R. 21 Q. B. D. 1.54) 518
Whiteman v. Mayor, etc. (21 Hun 117 [1880]),
428, 429, 439
Whitesell v. Hill (Iowa) (66 N. W. Rep. 894). . . 829
Whiteside v. United States (93 U. S. 247-257
[1876]) 52
Whitfield v. Zellnor (2 Cush. [Miss.] 663),
76, 674, 689
Whitford v. Laidler (94 N. Y. 14.5) 32
Whiting V. Ohlert (Mich.) 18 N. W. Rep. 219). . 105
V. Story Co. (54 Iowa 81) 766
Whittemore V. Hamilton (51 Conn. 153) 558
Whittesley v. Kellogg (28 Mo. 404) 890
Whittier v. Wilbur (48 Cal. 175) 762
Whitty V. Lord Dillon (2 F. & F. 67) 629, 838
Wiberly v. Matthews (91 N. Y. 648). 502
Wicker v. Hoppock (6 Wall. 94 [1867]) 82
Wickwire v. City of Elkhart (lud. Sup.) (43 N.
E. Rep. 216) 156
Widiman v. Brown (Mich.) (47 N. W. Rep. 231
[1890]) 66, 563
Wiggins V. Philadelphia (2 Brews. [Pa.] 444),
144, 146, 169, 178
Wiggins Ferry Co. v. C. & A. R. Co. (73 Mo.
389 [1 881 ]) 81
Wigglesworth v. DaUison (1 Sm. L. C. [7th ed.]
606) . 553
Wilcox V. Arnold (Mass.) (39 N. E. Rep. 414). . . 49
V. Plummer (4 Pet. 172) 121
V. Wood (9 Wend. 346 [1832]) 626
V. Stephenson (.30 Fla. 377, 11 So. Rep.
659) 417. 427. 428, 445
Wilcox Silv. P. Co. V, Schimmel (59 Mich. 524). 859a
Wilcus V. Kling (87 111. 107) 317
Wilde V. Clarkson (6 Term R. 303) 324
V. Wilde (Neb.) (.56 N. W. Rep. 724) 87
V. Hexter (.50 Barbour 448) 877
Wildey v. Fractional School (25 Mich. 419). 442, 701
V. Paw Paw (25 Mich. 419) 341
Wilensv. Kling (87 111. 107) 319
Wiles V. Hoss (Ind.) (16 N. E. Rep. 800 [1888],
114 Ind. 371 [1887]) 183
Wiley V. Goodsell (Sup.) (38 N. Y. Supp. 376). . 349
Wilgus V. Whitehead (6 W. N. of C. 537). 69. 131, .563
Wilkin V. Ellensburgh W. Co. (1 Wash. 236). . . .590
Wilkins v. Bromhead (6 M. & G. 963) 271
V. Detroit (40 Mich. 120) 154
Wilkinson v. Detroit Steel & Sprg. Wks. (73
Mich. 405) 243
V. Heaven rich (Mich.) (26 N. W.
Rep. 139) . 105
V. Hoffman (25 Fed. Rep. 175) .. 766
V. Johnston (Tex.) (18 S. W. Rep.
746) 121
V. Williamson (76 Ala. 163 [1884]),
611, 627
William Farr Co. v. Kinebrough (Kv.) (34 S.
W. Rep. 528) .' 809
W. & H. M. Goulding v. Hammond (C. C.
App.) (54 Fed. Rep. 689) 96
•Wm. Wharton Co. v. Winch (N. Y. App.) (35
N. E. Rep. .589. 19 N. Y. Supp. 477) 687
Williamette S. M. Co. v. Los Angeles C. Co.
(Cal.) (29 Pac. Rep. 629 [1892]) 220
Williams, Ex parte (L. R. 7 Ch. D. 138) 273
WiUiams v. Androscoggin & K. R. Co. (36 Me.
201) 730
V. Boehan (Super. Ct.) (17 N. Y.
Supp. 484 [1892]) 228, 584
V. The Chicago, etc.. R. Co. (112 Mo.
463 [1892]. 20 S. W. Rep. 631).
341, 364, 381, 382, 384. 414, 41.5,
426, 427, 428, 439, 454, 514, 703
TABLE OF CASES.
Ixxix
Williams v. Fitzmaurice (3 H.& N. 844 [1858]),
2:;J8, 400, 5t)9, 589, 600
V. Ford (Tex. Civ. App.) ('^7 S. W.
Rep. 723) 73
V. Gilmaii (3 Greenl. S>76) 612
V. Kee<Jh (I Hill [N. Y.] 168) 256
v. Kenney (14 Barb. 631) 266
V. Shields (Coin. PI.) (9 N. Y. Supp.
502) 519
V. Storms (6 Cold. [Teun.] 203) 558
V. United States (26 Ct. of CI. 132)... 739
V. Vanderbilt (28 N. Y. 217) 678
Williamson v. Brandenburg (Ind.) (32 N. E.
Rep. 1022) 892a
V. Wadsworth (49 Barb. 294 [1867]), 863
Willits V. C. B. & K. C. R. Co. (Iowa) (55 N. W.
Rep. 313) 891
Willis U.Melville (19 La. Ann. 13 [1867]) 691
Wills V. Webster (Sup.) (37 N. Y. Supp. 354),
324, 325, 689
V Abbey (27 Tex. 202) 85, 515, 849a
Wilmot V. Smith (3 C. & P. 453) 566, 680
Wilson V. Baltimore (Md.) (34 Atl. Rep. 774),
168, 169
V. Bauman (80 111. 493 [1875]),
616, 687, 690, 691, 813
V. Brennan (80 Til. 493) 627
V.Brett (11 M. &W. 113) 827,828
V. Furness Ry. Co. (L. R. 9 Eq. 28). . . . 706
V. Hind (Cal.) (45 Pac. Rep. 695) 762
V. Kings Co. El. R. Co. (21 N. E. Rep.
1015 [1889]) 814
V. Knott (5 Humph. [Tenn.] 473). . 676, 677
V. New Bedford (108 Mass. 261-266). ... 643
V. Northampton Ry. Co. (L. R. 9 Ch.
App. 279). 706
V. Peto (6 Moore 47) 275, 640a
V. Roots (111.) (10 N. E. Rep. 204 [1887]),
324, 709
V. School Dist. (32 N. H. 188) 557
V. Webber (Sup.) (36 N. Y. Supp. 550), 17, 20
V. White (71 Ga. .506) 646
V. York & Md. Line R. Co. (Md.) (11
Gill & J. 38, 58 [1839], 9 Peters
327) 428, 433, 439, 495, 503, 504
Windhorst v. Deeley (2 C. B. 253) 188
Windinuller v. Pope (N. Y.) (14 N. E. Rep. 436
[1888]) 690
Wing v. Glick. 46 Iowa 473 [1881]) 32
Winn V. Bull (L. R. 7 Ch. D. 29 [1877]). . .97, 183, 188
Winnepiseogee Lake Co. v. Young (40 N. H.
420) .... 892a
Winnepiseogee Paper Co. v. New Hampshire
Land Co. (C; C.) (59 Fed. Rep. 542) 235
Winona v. Minn. R. Constr'n Co. (27 Minn. 415) 701
Winter, In re (8 Ch. D. 225). 273
Winter r. Baker (50 Harb. 432 [1867]) 58
Winterbottom v. Wright (10 M. & W. 109-111),
277, 656, 842
Winters v. Fleece (14 Lea [Tenn.] 546) 720
Wisconsin Oconto Water Co. v. Nat. Found &
Pipe Wks. (C. C. A.) (59 Fed. Rep. 19) 766
Wisconsin Red Brick Co. v. Hood (Minn.) (69
N. W. Rep. 1091) 256,277,468
Wise V. Wilson (1 C & K. 662) 805
Wiseman v. Thompson (Iowa) (63 N. W. Rep.
346) 678
Witmark v. Manhattan Ry. Co, (N. Y. App.)
(41 N. E Rep. 78) 884
Wittenberg V. Friederichs(Sup.)<40N. Y.S.895) 652
"Witz V. Tregallas (Md.) (33 Atl. Rep. 718),
432, 436. 473, 478
Wohlreich v. Fettretch (21 N. Y. St. Reptr. 56
[1889]) 698,700, 701
Wolf V. Gerr (43 Iowa 339) 703
V. The Des Moines & Ft. D. Ry. Co, (64
Iowa 380) 316, 317, 318, 380, 553, 849a
V. Michaelis (27 111. App. 336 [1S88]),
414, 415, 427
Wolfe V. Hawes (20 N. Y. 197 [1859]). . .422, 426, 438
Wolke V. Fleming (Ind.) (2 N. E, Rep. 325) .... 105
WoUensack v. Briggs (111.) (23 The Reptr. 399,
1 1 9 111. 453 [1887]) 700, 709
Wonderly v. Holmes Lumber Co. (56 Mich. 413
[1885]) 122
Woodbridge v. De Witt (Neb.) (70 N. W. Rep.
506) 791
WoodburgG.Co. v.MuUikin (Vt.) (30 Atl. Rep.
28).
126
Woodbury r. Worthy (3 Me. 85 [1824]).. 484, 485, 491
Woodrow V. Havvving (Ala.) (16 So. Rep. 720),. h'35
Woodruff V. Hough (Ct.) (91 U. S. 590 [187.5]). . 445
V. Imp. F. Ins. C >. (S3 N. Y. 133) . . . . 891
V. Rochester & P, R. Co. (108 N. Y.
39 [1«88]). . . .371, 372, 373, 379. 491,
.545, 5.53, 555, 558, 841, 849a
Woodward v. Jewell (25 Fed. Rep. 689 [18^5]) 216
V. Fuller (80 N. Y. 312) 700, 701, 702
Woodworth v. Bennett (43 N. Y. 273) 147, 148
Wood V. Abbott (5 Blatchf. U. S. 325) 818
V. Boney (N. J.) (21 Atl. Rep. 574 [1891]) 326
V. Brady (14 Sup. Ct. Rep. 6) 727
V. C. S. F. & C. R. Co. (39 Fed. Rep. 52
[1889]) 396, 414, 421, 425, 426,
428, 431,439
V. Chicago (111.) (26 N. E. Rep. 608) 154
V. Fort Wayne (119 U. S. 312 [1886]),
324, 547, 552, 569, 577, 584
V. Helme (14 R. I. 32.5) 527
w. Humphrey (114 Mass. 185) 345
V. Lafayette (46 N. Y. 484) 407
V. Malone (113 Pa. St. 551) 689
V. Miller (55 Iowa 168) 572
V. Moriarity (R. I.) (9 Atl. Rep. 427). . . .123a
V. N. W. Ins. Co. (46 N. Y. 421) 892
V. Pleasant Ridge (12 Ohio Cir. Ct. Rep.
177) ^ 177
V. Silcock (32 W. R. 845 [1884], 50 L. T.
251) 796.797
V. Vt. Cent. R. Co. (24 Vt. 608 [1«52]).
621, 623, 629
Wood Mach. Co. v. Smith (Mich.) (15 N. W. Rep.
906) 340
Woods V. Monell (1 Johns. Ch. 502) 487
Woolner v. Hill (93 N, Y. 576) 439
Wooten V. Read (2 Sm. & M. [Miss.] 585) 703
Worcester Med. Inst. v. Harding (11 Cush.
[Mass.] 28.5) 702
Worden v. Searles (121 U. S. 14) . . . 859a
Workman et al. v. Chicago (61 111. 463 [1871]).. 507
World's Columbian Exposition v. Liesegang
(.57 III. App. 594). 682
World's Fair Hotel v. Courtright (57 111. App.
281) 421
Worsley v. Wood (6 T. R. 710) 414
Worthington v. Boston (Mass.) ("41 Fed, Rep, 23
[1890]) 161, 163. 164
V. Oak & H. P. Imp. Co. (Iowa)
(69 N. W. Rep. 258) 809
Wortman v. Kleinschmidt (12 Mont. 316, 30
Pac. Rep. 280) 545, 566
Wray v. Evans (80 Pa. St. 102 [1875]) 667
Wren v. Indianapolis (96 111. 206) 426
Wright V. Comrs. (6 Mont. 29). . 176
V. Meyers (Tex.) (25 S. W. Rep. 1122
[1894]) 321, 326, 441, 468, 505
V. Petrie (1 Smed. & M. Ch. (Miss.)
282) 674
V. Reusens (N. Y. App.) (31 N. E. Rep.
215) 491
V. Terry (Fla.) (2 So. Rep. 6 [1887]) 17
V. The People (112 111. 540 [1884]) 898
V. Wright (1 Litt. 179 [1822]) 572, 575
Wyatt V. Harrison (3 B. & Ad. 871) 643
V. Lynchburg & D. R. Co. (N. C.) (14 S.
E. Rep. 683 [1892]) 436
V. Marq. Hertford (3 East 147) 553
Wyckoff V. Meyers (44 N. Y. 143 [1870]),
388, 428, 439, 445, 473, 474
V. Taylor (Sup.) (43 N. Y. Supp. 31),
699, 738
Wyley Canal Co. v. Bradley (7 East 368) 643
Y.
Yale V. Curtiss (N. Y. Ct. of App., Feb. 1897).. 125
Yarbrough v. State (Ala.) (16 So. Rep. 758). ... 875
Yarnold v. Lawrence (15 Kans. 126) 138, 163
Yater v. Mullen (24 Ind. 277) 272
Yates V. Ballentine (56 Mo. 530 [1874]). .397, 701, 703
Ixxx
TABLE OF CASES.
88
Yeaw V, Williams (R. I.) (23 Atl. Rep. 33
[1892]) 886
Yeisley v. Bundel (Pa.) (15 Atl. Rep. 854 [1888]). 567
Yeomans v. Parker (Mich.) (63 N. W. Rep. 316). 731
Yoeiiian v. Mueller Qi'd Mo. App. 343 [1889]). ... 66
Youug V. Clapp (111. Sup.) (35 N. E. Rep. 372) . . 95
YouuK Lock Nut. Co. v. Biownley Manufg. Go.
(N. J. Ch.) (34 Atl. Rep. 947) .351, 747
Young V. Mayor of Leomiiigton [18831) 138
V. Preston (4 Cranch 239) 687
Youngstown Bridge Co. v. Barnes (Tenn.) (39
S. W. Rep. 714) 892
Tutzy V. Buffalo Valley R. R. (1 Walker 463)... 490
Z.
Zaieski v. Clark (44 Conn. 218) 340, 428
Zender v. Seliger-Toothill Co. (Sup.) (39 N. Y.
Supp. 346) 808
Zerger v. Sailer (6 Binn. [Pa.] 24) 474
Zimmerman v. Germ. Luth. Ch. (11 Misc. Rep.
[N. Y. Super. Ct.] 49, 31 N. Y.
Supp. 845..'. 392, 428, 429
V. Jourgensen (14 N. Y. Supp. .548
[1891]) 702,728, ^31
Zottman v. San Francisco (2o Cal. 96 [1862]),
43, 53, 555
ENGINEEEING AND AECHITEOTURAL
JURISPEUDENOE.
PART I.
LA W OF CONTRACTS IN GENERAL.
CHAPTER I.
LAW OF CONTRACTS IN GENERAL.
ESSENTIAL "ELEMENTS OF A CONTRACT. LEGAL AND ILLEGAL CONTRACTS.
THE PARTIES TO A CONTRACT.
1. Introduction. — Engineering and architectual construction is rarely
undertaken by the owners or proprietors of the structure. Works of mag-
nitude or importance require the services of engineers, architects, and skilled
mechanics who have had practical experience. Structures are not erected
by the parties who own them and are to control them, but by parties who
have no interest in them except what they assume for hire, or the profit
that they can make out of the job. The relations created are those of .an
employe or of an independent contractor, and whichever r61e is assumed,
they are relations and obligations growing out of an agreement or under-
standing called a contract. All work of importance is the subject of a con-
tract, and it is manifest at the beginning, that a clear understanding of the
legal status of the parties engaged upon construction will require some-
knowledge of the law of contracts. The reader is first introduced, there
fore, to the principles underlying the law of contracts.
To assume contract obligations, the law requires that the parties shall
observe certain formalities and that their intentions shall be evidenced by
overt acts, which may be made a matter of record. Part of the requirements
are fundamental principles of the English common law, some are the effect
of statutory limitations, while others are the result of court procedure, and
not a few rest upon that broad, yet vague, ground of "public policy.*'
2. Essential Elements of a Contract. — Every binding contract must con-
tain four essential elements, viz. : 1. Two parties with capacity to contract.
2. A lawful consideration: a something in exchange for its legal equivalent,
2 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 3.
2k quid pro quo. 3. A lawful subject-matter, whether it be a promise, an
act, or a material object. 4. Mutuality: a mutual assent, a mutual under-
standing, and a meeting of the minds of the parties.' These elements of a
simple contract are of the foundation of the English common law, and no
agreement, so called, is a binding contract unless it embodies each and all of
these essentials. Without them our courts decline to recognize the binding
effect of the agreement and the parties are free to fulfil their obligations or
not at their pleasure.*
The order in which these elements are given was adopted because it
seems the safest and most rational treatment of the subject of contracts
A contract requires that there shall be, first, two competent parties; secondly,
a lawful consideration; thirdly, a lawful subject-matter; and lastly, a meet-
ing of the minds of the parties with regard to the parties, the subject-mat-
ter, and the consideration. If these essentials were considered in the order
given, there would be fewer cases of hardships and less litigation over con-
tract rights. The mischief frequently results from the parties mutually con-
senting to be bound and exchanging the considerations before the questions
of competency of the parties and the legality of the act undertaken have
oeen considered. The order adopted is that usually followed in written con-
tracts. The author has followed, as closely as a liberal treatment would
seem to permit, the lines of an engineering and architectural construction
contract, and throughout, so far as possible, he has cited cases that have
arisen under such contracts.
3. The Introduction to a Contract. — Contracts are generally begun by
introductory clauses peculiar to the law, though no special form is required.
The forms employed are as various and eccentric as the persons who frame
them; but of them all, it is submitted that either of the following forms
will answer in any contract for construction work :
[Heading.]*
" THIS AGEEEMENT, made and entered into [concluded] this
day of in the year by and be-
tween etc., etc.,"
is a concise and direct introduction, and it is the most common form used
in all contracts.
" [THESE] ARTICLES OF AGREEMENT, made and entered into
between of and of on this day
of "—
is a good and popular clause. These are mere forms, and their selection
fi mere matter of taste with the draftsmen.
^ 1^ the contract be a written instrument void is equivalent to finding that there was
it must be delivered. Leonard «. Kebler's no written contract at all. Rebman v.
Adm'r (Ohio Sun.), 34 N. E. Rep. 659. San Gabriel Val. Land & Water Co. (Cal.),
' A finding that a written contract was 30 Piic. Rep. 564.
*S66 Sec. 200, Chap. VIII. infra.
§5.] LAW OF CONTRACTS. 3
4. Designation of the Parties. —
— " by and between (name of owner, company, board, city, university,
or other corporation) , of the City of [Town of ] , County
of , State of , party of the first part, and
(name of contractor or cotripany-* of the City of , CoUUty of ,
State of , party of the second part/^
The parties of a contract are designated as party of the first part and
party of the second part, the former being conventionally applied to the
person who contracts to sell, to lease, or to have performed the subject-mat-
ter of the contract, and the latter title to the person agreeing to take or
purchase the article or to perform the contract. These terms are frequently
avoided by using instead the names of the parties, referring to them as the
Said ,V^Q Said Contractor, \X\q Said Owner, the Said Board, City,
Vompany, University, etc. This avoids confusion and the danger of the
parties forgetting to which party he or they belong. A man will hardly
fail to recognize his own name or that he is a contractor, when he might not
remember that he is the party of the second part. When reference is made
to the parties as the City, Board, Company, etc., or as the Contractor ox the
Engineer, it is customary and prudent to insert a clause explaining who is
intended and included within the terms, as in the following clauses:
"That whenever and wherever in this contract the phrase^ party of
the second part,^ or the word ' Contractor,' or a pronoun in place of
either of them is used, the same shall be taken and deemed to mean and
intend the party of the second part to this agreement (his [their] heirs,
executors, administrators, or assigns).
" That whenever the word * Engineer ^ is used in these specifications,
or in this contract, it refers to and designates the Chief Engineer of
the owner, company, or city for the time being, acting either directly
or through the Deputy Chief Engineer or any Assistant or Division
Engineer having general charge of the work, or through any Assistant
or any Inspector having immediate charge of a portion thereof, limited
by the particular duties entrusted to him.
" That whenever the word * Owner,' * Company,' or ' City ' is used in
these specifications, or in this contract, it refers to and designates the
parties of the first part to this agreement (his [their] heirs, executors,
administrators or assigns) (or its successors or assigns)."
AS KEGARDS THE PARTIES.
5. Parties to the Contract. — There must be two parties to every con-
tract, the one who is bound to perform the contract and the other who
is entitled to have it performed.^ A person cannot contract with him-
' A contract may be made to ray some though by the law of merchants' bills and
unknown party to be ascertained a some notes are placed upon a footin|i: peculiar ta
future time upon a contingent event. tbemselves. An advertisement offering a
Notes paynb'C to bearer, or to an indorser, rewArd is an offer only, and is not a con-
my be meniioned as such contracts, traN. u^tfi accepted by the person who per-
4 ENQINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 6.
self ;' and a promise to pay money to oneself is not a promissory note.' One
and the same person cannot be party to a contract on both sides; such an in-
strument can create no liability or right to a contract. Companies are some-
times formed into departments and their accounts kept separate and distinct
but such departments cannot enter into agreement between themselves, nor
assume obligations that can be enforced. The departments must each
be independently incorporated and have a separate existence.' The same
person cannot be party to both sides, although other parties are joined with
him on one side or the other; and an agreement in such a form creates no
legal right or liability. The reason of this is that it is impossible for a man
to sue himself.* Notes or contracts made by several, jointly or severally, can-
not, however, be avoided for this reason.* For the same reason it has beeji
held that a partner cannot contract with his firm, and that two firma
having a common partner could not incur liability by contract.* It has
been held (1824) that the engineer of a bridge who was a shareholder in a
bridge firm could not maintain an action against his firm, being himself a
partner.* The tendency to-day is to regard a partnership in the same light
as a corporation, to treat it as an entity, an artificial body independent of
the partners who comprise it. On this theory it has been held that firma
having a common partner can sue each other in equity or in those states
where the code is established." Agreements between partners have been
allowed in equity as matters of account in settling affairs of the partner-
ship.'' It is hardly necessary to say that one company may contract with
another even though there are directors in one that hold a like office in the
other; the company or corporation being regarded as a creation of itself,
independent of the persons who represent it.
6. Only Parties to Contract are Bound.— Generally speaking, the legal
effect of a contract is restricted to the parties and no right or liability can
result to a person who is not a party.' When a contract is made with two
or more persons for some act to be done or payment to be made to one of
them only, the right to have it done or paid accrues to all the persons, who
must all join in suing upon it, although only one is to have the benefit."
7. Legal Representatives of the Parties.— In drafting construction con-
tracts it is usual to provide for the death or incompetence of either party
by making the party's heirs, executors, administrators, or assigns of a per-
son, or the successors and assigns of a corporation, parties to the contract,
after the following manner:
forms the services for which the reward is * Leake's Digest of Contracts 440.
offered. ^jvioneypeuny v. Hartland, 1 Car. A
"2 Wall. 78, 36 Fed. Rep. 213. Payne 353
» Con\monwialth v. Dallinger, 118 Mnss. « Ames' Cases on Partnership, chap yl,
439; ofhgr cases in Ames' Cases on Bills ' Leake's Digest of Contracts 440
and Notes 133 s 3 Amer. & Eng. Ency. Law 868.'
» Grey v. Ellison, 1 Giff. 438. • Leake's Digest of Contracts 443.
§9.] LAW OF CONTRACTS. 6
" The said Party of the Second Part [the said , or the said Builder,
or the said Contractor] does hereby, for himself, his heirs, executors,
and administrators, covenant, promise, and agree to and with the said
Party of the First Part [the said , or the said owner, company, or
city], his (their) executors, administrators, or assigns [or its successors
and assigns], that he, the said , his (their) executors, administra-
tors, etc., shall or will, for the considerations hereinafter mentioned,
etc., erect, build, etc/' *
In case of death or assignment these parties, who may be called second-
ary parties, become the representatives of the principal party and take his
place, so far as is possible.
8. The Representatives after Death, or Changes Effected by Law. —
Executors and administrators are the personal representatives of a party as
to his personal estate after his death. The right to enforce certain con-
tracts of the party whom they represent has been recognized from the
earliest times.' This right belongs exclusively to the executor, or adminis-
trator, or successors, and it cannot be transferred to other parties by words
introduced into the body of the contract. The personal representative may
maintain an action to recover money payable to the person he represents,
though the contract failed to make the money paj^^able to his executor or
administrator. If the contract made it payable to the contractor or his
assigns, or to his heirs or executors, the personal representative may recover
without even averring that the money has not already been paid to the
heirs.' So, too, the personal representative is liable on the contract, although
not named in the terms.* The executor or administrator has been held
liable even when the heirs were named and the executors were not.' If a
house is to be completed before a certain time, the contractor's executor or
administrator is bound to perform the contract, or to enforce its perform-
ance on the part of the owner. The heir cannot enforce its performance
even if the profits are partly in lands." In the interests of the estate the
personal representative may rescind the contract of his decedent, with the
consent of the company or other party.' It is a presumption of law that
parties to a simple contract intend to bind not only themselves but their
personal representatives.*
9. Executor or Administrator Takes Benefits and Burdens of Contract. —
An executor becomes entitled to the benefit of the contracts of a deceased
contractor for the supply of materials^ or for the execution of works remain-
ing incomplete at his death that do not involve the personal skill and
ability of the contractor; and he is entitled as executor to complete the
^ The representative may be mentioned ' 7 Amer. & Ensr. Ency. Law 262.
as in the form given in Soc. 4, page 3, ^ 7 Amer. & Eng. Fncy. Law 326.
which is simpler in tnat it avoids the con- " 7 Amer. & Eng. Ency. Law 327.
stant repetition of the wcrds " heirs, ex- « Crans -?). Kans. Pac. R. Co., 131 CF. S.
ecutors, administrator, or assigns *' in the clxviii (1879).
text of the contract. ' 7 Amor. & Eng. Ency. Law 327.
» Pollock on Contracts 206. s 2 Parsons on Contracts (6tli ed ) SSa-
6 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 10.
works, and to recover their yalue for the benefit of the contractor's estate
In the case of an ordinary building contract undertaken and commenced
by the deceased builder, the executor may complete it and recover the price
in his representative character/ A contract to build a lighthouse was held
to be discharged by the death of the contractor, on the ground of its being-
a matter of personal skill and science."
10. Contracts for Personal Skill of Contractor. — AVhether or not the
executor or administrator of an estate can carry ont and receive the benefits
of the contractor's contracts depends upon the character of the work. It
may well be doubted that the representative of a physician, lawyer, or
engineer would be allowed to step into the shoes of the deceased. A con-
tractor or builder may have acquired a reputation in the construction of
a particular kind or class of work, in which his personal skill and proficiency
are the important consideration in employing him. If this can be proved,
then the contract cannot be performed by the executor, administrator,
or the assignee.' If the contract is not founded upon personal relations,
or does not require personal skill, it survives to the executor or administra-
tor, and the estate may be held liable for a breach committed after as well
as before the death of the contractor.* It has been held in New York
State that a contract to do certain repairs on a building for a specific
sum is not a personal contract, which is terminated by the death of the
owner, but the contractor can recover of the administrator for work done
thereunder after the death of the owner, though the owner devised the
property and the devisee directed the contractor to continue the work.
Ordinary contracts for engineering and architectural work pass to the con*
tractor's legal representatives, who take the burdens as well as the bene*
fits." A coat ordered of a tailor, who began to make it and died before
completion, was completed and delivered by his administrator, who re-
covered the price in his representative character.' *
11. Executor Named in Contract. — It is not necessary tnat the executor
or administrator be named in terms; if the contract be of such a character
that it survives, the personal representative of the contractor is liable upon
it.^ If the executor be named, it is evidence that the parties did not con-
sider the contractor's services as personal. If the contract is between a city
S' llman v. Northup. 109 N. Y. 473; Pol- Siboni v. Kirkman, 1 M. & W. 418.
lork on Contracts 206; 126 K. Y. 45. As to what contracts will be considered
' Leake's Digest of the Law of Contracts, personal, see Robinson v. Davidson, L. R.
1254. 6 Excb. 269, 274: Cooper -». Jarman, L. R.
? Wentworth v. Cock, IDA. & E. 45. 3 Eq. Cas. 98; Dickinson «. Callahan, 19
3 Robinson «. Davidson, L. R. 6 Exch. Pa. St. 227.
269; and see Lloyd's Law of Building, § 12. The contract of an author to write a book
••Cooper 00. Jarman, L. R. 3 Eq. 98; 7 is discharged by his death Marshall v.
Amer. & Eng. Ency. of Law 326. Broadhurst (Eng.), 1 C. & J. 403.
6 Russell 1). Biickhout (Sup.), 34 K Y. ' Werner v. Humphreys, 2 M. & G. 853.
Siipp. 271, Dykman, J., dissenting. ^ Quick v. Ludburrow, i Bulstr. 30; 7
•Wentworth v. Cock, 10 A. & E. 45; Amer. & Eng. Ency. Law 326.
* See Sec. 12, infra.
§ 12.] LAW OF CONTRACTS. 7
and a corporation, "its successors and assigns," for erecting waterworks
and furnishing water to the city, it is assignable by the corporation/ If a
party contract for himself and his executors to build a structure and die,
the executors must go on or they will be liable for damages for not com-
pleting the work. If they do go on, they may recover as executors and the
money when recovered will be assets in their hands." Hence the advis-
ability of a contractor's making his executor or administrator a party to his
contract.' Contracts founded on personal qualifications, as skill, ability, or
integrity, such as the employment of an agent, a servant, an artist, an
author, an architect, and an engineer, terminate with the death of the
employer or employee in the absence of express stipulation.*
A contract for the employment of an agent by a partnership is dis-
charged by the death of one of the partners.^ Therefore the legal repre-
Eontatives cannot enforce such agreements; and frequently, if the contract
be for a completed structure or piece of work, the representatives cannot
recover for the services performed.
12. Executor's Liability on Contracts and for Torts of Party. — An exec-
utor or administrator has power to complete a contract made by the person
he represents, but he cannot by virtue of the general powers of his office
make contracts which shall bind the decedent's estate. The effect of such
contracts is to bind the representative.* For goods or materials purchased
for the benefit of the estate he incurs a personal liability.' This would not
apply probably to materials purchased in the execution of a building con-
tract of decedent, as executor or administrator.
At common law no action could be brought against the executor or
' Carlyle L. W. & P. Co. v. City of tion between real and personal assets
Carlyle (111. Sup.), 29 N. E. Rep. 556. is not so marked in considering contract
* Marshall v. Broadburst, 1 C. & J. 403. obligations. 4 Gray's Ca?es on Real Prop-
3 It may be asked why the word "heir" erty" 643. There is little use of the
is employed, as if it were possible for a word, but it is and will be used, for law-
party to bind his heirs to perform cove- yers are slow to make changes in old and
iiaiits to build, or to assume contractual established forms. Like the expression
obligations, since the courts have held "work and labor" in the common counts,
that the executor is the one who is liable it is used because others have used it. but
though he be not mentioned in the con- it would be difficult to distinguish between
tract By the common law contractual work and labor. To be safe and avoid
rights went to the executor and adminis- unforeseen complications both the words
trator on death of the contractor, with all are used, and it is recommended that the
personal property, choses in action, etc. word "heirs'* be inserted, as it is good
His estates in fee simple were liable in the usage. The reader may reasonably ex-
hanc^s of the heir only, for debts by spe- claim. What a blessing it would be if some
cialty in which the heir was named. 4 profound scholar of law would come for-
Gray s Cases on Real Property 642. It ward and explain away the abundance of
therefore was necessary tiiat the heir should meaningless words that pervade legal
be named in the contract, and that it should documents, and expunge the surplusage
be under seal, if the owner or company . imposed by ancient laws and practice that
would have any claims on the real estate; still pervades our legal instruments I
by wh ch it is probable that it became the •* 7 Amer. & Eng. Ency. Law 262 and
custom to draw c instruction contracts as 326.
specialties In the United States gener- '» 7 Amer. & Eng. Ency. Law 326.
ally, a man's property, real and personal, * 7 Amer. & Eng. Ency. Law 299.
is liable for his debts, and the distinc-
S ENGINEERING AND AlWHITEGTURAL JURISPRUDENCE. [§ 13.
administrator for a tort committed by the deceased person whom he might
represent. T,he word " tort " includes acts of trespass, trover, false impris-
onment, assault and battery, slander, deceit, etc. Under that law it has
been held that a complaint alleging that a contractor was prevented by
owner from performing work under his contract and asking damages result-
ing from the loss of profits which he expected to make was an action in tort,
which did not survive the death of the owner.^ It has been held that if by
reason of a tort the estate of the deceased person has derived pecuniary profits,
that the representative could be compelled to account to the party injured.'
13. Assignee of Contractor or Owner. — The word "assigns" is in common
use and is a desirable, though perhaps not a necessary word. It should be
omitted if the contract is a contract for personal skill or if it contains a
clause forbidding an assignment, as it tends to show a contrary intention.
An assignee would probably be bound without being named in the contract,
or at least he could take no benefit without assuming the burdens." An
assignment of a contract in express violation of a positive prohibition is
void, and the party claiming through such an assignment is entitled to no
relief in equity.* *
Contracts for the performance of personal duties or services are not assign-
able so as to confer the right upon the owner to command the services or to
compel him to accept performance by the assignee. One who has con-
tracted to perform work which requires skill and science cannot impose,
another in his place without consent of the other party. ^ If the contract
is given to the contractor because of his peculiar proficiency and skill in
executing the work required to be done, then it can be assigned only by
consent of the parties to the contract, which may be properly established by
facts and circumstances showing his assent. Evidence tending to show
Buch assent is admissible."
A contract for the erection of a lighthouse has been held one for per-
sonal services which could not be completed by the representatives of the
contractor. ^
The introduction of the word assigiis in the instrument may be evi-
dence that the parties anticipated the possibility if not the probability of
its assignment, and it is therefore sometimes omitted rather than to raise
such a presumption. Thus an agreement or promise to a company, its
assigns or successors, will enable the assigns and successors to complete
works started by the company, and to enforce promises made to it, when the
execution of the work is the essence of the agfreement.®
'Jenkins «. Bennett (S. C), 18 S. E, McCarty, 45 Mo. 106; Bethlehem r. Armis,
Rep. 929. 40 N. H. 34; Haskell v. Blair, 3 Cush.
«7 Amer. & Eng. Ency. Law 333. (Mass.) 534.
« 29 Amer. & Eng. Ency. Law 978. « Crawford v. Wolf, 29 Iowa 567 [1870].
^ Griggs «. Landis, 19 N. J. Eq. 350 [1868]. ^ Wentworth v. Cock, 10 A. & E. 45.
n Amer. & Eng. Ency. Law 832; Mun- « Michigan M. & C. R. Co. v. Bacon, 33
sell V. Temple, 3 Gillman 93; Lansden v. Mich. 44« [1876].
* See Sees. 289-296, infra.
§ 1^1 LAW OF CONTRACTS. 9
14. What Contracts and Claims are Assignable. — Construction contracts
are in general assignable, if there be no clause contained expressly forbid-
ding an assignment, and if the statute authorizing the work does not pro-
hibit it, and such an assignment is valid. Any executory contract, not
necessarily personal in its character, and which is consistent with the rights
and interests of the adverse party, may be as fairly and sufficiently executed
l)y the assignee as by the original contractor, if the contractor has not dis-
qualified himself from its performance.' A contract to do work on a street
•can therefore be assigned, and if the assignee fulfills the conditions of the
■contract he can enforce it and recover the contract price. ^ The assignment
-of a contract for cleaning streets is not against public policy so long as the
city retains the personal obligation of the original contractor and his sure-
ties,^ and an assignee can maintain an action in equity for a division of the
profits of a building contract if he has performed his undertakings.* A con-
tract to put on a gravel roof, to be done in first-class shape and guaranteed
for a certain time,* and a contract to drill an oil-well,® have been held
such contracts as might be sublet or assigned, when it was not shown that
the contractor was specially fitted to do the work and was employed on
account of his knowledge, experience, or pecuniary ability.
15. Contracts Awarded to Lowest Bidder may be Assigned. — Contracts
awarded to the lowest bidder after advertising for proposals are not of a
personal character, requiring rare genius or extraordinary skill, but may be
assigned. The public are invited to bid for and take these contracts regard-
less of professions, trades, or occupations. Aside from the discretion usually
vested in the board to reject all bids when they deem it for the public
good, or the bid of any party who may have proved delinquent or unfaithful
in any previous contract, there is no restriction upon the capacity of the
contractor. He is not expected or required to do the work in person.
Whether he knows anything about the work, or can tell the difference
between a mud turnpike and a Nicholson pavement, or whether a sewer
should be constructed in the shape of a longitudinal section of an egg-shell,
or which end of the section should be uppermost, is of no consequence, for
the contract is not awarded him because of his superior knowledge or skill,
but because liis bid is the lowest and his bond for the performance of the
work in a workmanlike manner and according to the specifications is good.
Moreover, by the terms of the contract, the work is to be performed under
the direction and to the satisfaction of the engineer; it is his skill and genius
therefore which gives form and excellence to the work, and it is there-
1 Bates v. Lumber Co. (Mimi.\ 57 N. W. *Doncrlierty v. Grouff (Neb.), 36 K W.
Rep. 218. 29 Amer. & Eng. Ency. Law Rop. 351, [1888].
978, and cases cited. * CuiTan 'W. Clifford (Colo. App.), 40 Pac.
2 Taylor v. Palmer, 31 Cal. 241. Rep. 477.
=^ Devlin V. Mavor et al., 63 N. Y. 8 « Galey u Mellon (Pa. Sup.), 33 Atl. Rep.
[1875]; and s^e Little v. City of Portland 560.
.(Ore.j, 37 Pac. Rep. 911.
10 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 16.
fore in his genius and skill, if anywhere, that trust and confidence are
reposed. ' *
In New York State everything that could be transmitted to the assignor's
personal representatives is assignable. The test is, whether or not the thing
assigned would pass to the executors and administrators of the assignor at
his death.'
16. What Interest does an Assignee Take. — Where the assignees of a
contract to construct a railroad agree to save the assignor harmless from all
liability by reason of subcontracts previously let by him, a failure to pay
the amounts due on such subcontracts is a breach by the assignees for which
the assignor can recover without first showing payment by himself.'
An assignment of money due and to become due on a building contract
effects an immediate and present transfer to the assignee of a right to
demand and receive the money assigned without notice to the debtor.*
To complete the assignment notice should always be given the debtor to
establish priority o claims of the assignee over those of materialman, other
assignees, and creditors. Until informed of the assignment the debtor may
regard the contractor or assignor as the creditor and may pay him and
accept a release, or settle the claim with him, or purchase a debt which he
owes and use it as set-off.'
When a contractor assigns his contract with a city to build a structure
it seems there is no implied warranty on his part of its validity, and if it
turns out to be invalid and worthless the assignee cannot avoid the payment
of notes he has given in consideration of such assignment, there being no
misrepresentation, concealment, oi» fraud on the part of the contractor.'
The cases are common where contractors have assigned to subcontractors,'^
and the latter may maintain an action on such assignment, but subject to
defenses existing against the assignor or principal contractor. Moneys not
yet earned, but expected to be earned in the future under an existing con-
tract, may be assigned/ as can the lien of a mechanic or materialman," but
the lien must have been perfected first. An assignment of claims lor work
done or materials furnished was held to give no right to the assignee to a
lien.'" The assignment by a subcontractor of his account for work performed
» Emery «. Bradford. 29 Cal. 75; Taylor [18891; hut see Humphreys v. Jones, 5
«. Palmer, 31 Cal. 240 [1886]. Excb. 952.
« 1 Amer. & Eug. Eucy. Law 832. ' Chambers v. Lancaster (Sup.), 38 N. Y.
» Mills V. Allen, 10 Sup. Ct. Rep. 413. Supp. 253; Dirimple «. State Bank (Wis ),
* Board of Education v Duquesnet (N. 65 N. W. Rep. 501.
J. Ch.), 24 All. Rep. 922; Union Pac. R7. ^perkiug ^ Butler Co. (Neb ), 62 N. W.
Co. T. Douglas Co. Bank (Neb.), 60 N. W. Rep. 308; Tracy v. Waters (Mass.), 39 N.
Rep. 886. E. Rep. 190
M Amer. & Eng. Ency. Law 840. ^ Milwaukee Mecbaiiics Ins. Co. v.
For a case where notice was given in Brown (Kans. App.), 44 Pac. Rep. 35.
English to one who could not read English, 'o jgnckes «. Jenckes (Ind. Sup.), 44 N.
see Renton 10. Monnier, 77 Cal. 449. E. Rep. 632.
• Gould i?. Bourgeois, 51 N. J. Law 361
*866 Sees. 132-200, 499-507, infra.
§17.] LAW OF CONTRACTS. 11
as collateral security does not defeat his right to perfect a mechanic's lien
therefor.^
17. Third Parties, Strangers, and Beneficiaries. — Persons not parties to a
contract may subsequently acquire rights under it by assignment and opera-
tion of law, as the right of administrators, receivers, and successors in office,
but, as a general rule, strangers can not sue on a contract. If the contract,
not under seal, be made for the benefit of a third party, it has been repeat-
edly held that the third party can bring an action to recover what he is fairly
entitled to under the contract. Evidence may be introduced to show that a
written contract was made in behalf of parties other than those named, and
to charge such other persons.'' A third person, who is only indirectly or
incidentally benefited by the contract, will not be allowed to sue upon
it. For example, a stipulation in an engineering contract, by which the
contractor is to indemnify the owner for damages, does not give to a party
injured a cause of action against the contractor.^ * A provision in a contract
that a city may retain money until the contractors shall have paid his labor-
ers, does not give the laborers any rights against the city when the contrac-
tor has been paid in full.* f
A provision that the owner shall retain a certain percentage of the con-
tract price till the completion of the work is for the benefit of the owner,
and does not afford a ground of personal liability by the owner to sub-
contractors.^
The third party cannot sue on the contract, unless it is perfectly clear .
that both parties to the contract intended it for his benefit. The mere fact
that the third party might be benefited is insufficient." It has been held,
however, that a bond to a city by contractors, providing that they will pay for
all labor and materials furnished, is a promise for the benefit of all persons
furnishing labor and materials, and such persons may sue on it,' especially
when the city or county i^ required by statute to secure its laborers and
material men by a bond that the contractor will pay them.® If the bond be
to pay for all materials furnished, the contractor is not liable either under
his contract or on the bond to creditors of subcontractors for materials fur-
nished, and the contractor's assignee is no more liable.' It has frequently
' Ittner v. Hughes (Mo. Sup.), 34 S. W. ' Lyman c. Lincoln (Nieb.), 57 KW. Ren.
Rep. 1110. 581; Kauffman v. Cooper (Neb.), 65 N. W.
2 Ropes V. Arnold, 30 K Y. Supp. 997. Rep. 796 ; St. Louis v. Von Puhl (Mo.), 34
3 French v. Vix (N. Y. App.), 37 K E. S. W. Rep.. 843.
Rep. 612. Bd. of Ed. ■». Grant (Mich.), 64 N, W.
*01d Dom. Gran. Co. v. District of Co- Rep. 1050; Gilmorei). Westerman (Wash.),
lumbia, 20 Ct. of Claims 127; Sayre Lnrab. 43 Pac. Rep. 345 ; Wilson v. Webber (Sup.).
Co. V. Union Bank (Colo. App.), 41 Pac. 36 N. Y. Supp. 550; hut see contra.
Rep. 844; Lawrence v. United States (C. Buffalo Cement Co ?j. McNaughton (Sup),
C ), 71 Fed. Rep. 228. 85 N. Y Suop. 45 ; see 17 Amer. & Eng.
'Steele v. McBurney (Iowa). 65 N. W. Ency. Law 527-9.
Tvep. 332; Weller -u. Goble,.66 Iowa 113. 'Brower v. Thompson Lumber Co-
« Wright V. Terry (Fla.), 2 So. Rep. 6 (Oreg.), 43 Pac. Rep. 659.
£1887].
* See Sec. 638, infra. f See Sec. 758, infra.
12 ENGINEEPJNG AND ARCHITECTURAL JURISPRUDENCE. [§ 18.
been held that the right of a third party to a contract to sue upon it does
not extend to the case of a contract under seal. '
For like reasons, a subcontractor is not liable to the owner for negligently
and unskillfully doing his work by which the owner is injured, there being
no contract between them. The owner should bring suit against the prin-
cipal contractor." A subcontractor can not hold a company or proprietor liable
on their contract with the principal contractor ; nor can the theory that the
contractor was an agent of the company be a ground on which to hold
it liable." * A wife is not liable for a contract for sinking a well upon her
property, made by the husband without her authority, as his own enterprise
and in his own interest.* A third party is not liable to a contractor for
work done on the representation, by the owner and employer, that the said
third party would pay for the work, the contractor never having communi-
cated such representation to the third party nor having obtained his assent to
it.' A property owner on a street is not a party to a contract for the improve-
ment of the street made between the contractor and the superintendent of
the streets ; " and where a city has entered into a contract to furnish certain
things to its citizens, the city, and not a citizen, is the proper party to bring^
action against the company for a breach of such contract.'
Where one buys at sheriff's sale the property of a contractor who has failed
and, taking the place of the contractor, under a partly performed building-
contract, completed the work for him, he is entitled only to the amount which
would . have been due the contractor, who had been overpaid for the work
already done by him.*
18. Third Party — Sureties. — When the contractor fails or refuses to com-
plete his contract, it frequently happens that the surety of the contractor
assumes the contract and completes the work, in which case he takes the place
of the contractor, assumes all the burdens, and takes the benefits. He may
be mentioned in the body of the contract as a party, or he may assume the^
work under an assignment from the contractor, or by permission of the owner
of the works.
While not strictly a party to the contract, as contracts are usually
expressed, yet the surety is frequently the responsible party behind the con-
tractor, and the party to whom the company or owner looks for the ultimate
performance and completion of the contract. The contractor is employed for
his skill and competence to do the work, and the surety is regarded as the
backer who will see to it that it is completely performed. It is, therefore,.
'3Amer. &Eng. Ency. Law866. Seethe ^Stidham v Sanford, 36 N. Y. Super.
codes of several states, which allow actions Ct. 341 [1873].
when the common-law practice would not. ® Dyer v. Barstow, 50 Cal. 653 [1875].
«Bissel «. Roden, 34 Mo. 63 [1864]. ^ Cleburne W. I. & L. Co. v. City of
3 BlandiDff v. Davenport (la.), 55 N. W. Cleburne (Tex.), 35 S. W. Rep. 733.
Rep. 81; Epeneter «. Montgomery Co. ^ Marshall v. Brick (Pa. Sup.), 34 AtL
(Iowa). 67 N. W. Rep. 93. Rep. 530.
*Deviiie ®. McMillan, 61 111. App. 571.
* See Sec. 765, infra.
§20.] LAW OF CONTRACTS. . VS
important that the relations of the surety to the parties and the contract be
understood. The suretyship of a party is created usually, not in the contract,
but in a separate instrument, called a bond. Frequently there is no mention
of the surety in the contract, yet upon the execution of the contract may
depend the binding effect of the bond.
19. Third Parties, Sureties are Not Liable to Them. — If the bond guaran-
ty that the contractor shall pay for all labor and materials furnished him
in executing the contract, it seems that laborers and materialmen have cer-
tain rights.^ A contract of guaranty that a contractor should perform hia
contract to erect buildings, and to pay for the materials and labor so that
there should be no liens, does not give a materialman a right to sue the
guarantor." * Sureties on a bond conditioned that the building should b&
turned over to the owner free from all liens for labor and materials, are not
liable for labor and materials furnished to the contractor and subcontractora
on their individual credit.^ f A surety on a bond conditioned that the con-
tractor shall pay all debts incurred by the contractor is not liable to subcon-
tractors for labor and materials furnished.* For a creditor of the contractor
to recover from the surety, it must appear that the creditor knew of the
agreement on the part of the surety to pay, before he performed the work or
furnished the materials.' In other words, he must have trusted the contrac-
tor on account of or by reason of the additional security.
20. Surety Eeleased by Unauthorized Changes in the Contract. — A
surety is one who has assumed certain obligations in relation to a contract
but who is not a party to the contract. He is bound in the manner and to-
the extent provided in the obligation and no further. If he has under-
taken to guaranty the performance of an express contract under certain
circumstances, he cannot be held to fulfill his obligation with respect to a.
different contract or under different circumstances. A variation or altera-
tion made in the contract by the parties thereto without the surety's con-
sent is fatal to his obligation." It is not necessary that he should sustain
injury in consequence of the change; he may stand upon its terms, and if a
change is made without his consent it is fatal to his liability,^ even if tha
change is for the benefit of the surety.*
1 Doll V, Grume (Neb.), 59 N. W. Rep. Watriss v. Pierce, 32 N. H. 550; Gen'l St.
806. Nav. Co. -o. Rolt, 6 C. B. (N. S.) 550.
* Weller v. Goble, 66 Iowa 113-, accord ' Simonson v. Thori (Minn.), 31 N. W.
Stetson V. McDonald, 32 Pac. Rep. 108; Rep. 861 [1887]; Berks Co. v. Ross, 3 Binn.
see also Kelly v. Kellogg, 79 111. 477; Mc- (Pa.) 520 ; 24 Amer. & Eng Ency. Law
Chesnejr v. Syracuse, 22 N. Y. Supp. 507 ; 838 ; 29 Amer. & Eng. Ency. Law 796;,
and Bell v. Paul (Neb.), 52 N. W. Rep. hut see contra, Haone v. Dambach, 4 Pa.
1110. Co. Ct. Rep. 833; Commissioners, etc., v.
2 Stetson v. McDonald, McChesney v. Ross, 3Binney (Pa.)520; Miller «. Stewart,
Syracuse, Bell v. Paul, supra. 4 Wash. C. C. 26 ; per Story in Miller v,
^Swindler v. State (Ind. App.), 44 N. E. Stewart, 9 Wheat. 680 [1824].
Rep. 60. 8 Weir Plow Co. v. Walmslev, 110 Ind.
'Ball ij. Newton, 7 Cush. (Mass.) 599. 242; but see Hamilton v. Woodworth
« St. Albans Bk. v. Dillon, 30 Vt. 122; (Mont.), 42 Pac. Rep. 849.
*
See Sec. 71, infra. \ See Sees. 761-5, infra.
14 ENGINEERING AND ARCBITEGTURAL JURISPRUDENCE. [§ 20.
A departure from the terms of the contract by making payments on
orders of the contractor without reference to the state of the work or the
terms of the contract, or in excess of the installments or percentage due
tinder the contract, is sufficient variation to discharge surety from his
obligation.' The provision that the last of several installments shall be
paid when the structure is completed operates as a security to the owner,
and the surety is entitled to the benefit thereof. If deprived of any part
of such security he is discharged from liability to that extent.' The con-
tractor should not be overpaid nor should his compensation be increased.'
The enforced payment or deduction of claims of creditors against the
•contractor held by the owner as attorney for said creditors is not such a
breach of contract as will release the sureties on the contractor's bond.* It
does not matter, it seems, that the overpayment was made on the fraud-
ulent representations of the contractor that the work was half done, when
the contract provides that the payments shall be estimated by the engineer.
The sureties are discharged.^ If the contract stipulates that payments
shall be made as the work progresses, on the estimates of the architect, pay-
ments must not be made v^ithout such estimates or in excess of them, with-
out the consent of the surety.' The payments maybe made without the
architect's certificates, it seems, if not in excess of what the architect's
estimates would have been.'
If by the contract the architect's estimate is made conclusive and a certain
per cent, of such estimate is reserved until completion, it is as much for the
indemnity of the surety as for the owner. If the surety has executed a
written guaranty for the faithful performance of the contract by the con-
tractor, the surety is bound by the engineer's estimate, and is not released by
the fact that the owner has paid more than the agreed per cent, of the work
done according to the contract price, but not more than the correct per cent,
of the architect's estimate.^
However it has been held that the making and giving to a material-
man of an order by the contractor, and the acceptance of the same by the
owner, for an amount greater than the estimate of amount due to con-
tractor, did not constitute an advance payment which would release the
surety."
^ Simonson «. Grant, 36 Miun. 439 [1887] ; ** Board of Commissioners «. Branham
und f>ee 39 Minn. 498 ; Evans v. Graden (C. C), 57 Fed. Rep. 179.
(Mo.), 28 S. W. Rep. 439; Bell «. *Paul « Bell v. Paul (Neb.), 52 N. W. Rep.
(Neb.). 52 N. W. Rep. 1110 ; General 8. 1110; Kane v. Thuener, 1 Mo. App. 725;
Niiv. Co. V. Ro"t, 6 C. B. (N. S.) 550; Gato ?). Warrington (Fla.), 19 So. Rep. 883,
Gordon «, Rae. 8 El. & Bl. 1065; bvi see receipted weekly pay-rolls and materials de-
Kaulfmau v. Cooper (Neb.), 65 N.W. Rep. livered.
796. T Smith «?. Molleson (N. Y. App.), 42 N.
* Pickard v. Sckantz (Miss.), 12 So. Rep. E Rep 669 ; hut see Brennan v. Clarke, 29
544. Neb. 385.
3 Warden v. Ryan, 37 Mo. App. 466. » Finney v. Condon. 86 111. 78 [1877].
-» DeMaltos v. Jordan (Wash.), 46 Pac. ^ De Mattos «. Jordan (Wash ), 46 Pac.
Rep. 402. Rep. 402.
§ 20.j LAW OF CONTRACTS. 15
When, the obligation of the contractor was to furnish, prepare, and set
granite, and the owner was to make monthly payments of a certain per
"Cent, of the estimated value of the work " performed on the building," pay-
ment for granite prepared as well as granite actually put in the building
was held not to release the contractor's sureties.*
Payment in full to a contractor upon completion of his contract/ or
partial payments when the work has been substantially completed to the
required stages,^ or payment to contractors who have fraudulently concealed
defective work,* will not discharge a surety even though the owner paid the
<;ontractor without retaining enough to cover the claims of lienmen, when
his contract authorized him to do so.^
Many changes made in a construction contract for a consideration and
without the consent of the surety have been held to discharge or release him
from liability — thus an extension of the time for completion/ To obtain
his discharge the surety must plead the extension in his answer and he must
j)rove it at the trial.'' It has been held that an extension of time and over-
payment did not release a surety on a bond providing that the contractor
should pay for all labor and materials furnished him, as to the rights of labor-
■ers and materialmen.® The extension of time of payment must be for a
"definite time, and on a sufficient consideration to discharge the suretv.*
The act of materialmen in allowing a contractor thirty days in which to
pay for materials furnished does not release a surety obligated to pay for all
materials furnished.'"
Failure of the owner to insure property as agreed," or a change in the
person of the architect without the surety's knowledge or consent; " or a
refusal by the owner to have the price of alterations fixed as provided in the
contract, by arbitrators; " or if certain matters are to be determined by arbi-
tration and certain other matters are afterwards included in the submission
without the knowledge or consent of the surety,'* then the surety may be
-discharged.
Sureties are released by a departure from the terms of the contract in
respect to plan and materials, without the knowledge and consent of the
^ Smith V. Molleson (N. Y. App.), 42 N. 165 ; hut see Hanks v. Gerbracbt, 26 N. Y.
E. Rep 669. Snpp. 1097.
2 Duluth V. Heiiey, 43 Minn. 155. » Doll v. Crime (Neb.), 59 N. W. Rep.
3 Stimson Mill Co. v. Riley (Cal.), 42 806 ; Conn v. State, 125 Ind. 514 ; Stelfea
Pac. Re\>. 1072. v. Lemke, 40 Minn. 27.
•» Kingston v. Harding, 2 Q. B. 404 » Houston v Biaden (Tex. Civ. App.), 37
[1892]. S; W. Rep. 467.
6 Casev v. Gun, 29 Mo. App. 49. "> Wilson v. Webber (Sup.), 36 N. Y.
«T()dd V. School Dist., 40 Mich. 294; Supp. 550.
• and see 61 Mich. 426; Hall 'o. Johnston " Watts v. Shuttleworth. 5 H. & N. 235.
•(Tex.). 24 S. W. Rep. 861; Samuell v. ^^ Kane «. Thuener, 1 Mo. App. Rep. 725.
Howarth. 3 Mer. Ch. 27.2; Hill v. Wit- ^^ Truckee Lodge ®. Wood, 14 Nev. 293.
raer, 2 Pbila. (Pa.) 72; Mayhew v. Cricket, " Cooke v. Odd Fellows (Sup.), 1 N. Y.
2 Swanst. Ch. 185. Supp. 498.
' Hayden v. Cook (Neb.), 52 N. W. Rep.
16 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 21
surety.^ An agreement between the owner and contractor to add another
story to a building; ^ to substitute steam heat for stoves and a gravel roof
for a tin roof; ' to increase the cost of plastering by $221, and adding;
to the expense a bulkhead for sewer connections, and changing the arrange^
ments of the closets;* an interlineation in the specifications and addition
of the words, "sliding doors between hall and parlor" and "bath-room,"*
have each been held to release the surety on the contractor's bond.
An agreement, endorsed on a building contract by the owner and con-
tractor, providing for additional work for additional compensation, has been
held not such an alteration of the contract as will release the contractor's
sureties.' A surety for a subcontractor between him and the contractor is
not released by changes made in the specifications and plans by the sub-
contractor under an agreement with the owner and without the knowledge
of the contractor; ^ and alterations without the knowledge or consent of the
owner will not discharge the surety on the bond/ If the contractor simply
consent to certain changes in the minor details of the work but without,
binding himself to conform to such changes and without any agreement as-
to the modification of the original contract, it will not discharge the surety.*
Such agreements to change the terms of a contract, by which the surety will
be discharged, need not, it seems, be in writing nor in any precise form of
words, nor even in express language; they may be inferred from acts,
declarations, circumstances, and facts.*"
If the contract provide that the contractor should make any alterations
or additions required by the owner, the price to be subject to addition or
deduction therefor as might be agreed on, the sureties cannot defend against
liability, because the owner, in completing the building after its abandon-
ment by the contractor, as was authorized by the contract, deviated from
the specifications, nor because changes were made before the abandonment
with the assent of the contractor."
21. Changes which Will Not Release the Surety. — When the contract
provides that the owner, at any time during the progress of the work, shall
have the right to make alterations, changes, or additions to the structure,
and that the same shall not invalidate the contract ; changes and additions
made by him will not release the surety on the contractor's bond.''^ If
1 Erickson v. Brandt (Minn.), 55 N. W. » Consaul v. Sheldon (Neb.), 52 N. W.
Rep. 62. Rep. 1104.
■^ Jiidah V. Zimmerman, 22 Ind. 388. ' H^nricus v Englert. supra.
3 Evans v. Graden (Mo.), 28 S. W. Rep. "^ Brooks®. Wri'dit (Mass.), 13 Allen 72;
439. Mil er v. Stewart, 4 Wash C C. 26.
* Beers v. Strimple (Mo. App.), 23 S. W. '^ De Mattos v. Jordan (Wash.), 46 Pac.
Rep 620. Rep. 402.
** Lancaster v Barrett, 1 Pa. Sup Ct. ^'^ R^jc^en >() Cook. 34 Neb. 670; Moore «.
Rep. 9. Fountain (Miss.), 8 So Rep. 509 [18911;
« Barclay t>. Alsip (Pa. Sup.), 24 Atl. Smitli i). Molleson (N. Y. App.). 42 N".
Rep 1067. E. Rep. 669; McLennan «. Weliiairton.
-> Hinricus v. Euglert (N. Y. App), 83 48 Kan s. 756.
N. E Rep. 550.
§22.] LAW OF CONTRACTS. 17
the owner refuses to have the prices of such changes determined in the
manner provided by the contract, then the sureties will be released.' The
changes must be reasonable, and not materially increase the cost of the
structure beyond the contract price.' A change in the plan of a building
by moving the wall out two inches, and in the specifications by substitut-
ing walnut, cherry, and poplar, instead of pine, in certain parts of the build-
ing, has been held reasonable, and that the sureties were not released by
reason thereof.'* A change from stone window-lintels to railroad iron has
been held not to affect the obligation of the surety,* nor a change of the
fronting of a building when the sureties had never seen the original plans.*
When the contract provides that no new work shall be considered as
extra work unless a separate estimate be submitted by the contractor, and
signed by the engineer and owner, and that only such work shall be paid for
as has been authorized in writing, the owner may waive compliance with the
provision, and the sureties on the contractor's bond have been held not to
be discharged because the provision had been disregarded." A different
view seems to have been taken where the contract provided that the super-
intendent might make alterations without invalidating the contract; that
any difference in the expense should be determined by him, and that in case
of any such alteration the expense must be agreed on in writing, and signed
by said parties and the superintendent before the work was done, and any
allowance made therefor; it was held that the superintendent had no
authority to make alterations without consulting the surety.^ A surety for
the owner has been held to be entitled to the benefit of a provision in the
contract that the final payment shall not be paid until thirty days after the
work is completed, and only on the certificate of the engineer.®
22. Surety Discharged by Other Causes. — A surety may be discharged
from his obligation by the death of the contractor; but where the con-
tractors make a partnership, the dissolution of the partnership does not re- '
lease the surety on a bond to pay for all labor and materials furnished,' nor
does the assignment of one contractor to the other joint contractor without
notice to the surety release him." The fact that the performance of the
contract has become impossible, without any neglect or fault of the con-
tractor, will release the sureties. An instance of the latter case is where
the particular subject-matter is dead, or has been destroyed, and cannot be
rebuilt or replaced, as the delivery of an animal which has died."
»Trnckee Lodi^e «. Wood. 14 Nev. 293. App.), 42 K E. Rep. 669.
sConsaul v. Sheldon (Neb ), 52 N. W. 'Beers v. Strimple (Mo.), 22 S. W. Rep
Rep. 1104. 620.
3 McLennan «. Wellington (Kan.), 30 "Beharrell i?. Quimby (Mass.), 39 N. E.
Pac. Rep 18B R?p 407.
"Howard Co. «. Baker (Mo.), 924 S. W. 'Kaiiffmnn v. Cooper (Nel).), 65 N. W.
Rep. 200 Rep. 796.
^Dorsev v MoGee. 80 Neb. 657. 'o Abbo't v. Morrissetfe, 46 Minn. 10.
«Consanl v. Sheldon (Neb ), 52 N. W. "Steele v. Buck. 61 Ills. 343 ri871].
1104; semble. Smith v. Molleson (N. Y.
18 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 2g.
PERS0I!^S AS PARTIES. — WHO MAY CONTRACT.
23. Disabilities to which Persons are Subject. — The rights of parties to
enter into and enjoy the rights of a contract are modified by the special
condition or status of the parties. Natural persons may be affected by
various private conditions: such as infancy, marriage, and conditions affect-
ing the mind, or by their political and social status; while the powers of
artificial persons, known as corporations, are defined and limited by the law
of their creation. The extent of the latter must be sought in the act of
sovereign power, by which they exist. The incapacities created by the pri-
vate conditions of persons are subjects of greater practical importance than
those of .the political and social standing of the parties.^
They are based upon the fundamental principle that a contract cannot
be created unless there is mutual consent of the parties and an intelligent
understanding of its terms. Any mental infirmity of either or both parties
that precludes the possibility of a just apprehension of the terms of the
agreement, or of an intelligent assent to them, destroys one of the essential
elements of a contract.'
24. Infants. — Persons under twenty-one, and, in some states, women
under eighteen years of age, commonly_ known as infants, are regarded by
the law as lacking in judgment and understanding sufficient to enable them
to guard their own interests, and the law protects them against their own
improvidence, or the designs of others, by allowing them to avoid acts, con-
tracts, or conveyances to which they are parties, and that are not manifestly
i;o their interests. Before that age the law presumes their faculties to be
immature and incompetent, and seeks to guard against the artifice and cun-
ning of the world. This protection is afforded by allowing them certain
privileges of avoiding their acts and agreements, or by declaring them void-
able and not binding. The privileges are entirely personal, and the infant
alone can take advantage of them. If the other party to the contract be
an adult, the reason which permits the infant to escape its force does not
apply to the adult, and he is bound thereby, despite the want of reciprocal
responsibility on the" infant's part. The adult is bound by the agreement,
though the infant may avoid it. This may not seem strict justice, but it is
founded upon the theory that the adult has entered into the contract with
all the experience and knowledge requisite to avoid fraud and imposition,
which it is presumed the infant has not. For the same reason a third per-
son not a party to the contract cannot take advantage of the infancy of one
of the parties to avoid it unless it be void from the beginning.
An infant's contract is not necessarily void and without binding force;
some contracts are voidable at the option and discretion of the infant, and
» Leake's Digest of Contracts, p. 537. ^g^oiy on Contracts, chap. 2.
§ 25.] LAW OF CONTRACTS. 19
others are binding. If the agreement be positively injurious ' to him, and
can only operate to his prejudice, it is absolutely void, for it is self-evident
that unfair advantage and influence has been exercised over him. Such is
a bond executed by him as a surety.
Contracts that are for his benefit may be affirmed or avoided by him
when he arrives at age, when he is presumed to have arrived at years of dis-
cretion. Executory contracts of an infant are generally voidable, and he
may refuse to perform during infancy, or disaffirm them when he becomes
of age, and leave the other party without remedy. But if a contract is com-
pletely executed, and it is beneficial to the infant, and was entered into in
good faith, the infant cannot rescind it unless he can restore what he has
received and put the other party in the same position that he occupied be-
fore the contract. An infant, is also liable for the fair value of necessaries
supplied to him, not on his express contract, but on a contract implied by
law, which gives a reasonable price to those who furnish necessaries, "since
an infant must live, as well as a man.^'''
Though an infant may not contract for himself, he may act as agent for
another, and his acts are as binding upon the principal us an adult^s.' He
cannot appoint an attorney, nor sue or be sued, except by next friend or
guardian, and in general has no legal capacity to act for himself.'' An in-
fant is liable for injuries to property or persons wrongfully committed by
him. As is often said, " his' privilege of infancy is given to him as a shield,
and not as a sword.'"' He is not, however, liable for the evil consequences
of a breach of contract.^
25. Imbeciles, Inebriates, and Lunatics.— For the same general reasons
a contract made by an idiot, a lunatic, or drunkard may be avoided in the
same ways as those recited for infants, if it can be proved that the party is
incapable of reasoning and judging of what is for his benefit. Much
that has been said of the infant may be repeated for them. Their con-
trasts are voidable only and may be ratified upon their returning to reason.
If a person has agreed to sign a contract when sober, the fact that he was
intoxicated at the time he did sign it will not excuse him from liability.*
And the contract of an habitual drunkard is good if made in a sober inter-
val.^
" Mere weakness of mind is no ground for incapacity, and does not afford
' A later doctrine exists that all contracts * Robbins v. Mount, 33 How. Pr. 24 [1 867].
of an infant aie voidable which relieves the ^ 10 Amer. & Eng. Ency. Law 674-8
court of the responsibility of deciding 'Page v. Kreky (Sup.), 17 N Y. Supp.
what is necessarily, injurious to the in- 764 [1892].
faut. 10 Amer. & Eng. Ency. Law 628 ' Ritters' Appeal 9P F. Sm. 9: Canlkins
€t seq V. Fry, 35 Conn. 170; Evans v. Horan, 52
2 Story on Contracts 103-130. As to what M. D. 602: Wait v. Maxwell, 5 Pick. 217;
are and what are not necessaries is some- Elston v. Jasper, 45 Texa<« 409; Brecken-
times a nice question, not perfectly well ridge v. Ormsby, 1 J. J. Marsh. 236. For •
settled. more about the insane, or idiots, see Pollock
•1 Amer. & Eng. Ency. Law 334. on Contracts, p. 419, and notes.
50 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE [§ 25.
sufficient ground for setting aside a contract, but it may support an infer-
ence of fraud and unfair practice when the contract is entirely to the disad-
vantage of the weaker party. A contract obtained by fraud will be void in
any case, whatever be the comparative intelligence of the parties, but a
court of equity will set aside a contract where it is evident that advantage
has been taken of a weak-minded person, when it would not give relief to
the same contract between parties of sound understanding." As in the case
of an infant, if the mind of one party had become impaired by age, the con-
tract ic none the less operative against the other party if the latter be in full
possession of his faculties.'
The ground of relief in all these cases is based upon two principles:
First, that of mutuality — a capacity to comprehend the agreement into
which they have entered, and an understanding of the terms of the agree-
ment; secondly, that no fraud be practised or unlawful advantage be taken
of either party. This protection is given to all parties, infants or adults,
sane or insane, intelligent or idiotic, sober or drunk, and, in the language of
a prominent English jurist, " it is unaccountable that a man shall not be
able to excuse himself by the visitation of heaven, when he may plead
duress from men to avoid his own acts.'* Justice will not permit the strong
to take advantage of the weak. It is sufficient to invalidate any contract if
it clearly appear that the party contracting did not at the time understand
what he was about.
Intoxication may afford relief from a contract only when the party is so
drunk that he cannot exercise his judgment. It must be so excessive and
absolute as to suspend the reason. "The merriment of the cheerful cup,
which rather revives the spirits than stupefies the reason, is no hindrance to
the contracting of just obligations." If the lunatic contract during a lucid
period, or the idiot when his reason is restored, or a drunkard when he
knows what he is about, the contract may be established, and will be sus-
tained.^
Many fine questions arise upon this subject upon which volumes have
been written — questions as to what constitutes a ratification or new
promise of an infant at his maturity, what are necessaries, what degree of
weak-mindedness, or insanity, or intoxication will afford relief, etc., but
they are too cumbersome to treat at length in this work.*
Generally speaking, each and all are liable for necessaries furnished in
good faith, and on executed contracts. To escape liability they must restore
to the other party what they have received on the contract. If a contract
shows on its face good judgment on the part of the imbecile as a shrewd
' Harmon v. Harmon (Cir. Ct.), 51 Fed. & Eng. Ency. Law (subjects). Pollock on
Rep. 113. Contracts, Leake's Digest of Law of Con-
2 5 e Sands ^. Potter (111. Sup.), 46 N. E. tracts, and other standard works on the
' Bep. 282. subject.
'^ See Story on Contracts, Part 3; Amer.
§26.] LAW OF CONTRACTS. 21
bargain, and it is to his benefit, the rule ought not to apply. Parties who
have been adjudged insane or idiotic by a court and a guardian has been
appointed, are wholly incapacitated from contracting, and contracts entered
into by them are void.' To enforce a contract with a person habitually
insane there must be proof that the same person was sane and capable of
contracting at the time of the transaction.'
26. Married Women. — At common law a married woman could not con-
tract, sue, or be sued in her own name. To prevent domestic discord and
create a legal unity, the will of the husband was made paramount. Man
And wife were regarded as one person in their legal status, and whatever a
married woman did her husband should join in it. The common law
still prevails in some parts of the United States, but in most states it is
modified by statutes, which are so different in the several states that it is
thought inadvisable to attempt to discuss them. Suffice it to say that a mar-
ried woman should not be made a party to a contract, without the statutes
of the state expressly grant the power to contract, independent of her hus-
band, and then the requirements of the statute should be carefully studied and
explicitly followed. Much trouble and loss have been experienced by con-
tractors by neglecting to inquire into the marital relations of parties and
the law governing them, peculiar to the jurisdiction. Contracts have
been made and structures erected for which no recovery could be had,
because the contract was void or the structure has been erected upon land
owned by the wife when the husband has assumed the obligation to pay.
For like reasons it has been held that a woman cannot contract with her
husband, and such contracts have generally been held not bindiug. In the
absence of a statute giving such authority, the legal incapacity to contract
remains as at common law. At common law a contract or promissory note
between husband and wife was absolutely void.' And the same has been
held in New York state, where no statute had been passed as late as 1889.
But, although contracts between husband and wife are invalid in a court of
law, courts of equity may give effect to agreements and transactions between
them so far as they are just and fair and equitable and ought to be enforced.
The agreement should not be voluntary, but should be for some considera-
tion." The difficulty doubtless has been that such contracts could not be
enforced, as the courts would entertain no action on them. The law has
been modified in many states.
A woman may employ her husband to act as her agent to transact any and
ail of her business, and it has been held that she might contract with him
to do all her work ; that she could contract with him for the construction
of a building or any part of it for a stipulated price and by the job. If he
^employed subcontractors to perform the work he had undertaken, it was
* 11 Amer. & Eng. Ency. Law 134. and cases died.
•Ricketts v. Jolliff, 62 Miss. 440 [1884]. "Hendricks v. Isaacs, 117 N. Y. 411
* Knell V. Egleston, 140 Mass. 202 [1885J, [1889].
22 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 27.
intimated that the subcontractor must look to the husband for his pay^
even though he supposed the husband to be the owner of the property ; but
that for work the subcontractor had done with the wife's knowledge that
was not a part of the husband's contract work, she must pay him for as if it
were in fact her work/ A contract between a husband and wife who had parted
has been held not void.' In most states a woman has the legal right to bind
herself by a contract, and she and her own property will be liable for debts so-
incurred. S^lie may contract for the erection of buildings upon her prop-
erty.' A married woman may contract as an agent of her husband or aa
agent of third parties. She may contract for necessaries and bind her hus-^
band to pay therefor, but it is on his behalf and she asGULies no responsi-
bility herself.
27. Other Conditions Aflfecting a Person's Capacity to Contract.— Dis-
abilities and forfeitures incurred on account of political and social con-
ditions of parties are nearly obsolete in this country. Outlawry is almost
wholly unknown. Attainder is prohibited by our constitution, and in times
of peace a contract made and obligations assumed by an alien or foreigner
will be enforced by our courts. If war be declared by or against the country
of which he is a citizen he becomes an alien enemy ; his legal right to sue
upon the contract is suspended until peace is declared. A contract entered
into during war between an alien and citizen is utterly void, for the law
declares such contracts illegal, because if permitted, an enemy would
thereby be enabled to disturb a nation's finances and wage war on the inter-
nal business and credit of a country, to the destruction of its resources.
The law of nations prohibits every kind of trading, commercial dealing, or
contract between citizens of two countries at war which tends to increase
the resources of the enemy or weaken the power of home government.
Seamen are special wards of the law. The general recklessness, thought-
lessness, and ignorance of this class of men is considered and specific favor is
shown them. The law of the United States protects them from recovery of
any debt greater than one dollar incurred during a voyage, and a sailor need
only produce his shipping papers to be dismissed from court. Contracts
of seamen for services constitute the bulk of this class of cases, and as they
are remote to engineering, the profession is referred to books specially treat-
ing the subject.
In some jurisdictions bankrupts receive the special protection of the law..
Since the solvency of a person or corporation is one of the most necessary
things to inquire into, it can hardly be thought that any one will undertake
to enter into an agreement with a bankrupt without first ascertaining his
resources or requiring a bond as security.
The infirmities of a contract arising from the parties not being sui juris:
» Fan-banks v. Mothersell, 60 Barb. 406 2D„ryea v. Bliven, 122 N. Y. 567.
fl871]. » Greeuleaf v. Beebe, 80 111. 520 [1875]..
[§ 29.] LAW OF CONTRACTS. 23
and capable of contracting are not cured by an assignment of his interest
by one of the parties thereto.*
28. Either Party Under Duress. — Neither party to a contract should
have been under duress of person or goods,'' nor under great excitement, or
fear, or compulsion when the contract was made.' Mere angry or profane
words, or strong or earnest language will not constitute such duress as will
relieve a party from his contract. Duress by threats which will avoid a
contract only exists where such threats excite or may reasonably excite a
fear of some grievous wrong, as bodily injury or unlawful imprisonment.*
To make a payment compulsory such pressure must be brought to bear
upon the person paying as to interfere in some way with the free enjoyment
of his rights of person or property.* The imprisonment, threatened or
feared, must have operated on the mind so far as to deprive the contract of
the character of a voluntary dct." So it has been held that a contract was
not signed under duress when a contractor who had commenced work
under a parol contract for grading one mile of roadbed was required to sign
a contract for one-half a mile only, and on his refusal to sign the contract the
owner said to contractor's men : " I will stand good for no more work
you do for contractor." Contractor being unable to- continue the work
unless the owner paid the men, he signed the contract.'' A wife may avoid
her contract extorted by a threatened criminal prosecution of her husband
on the ground of duress. The fact that the husband has destroyed the
forged papers incriminating him, which papers had been surrendered when
the wife gave her note, does not prevent the wife from avoiding her note
extorted under threats of prosecuting her husband.® Threats of lawful-
arrest of a person justly amenable to criminal prosecution without circum-
stances of oppression or fraud do not constitute duress or menace, for which
a deed executed under pressure of such threat can be cancelled."
29. Agency — Parties Acting by or through their Agents.^ i
" by and between (name of owner or corporation.) .,...,,
acting by and through President, Treasurer, Engineer,
Attorney, Agent, by virtue of the power vested in him by power of
attorney of the day of 18
a copy of which is hereto annexed ; " or " acting by and through the
. . *. Commission-ers Board of Public
Works, by virtue of the power vested in them by chapter .of
the Laws of 18 of the State of and the amendments
' McCorkle v. Goldsmith, 1 Mo. App. All. Rep. 8.
Rep. 172. 4 Adams v. Stringer, 78 Ind. 175 [1881].
' 6 Amer. & Bng. Ency. Law. pp. 57. 93, ^ Stover v. Mitchell, 45 111. 213 [1867].
93 ; Miller v. Miller, 68 Pa. St. 486 [1871] ; ^Berrett v. Weber, 125 N". Y. 18 [1890].
Adams v. Scheffer (Col.), 17 Pac Rep. 21 ; '' McCormick v. Dalton (Kan.), 35 Pac.
Jordan v. Elliott (Pa.), 15 Cent. L. J. 232 Rep. 1113.
[1882]. 'Oity Bank v. Kusworm (Wis.), 59
3 6 Amer. & Eug. Eney. Law 57-59 ; N. W. Rep. 564.
McCarthy©. Hampton Bldg. Assn., 61 Iowa ^ Gregor v. Hyde (C. C. A.), 62 Fed. Rep.
287; Lomerson v. Johnson (N. J.), 13 107.
24 ENGINEERING AND ARCHITEGTUuAL JURISPRUDENCE. \% 30.
thereto " " or a Board authorized by virtue of an act of
stockholders of said company, to construct a "
These are clauses that should never be omitted where the contract is
executed by parties other than those on whose behalf it is made. It is a
clause that will protect the engineer, agent, or board, and will afford the
contractor information by which he can learn the duties, powers and
resources with which the parties propose to act. This is imperative with
the contractor, for if the contract is executed by an engineer, officer, or
board who has not the requisite authority, the contract is void, and the
contractor finds he has done work unauthorized by the principal and for
which he may not recover.
30. Principal should be Made the Party — If Agent Assumes the
Obligation He will be Liable. — The principal or proprietor should be made
the party to the contract, and his [its] name be signed at the end. If
the contract is executed by or through an engineer, officer, or agent, the
intention must be perfectly plain. The proper form for such a contract is
the one given above, although other forms may be binding and the engineer
or agent escape liability. Thus in an agreement in the form "Memoranda
of agreement between 0. [the contractor] and E. [the engineer] on the part
of A [the company], the said E. hereby agrees signed E," E. was
held liable.^ In another case, the contract read : " On behalf of B. we
hereby consent money to be paid to A. and E. ; E. to supervise
certain work. [Signed, A. and E.]" A. and E. were held liable because A.
and E. were to receive payment." This case has been criticised by good
authority, but it nevertheless stands on record.
In a contract of sale where E. as agent for A. agrees [signed] E.,
E. was held personally liable on the contract." The tendency seems to be
to get away from these precedents, and to interpret the contract, according
to the intention of the parties,* but they are established decisions and may
be followed.^
A mere description in the body of an instrument of a person as agent,
without words or necessary implications showing that he signs as agent only,
wii] not exempt him from liability on the contract. So it was held that a
contract for the sale of wheat in the following form: " Sold C. 200 quarters
wheat [as agents for, etc.], and signed E./' made E. liable upon the contract.*
An engineer or agent who uses his own name instead of that of his
principal (company) when he intends' to bind the latter, renders himself
liable. The word " engineer or agent " appended to his name is universally
» Norton v. Herron. Ryan & Moodv 329. ' Haskell t). Cornish, 13 Cal. 47; Qui?-
« Tanner v. Christian, 4 E. & B 590. lev «• De Hass, 82 Pa. St. 2fi7 ; see also
3 Paine V. Walker, L. R 5 Exch. 173; Hiitoliison v. Eaton, 13 Q B. D. 861.
Stone® Wood, 7 Cowen 453. * Paice v. Walker, L R. 5 E\cb. 178
'•Decrinff v. Thorn (Minn.), 13 Rep. [^870]; nnd see Fairlee v. Fenton, L. R. 5
757. . Exch. 169.
§ 31.J LAW OF CONTRACTS. 25
held a mere description of the person. It is held to afford no relief from
personal liability, but amounts to no more than if he affixed the abbrevia-
tions of his collegiate degrees, as C.E., M.E,, or B. Arch/
If, on a note, the name of the corporation be signed followed by the
name of an individual with '*Prest." after it, tliough without the word
*' per " between the names, it is the promisory note of the corporation and
not a joint note.' If the president had signed his own name and written
" Prest. " after the signature, it would not have relieved him from personal
liability." If he does not disclose the name of his company he is personally
liable, and parol evidence is not admissible to show that a written instru-
ment was made on behalf of another unless there be something on the face
of the instrument to indicate it.*
31. Proof of Agency. — Some proof it seems may be offered that it was
the intention of the agent to bind his company and not himself."^ Evidence
may be given that it was known to the one party that the other party was
an agent, and evidence may be admitted on the other hand to show that in
this particular case he was acting as a principal, having agreed to pay for
the work done out of his own money.*
A distinction has been made between contracts with public agents and
officers who act on behalf of their governments and those made by agents
of a private corporation or a person. If a public officer fails to bind his
government and no action can be had against it, yet the officer is not per-
sonally liable, the public faith being the only security. In the case of a
private corporation, the law requires the agent to see that his employer or
principal is legally bound by his act, or it holds him personally responsible.*
Agency cannot be proved by the declaration of one assuming to act in that
capacity nor by declarations of one claiming to act as agent.* The
extent of his authority cannot be shown by proving his declarations
though accompanied by acts, unless such declarations or acts were brought
home to the principal." Evidence that there was a general understanding
> Hough V. Manzaiios, 4 Exch. Div. 104; 8 N. E Rep. 586. note, and also Mid Co.
Sayer v. Nichols, 5 Cal. 487; see Hill v. Bk. v. Hirsli Bros., 4 N. Y Supp. 385
Miller, 76 N. Y. 33 [1879] ; Haskell v. [1889].
Cornish. 13 Cal. 47 [1859] Sharp v. Smith, . s Deerinjr v. Thorn (Minn.) 13 Rep. 757
32 111. App. 336, ''Directors'' Paige v. [1882]: and see also 13 Minn. 106. 187; 14
Walker, L. R. 5 Exch. 173 [1870]; Fullara Minn. 214
®. West Brookfield, 9 Allen (Mass.) 1, « Hewesu. Andrews (Colo.), 20 Pac Rep.
/* Committee'' , Sparry v. Farminir, 80 111. 338 [1889].
'371 [1875], "Trustee"', Pershing v. In- 'Randall v. Van Vechten, 19 Johns.
du>trial Co. (Minn), 59 N W. R- p. 1084; (N. Y.) 60
see 29 Amer. & Eng, Ency. Law 863, ^ Brady d. Nagle (Tex. Civ. App.). 29 S.
i^ote. W. 943; Burke v. Frye (Neb ). 62 N. W.
* Reeve v. Bank (N. J.), 23 Alt. Rep. Rep. 476; Fullerton « McLaughlin (Sup),
S53. 24 N. Y. Supp. 280 ; Dowden v. Cryder
^ Heffner ■» Brownell. 31 N. W. Rep. (N. .1), 26 Atl. Rep. 941.
947 [1887]. 9 Richardson Co. v. School Dist. (Neb.),
* See collection of cases and references in 64 N. W. Rep. 218.
26 ENGn\EERING AND AliCHITECTURAL JURISPRUDENCE. [§ 32.
among business men that an agency existed has, been held admissible/ and
the agency may be proven by letters and telegrams from the principal.''
32. Names of Parties in Body of Contract should Correspond with
Signatures. — The names of the parties in the introduction should corre-
spond strictly with the signatures and seals at the end of the contract, for
a variance may be fatal to the contract.' A contract made in the name of
a railroad corporation for grading its roadbed was signed by its engineer,
who used his own private seal, subscribing to his signature and seal " Cliief
Engineer of T., etc., R. Co., and as such its authorized agent to make this
agreement." And the court held it was not the corporation's sealed con-
tract; but as the engineer had authority to make a simple contract, that the
seal should be disregarded and the contract held a simple contract.* This
has not been the universal interpretation of such contracts, and unless it can
be shown that a simple contract was entered into preliminary to the sealed
instrument, it is submitted that the contract would fail. It is difficult to
impose upon the parties a contract which they never contemplated or in-
tended, but if they have undertaken to merge an existing simple contract
into a specialty and have failed, then the simple contract remains and the
written document is evidence of the terms of that contract. It is very un-
safe to draw contracts in such a form; the party who covenants should be
the party to sign and seal. If the covenantor does not sign and seal, then
he is not liable because it is not his seal;' and the party who has signed
and sealed is not liable, for it is not his covenant. It is important to dis-
tinguish between simple contracts and contracts under seal in determining
whether the engineer [agent] or principal is liable. In simple contracts the
intention of the parties should prevail ; in contracts under seal the question
is, who signed and sealed the specialty and who made the covenant. There-
fore a deed made in the name of a corporation authorized by law to have a
common seal, signed by the president and secretary of the corporation, but
without authority from the board of trustees and not sealed with the
corporation seal, was held void." It seems that a public officer does not bind
himself to pay the debt of his principal when, in a sealed instrument, he
imposes the obligation upon himself.'
*
' Gregory. Hu :son (Tex ). 30 S.W. Rep. «. Garnish, 13 Cal. 47 [1889] : Dickerman
489. V. Ashton. 21 Minn 588 [187o]
2 Farrell 'd. Edwards (S. D.), 66 N. W. ^ ,9^^ Whitford ®. Laidler, 9i N Y. 145 :
Rep. 813 Appleton v. Binks, 5 East 148: Townseiid
As to the prop r manner for corpora- v Hubbard, 4 Hill, 351 ; McCaul y v.
tion officers to sign and indorse negotiable Jennv. 5 Houston (Del.) 132.
instruments and 'he liabilities created ^ Mott v. Danville Seminary (111), 21
thereby, see 39 N. W. Rep. 640, note, and N. E Rep. 927 [18891
8 N. Y. Supp. 771. note. ' Kniirht ®. Clark (N J.), 2 Atl Rep 780
3 Mott V. Danville Seminary (111.), 21 [188=>] ; Huthsing v. Bausquet, 12 The Re-
N. E Rep. 927. porter 225; hut see Wing v Glick, 46 Iowa
4 Saxton v. T«^xas, S. F. & N. R. Co. 473 [1881].
(N. M.), 16 Pac. Rep. 851 [1888] ; Haskell
* See Sees. 789 and 855, infra.
§,35.] LAW OF CONTRACTS. 27
33. Agents should be Duly Authorized to Contract. — " by or through
, President, Treasurer, Engineer, or other officer or agent."
Every person who enters into a contract with officers or agents of a public
corporation is bound at his peril to ascertain the extent of their authority/
He must know the extent of their power conferred by the act of incorpora-
tion, and notice all public limitations on their authority. Rules and regu-
lations of a private corporation made and signed by the officers cannot,
however, affect contracts made by third parties with their agents without
notice of such rules.''
34. Unauthorized Acts of Agent may be Ratified or Adopted. — A private
corporation, like an individual, may ratify the acts of its officers or agents
done in excess of authority, if it could have authorized the act itself.' It is
submitted that if a contract with a private corporation or individual were
declared void for want of authority in the agent to contract, that the con-
tractor could recover on an implied contract to pay for the benefit it had
received, but not upon the contract under which the work was begun.
35. No Claims or Obligations are Created by Contract of Public Officer or
Agent who Acts without Authority. — Contracts hj public officers, or officers
and agents of public corporations, must be strictly within the authority dele-
gated by the act of incorporations." Contracts made in excess of such power
conferred by the sovereign power will not bind the corporation, nor is there
any guaranty on the part of the corporation that the forms of law have
been complied with because its officers, without authority, attempt to con-
tract.^ Those dealing with cities and other public corporations must see to
it that its agents have power to act, for no liability is incurred for work done
under a void contract.* They must ascertain at their peril that officers are
acting within the scope of their lawful powers. They must ascertain and
take notice of the extent and power of a building committee to bind the
city.' Likewise a party who undertakes work under an order of a court
must see to it that the order as entered by the clerk in the records is in
accordance with the terms of his agreement, or run the chances of not recov-
1 Davis V. The City, 3 Phila. 374 [1859]; * Wallace v. Mayor of San Jose, 29 Cal.
1 Dillon Munic. Corp. (Ed 1873). § 37-3; 181.
Baltimore «. Reynolds. 20 Md. 1; Hnmev. ^Daly v. San Francisco, 13 Pac. Rep.
United States 132 U. S. Rep. 406; Wells -321; Hume v. United States, 132 U. S.
^' Mich. Mnt. L. Ins. Co (W.Va.\ 23 S. Rep. 406. and f^ee Dhrew ?). Altoona, 121
E. Rep. 527; Pearce v. Mridison & J. R. Pa. St. 411; McDonald v. Mayor, 68 N.
Co., 21 How. (U S.) 441; Smith «. Co-op- Y. 27; Smith v. City of Newbnrg, 77 N.
erative D As=;'n. 12 Dalv (K Y.) 304; Lit- Y. 136: Davis «.Citv, 3 Phila. 374; Miller,
tie V. Kerr (N. .T.), 14 Atl. Rep. 613. v. Goodwin. 70 111. 659; Bateman v. Mayor,
2 Walker v. Wilrainsjton, C. & N R. Co. 3 H. & N. 323.
(N. Car.), 1 S E. Rep. 366; Griffins v. « Cheeney v. Brookfield, 60 Mo 53, 17
Land Co., 3 Phila. 447 (1859); Blandinsj Amer. & Eug. Ency. Law 157, 15 Amer.
•» Davenport, etc., N. R. Co. (la.). 55 K & Eng. Ency. Law 507-509; Keatiug v.
W. Ren. 81; R. R. &B'king Co. v. Skellie, Kansas City, 84 Mo. 415; Boston E. L. Co.
16 S. E. Rep. 657. v. Cambridge (Mass.), 39 N. E. Rep. 787;
34 Amer. & Eng. Ency. of Law 247, and Osgood v. Boston (Mass.), 43 N. E. Rept
tates cited. 108.
28 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§36.
ering for his work. This was a contract to survey, subdivide, map, and
classify school lands by a person who had no personal fitness to perform the
work, which the commissioners of the court knew. Though it was under-
stood that the person was to employ substitutes to perform the work, it was
held that an order entered in the records which fails to mention the fact
that the contractor was to employ substitutes, could not be corrected.^ Con-
tracts made by a receiver of a railroad company for materials and supplies
in excess of the needs of the road cannot be enforced against the receiver.
It was held, however, that the contractor was entitled to be reimbursed for
expenses incurred in good faith under such contracts.'
36. Public Agents Not Liable for Blunders. — A contractor cannot be
too cautious and careful in taking public work. Commissioners and boards
of public works, city engineers, supervisors, and other ofiicers are likely to
mistake the extent of their powers, and to contract for, and order things,
for which the contractor can never recover. The innocence and honesty
with which the officer oversteps the limit of his authority seem to afford no
excuse to the contractor's neglect to ascertain the extent of his powers.*
The corporation is not liable, and if the officer has exercised his honest judg-
ment, and is guilty of no negligence or abuse^,* he is not liable for innocent
blunders or mistakes.' *
37. Agent's Authority must Come from His Principal. — Contractors will
ask "With whom can I safely contract ? " The answer to this must depend
upon the circumstances and conditions of each case. If the contractee be an
incorporated company it will be well to have access to its charter, in which
its powers and purposes will be set forth, and a copy of its by-laws will shed
some light upon the powers of the persons exercising authority. If a stock
company there will be a board of directors, who, in a strict legal sense, are
agents and representatives of the corporation and trustees of the stock-
holders, but in a practical sense the board of directors become, so far as the
company's relations to the public are concerned, the corporation itself.*
Whatever authority officers, agents, and employees have they must derive
from the board of directors or governing power, unless they are conferred
by the charter of the corporation or the legislative act creating the body
politic. The authority to contract must be given either expressly, impliedly,
or by ratification.' Contracts which a corporation may legitimately make,
the manner of the making of which is not directed otherwise, may be made by
its board of directors without the consent or ratification of stockholders i
1 Gano V Palo Pinto Co. (Tex.), 8 S. W. phrey «. Jones, 71 Mo. 62; Dillon's Miin.
634 [1888]. Corp., vol. 2 (8d ed.), i^§ 588, 978 and
•^Little v. Vanderbilt (N. J.), 26 Atl. 979
Rep. 1025. 6 Board of Com'rs v. L. M. & B. R.
^1 Dill. Mun. Corp., § 372. ' Co.. 7 Arnev. Corp. Cas. 26.
< States. Karn, 81 N J. Law 259. 'The L. E & St. L Uy. Co. v. McVay,
•Hall V. Craudall, 29 Cal. 567; Hum- 96 Ind. Rep. 391 [1884]
*5£« ai«<? Sees. 826-859, "Engineers' Personal Liability."
§38] LAW OF CONTRACTS. 29
and iu the absence of fraud or collusion on the part of the directors, they
are binding on the corporation/ If the contractee be a municipal corporation,
then the governing body is a board, council, or mayor elected by the people,
whose powers and duties are defined in the charter, subject to such restric-
tions and modifications as the legislature may have made since the city's
incorporation. The powers of the general government and its officers must
be ascertained in the same manner from the constitution, the laws enacted,
and the rules and customs of departments.
38. Authority cannot be Inferred from Business or Family Relations. —
From the simple fact that a person is an officer of a corporation one cannot
infer authority to contract on its behalf.'' The president of a company has
no power by virtue of his office simply to enter into a contract on behalf of
his company as for the construction of its works." Nor can the president
and secretary of the company together." The assents of a director, the com-
pany's land committee, its civil engineer and a stockholder altogether do not
establish the president's authority or make the contract valid.* It has been
held that an engineer charged with the duty of engrossing the contract and
procuring the signature of the contractors, for which no particular- time was
fixed and no limitation was imposed upon his power, may consent to a delay
of a month in the execution of a written contract, and the company cannot
repudiate the contract on account of such delay, even if unreasonable.'
If it appeared that the president was the officer with whom alone all
the negotiations were had which resulted in the execution of both contracts;
that he was its managing and controlling man; that he was present as its
manager at the time of the arbitration, when the mistake in, the latter
contract was discovered, and that attention being called to it, he acknowl-
edged it, and consented to the change, so that the truth might be set
forth, it was held that such officer had power to bind his company by
consenting to a change/ If the president and secretary have executed
and sealed a contract in the name of a corporation, though not with the
express consent of the directors, it is binding on a corporation which has
received the benefits of the contract, and has conducted its business in
compliance therewith and in such a manner that the directors must have
had knowledge of it.* If the president or the executive officer of a corpora-
tion cannot, by virtue of his position, contract on behalf of the company, it
iBeverid^e v. N. Y. El. R. Co, 112 *Mott «?. Danville Seminary (111.), 31 N.
N. Y. 1 [1889]. E. Rep. 927 [1889].
^Bisley ^ J. B. & W. Ry. Co., 1 Hun ^ Stanley ?j. Sheffield & Co. (Ala.), 4 So.
202 [1874]; Ry. E. & P. Co. v. Bank (Sup.), Rep. 34 [1888].
31 N. Y. Supp. 44. 6 Pratt d. Hudson R. R. Co., 21 N. Y.
3 Templine v. Chicago, B. & P. R. Co. 305.
(la.), 35 N. W.Rep 634 [18871; Griffith i?. 'Nichols «. Scranton Steel Co. (K Y.
C, B. &P. R. Co. (la.), 36 N.W. Rep. 901 App), 33 N. E. Rep 561; semhle Loeb
[1888]; Bi-Spool 8. M. Co. v. Acme Mfg. Fdy. Co. v. Stout, 61 111. App. 166.
Co. (Ma?s ), 26 N. E. Rep. 991 [1891]; hut « Jourdau v. Long Island R. Co., 115
see Loeb Fdy.Co. v. Stout. 61 111. App. 166, New York 380 [1889].
and State v. Heckart, 62 Mo. App. 427.
30 ENGINEERING AND ABGHITECTURAL JURI8PRUDENGE. [§39.
would not be expected that any of the subordinate officers would have such
powers. Such acts maybe ratified by the board of directors, or such powers
may be presumed and established by proof of previous adoption of similar
acts.
If a contractor enters into a contract with an agent he should have
proof of that agent's authority or he does so at his peril/ * In general, an
agent may do such business only as is ordinarily within the scope of his
business, but the making of contracts does not in general belong to anybody
but the parties themselves, unless express authority is shown, and then only to
the extent of the authority conferred.' So it has been held that presidents
(see ante)y general managers, secretaries, attorneys,' engineers,* and officials
in general^ cannot contract. °
The mere proof of family relationship does not establish agency between
the parties. A son has no authority to act for his parents merely because of
the relation existing between them. To establish agency other evidence is
required.'' The same is true of husband and wife, father and son, or brother
and brother.
No power exists, either in the commissioner of public works or in the
mayor, or in both acting together, to enter into a contract on behalf of the
city for the erection of water-pumping machinery, without previous
authority of the city council, or an appropriation therefor.' Authority to
borrow money for a public work is not authority to undertake the work."
39. Boards, Committees, and Councils in Their Representative Capacity..—
A very common and most unfortunate circumstance for contractors is to
work under a committee or board whose members attempt to act individ-
ually. Members of boards or committees visit the works, give directions,
order changes, and authorize new works which only the body or board as a
whole have authority to direct. If a contractor obeys such individual instruc-
tions he runs the risk of losing the price of the work, for such work ordered by
individual members of a committee, board, or council are unauthorized, and
generally no recovery can be had against the corporation or its officialg.f
Good business men would not undertake such methods, but circumstances
» Cases, 29 Araer. & Eng. Ency. Law, J.). 44 N. J. 263 [1888]; hut see Ry. E.
861 note 2. & P. Co. v. Bank, 31 N. Y. Supp. 44; Lo-
' Stnto D. Miohigan City (Ind.). 37 N. E. oust Mt. W. Co. v. Yorgey (Pa.), 18 All.
Rep. 1041; Chicago Gen '1 Ry. Co. v. Chi- Rep. 956 [1888], by an engineer; Dwen-
cngo City Ry. Co., 62 111. App 502. ger id. C. & G. T. Ry. Co., 98 lud. 153
3 Chicago Gen'l Ry. Co. v. Chicago City [1884]; The L., E. & St. L. Ry. v. Mc-
Rv. Co suprri. Vay. 98 Ind. 391 [1884], general manager.
•« Jackson V The N. W. R. Co., 1 Hall& ^ Walsh v. Curley (Com. PI.), 16 N. Y.
Twecle Rep. 75 [1848], Ennineer. Ashiie- Supp. 871; Gibson v. Hardware Co. (Ala ),
lot Mfg. Co. v. Marsh, 1 Cush. (Mass.) 10 So. Rep. 304.
507: Lyndon M. Co v. Lyndon Lit. Inst., ^city of Chicago «. Eraser, 60 111. App.
63Vt. 581. 404.
*Dobson V. More, 62 111. App. 435. »Goddard v. Harpswell, 88 Me. 228; but
^ See 4 Araer. & Eng. Ency. Law 359; see Damon v. Granby, 2 Pick. (Mass.) 345.
13 S. W. Rep. 1188; Little «. Kerr (N.
* See Sec. 35, supra. t ^^^ Sees 29-39, supra.
^40. J LAW OF CONTRACTS. 31
arise which make such acts very common. Such orders or instructions may
he adopted, ratified, and authorized by the body when they become binding,
and recovery for work done under them may be had/ A committee appointed
by a town to take charge of the erection of a building are agents of the town,
«nd can act by agreement of the members separately obtained, and need not
be in session as an organized body.' So when a contractor furnished a differ-
ent stone in the place of stone called for in the contract it was held that testi-
mony of one of the committee appointed to take charge of the building was
competent to show that a majority of the committee had agreed to the
change, and that the architect, a member of the committee, had so stated to
the contractor in presence of the witn-ess.' * A board of public works may
•exceed its power and its acts or contracts be ultra vires and void. For that
reason a request by such a board that the contractor suspend work on a street
pending an injunction suit by an abutting owner will not make the city
liable for delay, ^f ^^^^ object and authority of a board of improvement or
commissioners being limited to construction and the paying for sewers, the
commissioners after completion of the sewers cannot bind the district or
themselves as a board by a contract for water for flushing.*
40. Public Officers are Presumed to Do Their Duty. — In the absence of
proof to the contrary there is a presumption that the public officers do their
duty/ This may be an advantage to the contractor if the legality of his
claims be contested on account of any dereliction of duty or excess of power
on the part of the officers." Where the record shows the letting of a con-
tract for building a bridge in a city at a price greatly exceeding ten thou-
sand dollars, but does not show whether a tax was imposed or bonds issued
in excess of that sum in any one year, it will be presumed that the council
did its duty in that respect. The council having acted upon plaintiff's
account for the ivliole of the work embraced in said contract, and having
ordered it to be paid, except as to a single item of work which the parties
agreed to defer, it will be presumed, in the absence of anything in the record
upon the subject-matter, that said account was verified in the manner
required by the charter. In the absence of proof showing that work was not
completed according to contract it will be well presumed that the city engi-
neer in reporting a final estimate and the completion of the work, and the
city council in approving the report and ordering the payments, did their
duty.' The one who attempts to show irregularities must prove that the
' Albany Ciy Natl. Bk. -p. Albany, 93 N. ^ Valley Tp. -?). Kinjr Iron Bdffe. Co.
Y. 363 [1883]. (Kan. App. .. 45 Pac. Rep. 660.
« Shea V. Town of Milford (Mass.), 14 « Howard c, Oshkosb, 33 Wis. 309 [18731.
K E. Rep. 764 [1888]. "'BohMll v. Neiwall (la.). 39 N. W. R' p.
"Matlhewsou v. Grand Rapids (Mich.), 217 [1888]; also Jenkins v. Stetler (Tnd.), 2
50 N. W. Rep. 651. K E. Rep. 7 [1889]; N. Chicago St. R.
* Pine Bluff Water & Light Co. v. Sewer Co. u. Cheetham, 58 111. App. 318.
-District No. 1 (Ark.), 19 S. W. Rep. 576.
* See Sees. 48 and 555-557, irv^ra. \ See Sees. 326 and 689, infra.
32 ENGINEERING AND ARCHITECT URAL JURISPRUDENCE. [§ 41.
public officers did not do their duty.* Contracts of public corporations, mad©
through their officers without authority of law, are void, atid the corporatioii
may successfully interpose the plea of idtra vires, setting up as a defense its-
own want of power, under its charter or constituent statute, to enter into the^
contract.' Where one has contracted with an alleged corporation, and is-
sued for failure to perform the contract, he cannot be heard to say that the
corporation had no existence, and for that reason no contract was made."
41. Means of Obtaining Information. — Cautious contractors will ascer-
tain the powers of individuals, boards, and committees in as quiet a.
manner as possible. The self-esteem of some officials, and the indignant
spirit in which they resent any doubts expressed as to their authority
to undertake and carry out projects, are enough to convince a shrewd man
of the impropriety of seeking information directly from office-holders^
Usually the documents of incorporation are public property, and access,
may be had to them at the government offices. The commercial stand-
ing of a corporation may be had at the commercial agencies, and a well
informed local attorney may be employed to give a reasonably safe opinion
as to the legality of the act, or the liability of the company, or the extent of
the duties and powers of its officers. A successful contractor will not sacri-
fice any honest means to obtain and keep the favor of officials of large cor-
porations, nor will he stupidly demand information of them which may
offend when he can indirectly and discreetly inform himself through other
channels, whether outside or inside. To secure such information is the
legitimate business of attorneys and counselors at law, and they need not
divulge the name of their client nor in whose interest they are at work. An
engineer should appreciate that the contractors require such information,
and he should provide copies of the act or charter under which the work is
undertaken, so that bidders and contractors may make such inquiries as seem
pertinent to their interests and acquire information of the work to be done
Complicated questions come up, and many a contractor has performed
work only to find when too late that his labor has been for nothing. An
instance of the authority of a public officer is given in the following case :
Where the legislature or congress directed a public officer, the secretary of
the navy, to contract for the construction of public works according to a
plan submitted previously and on file, and the officer directed changes in
the plan and contract, it was held that the act of congress directing the
officer to enter into the contract was not the contract itself, but that the
officer who made the contract might vary the details, and that the rule
regarding the effect to be given a contract with the United States was the-
same as in a contract between man and man.*
^ Hcllman v. Shoulters (Cal.), 44 Pac. ' Fresno Canal & Irrigation Co. v. War-
Rep. 915. ner (Cal.), 14 Pac. Rep. 37.
« Miller v. Goodwin. 70 111. 659 [1873] ; * Gilbert v. United States, 1 Ct. of Claims
accord Ryan v. Lynch, 68 111. 160; Byrne 28 [1863] ; Lord v. Thomas, 64 N. Y. 107.
t>. E. Carroll (La.), 12 So. R p. 521.
§42.1 LAW OF CONTRACTS. 33
42. An Agent or Fiduciary Can have No Interest in the Contract.— A
director, public officer, trustee, executor, receiver, engineer, ov other agent
or fiduciary can have no personal interest in the contract of the company,
city, principal, or cestui which he represents. A director cannot become a
contractor with his company, nor become a member of a company with whom
the board of directors has made a contract for the erection of works, nor share
in the profits of such a contract. If such contracts are made they will be
held to have been made for the benefit of the company which the director
represents, and a court of equity may compel him to account for the profits
realized under such an agreement.' Such a contract may be ratified by the
stockholders and they may insist upon the advantages, or they may disaffiim
it entirely. A president of a corporation who takes an assignment of a
contract for the construction of its works acts as a trustee and for the
benefit of the corporation, and not as an assignee of the contractor." A
contract made by a city council in which one of its members is interested
may be avoided by the city, and if the contract has not been performed any
taxpayer may restrain its enforcement.^ It does not matter that the mem-
bers who are- interested in the contract voted against awarding the contract
to themselves or their company.* The mayor should not act as attorney or
solicitor for the city of which he is an officer when the city's charter forbids
any interest, directly or indirectly, in any contract, office, or appointment.*
The city cannot accept a conveyance of real estate subject to a mortgage
held by the city solicitor when the statutes prohibit any public officer from
becoming interested in any contract for the purchase of property by the
state, county, or municipal corporation. " An allowance to a public officer
by a contractor or employee out of the profits of a contract with the city or
government, however small it may be, is such evidence of fraud as will
invalidate the contract.' * A contract by a freight agent to allow a contractor
a low freight rate in consideration of a share of the profits of his contract/
' Porti). Russel, 86 Ind. 60: Covington, ^West «. Berry (Ga.), 25 S. E. Rep. 508;
etc.. R. Co 1). Bowler, 9 Bush 468; Euro- hut see Spearman v. Texarkana (Ark.), 24
pean Rv. Co. v. Poor, 59 Me. 377; Paine v. S. W. Rep. 883, wh^re a member of a board
L. E. & L. R. Co., 1 Am. Corp. Cas. 386,. of health was allowed to recover on a
31 Ind. 283 [1869]; Guild v. Parker, 48 N. . quantum meruit for services as a physician.
J. Law 480; G. C. & S. R. Co. -o. Kelly, It seems the father, brother, or wife of a
77 111 426 [1875]. mayor may have an interest in a contract
" Rislfy V. 1. B. &W. Ry. Co., 1 Hun with the city. Devlin v. New York (Com.
202 [1874]; and see 19 Am. & Eng. Ency. PI.), 23 N. Y. Supp.
Law 878, 874. ^ Marsh v. Hartwell, 2 Ohio N. P. 889
3MfElhinney 'o. City of S. (Neb.), 49 N. 'Lindseyv The City, 2Phila. 212 [1858]-
W. Rep. 705 [1891]; Gas Co. «. West, 28 Robinson v. Patterson (Mich.), 39 N. W.
Neb. 852, followed Rep. 21 [1888].
^Kennet Elec. Lt. Co. «. Kennet Sq., 4 ^Barclay v. Williams, 26 111. App. 213
Pa. Dist. Rep. 707 ; Foster v. Cape May [1887].
(N. J.). 36 Atl. Rep. 1089 [1897].
* For cases where engineer was interested see Sees. 512-518, infra ; as to executors^
administrators, etc., see ante Sees. 7-16.
34 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§43.
or an agreement by a bookkeeper to disclose the financial condition of hi^
employer's business/ * are against public policy and not enforceable.
A principal who furnishes his agent money for investment is entitled to
follow not only the property bought, but its proceeds, if sold, so long as
they can be traced and identified."
Injunction will lie to restrain a school board from executing a contract
with one of its own members to furnish supplies after the board has passed
a resolution to purchase from said member; and it is not necessary to wait
until the contract is executed.^ Injunction will lie to restrain a public
officer from entering into a contract with himself individually to furnish
supplies to a public institution.^
ARTIFICIAL PARTIES. CORPORATE BODIES.
43. Charter and Statute Limitations. — Contracts of corporations are
limited to the powers given by their charters. The act creating the body
politic, the articles of incorporation, and the charter given by the state
should therefore be consulted and carefully studied. A corporation is a
creature of the law. It has no powers except those expressly granted or that
are necessary to the exercise and enjoyment of those expressly granted.*
The acts and undertakings must not exceed the powers and privileges
granted by the charter, for such acts will be ultra vires and without effect.
It is not vested with all the capacities of a natural person or of an ordinary
partnership, but with such only as its charter confers. If it exceeds its
charter powers not only may the government take away its charter, but
those who have subscribed to its stock may avoid any contract made by the
corporation in clear excess of its powers.^ A corporation is confined in its
operations to projects expressly enumerated in its charter or that are strictly
necessary to their performance.
A contract ultra vires the charter of a corporation is void. It cannot
be made valid by any subsequent act of the corporation;" that which it
cannot make or do it cannot ratify.' The state or sovereign power alone
can ratify a contract entered into by a public corporation which is
ultra vires, and make it valid and binding." The value of work done for
a municipal corporation not pursuant to the charter cannot be recov-
ered.'
' Davenport v. Hiilne, 32 N. Y. Supp. Corp. Cas. 549.
808 «Saii1t Ste. Marc v. Van Deusan, 40
•-' H ii-ding V. Field (Sup.), 37 N. Y. Supp. Mich. 429.
3*J9. ' Board of Commissiouers v. The L. M.
'^ Alexander « Johnson (Ind. Sup.), 41 & B. K. Co., 7 Amer. Corp Cas. 26.
N E Rep. 811. « Brown v. Mayor, 63 N. Y. 239
. "Board of Tipp Co. v. Railroad Co , 7 'Wallace v. Mayor of 8. J., 29 Cal. 181;
Am; r. Corp. Cas. 26; Davis v. 0:d Colony see also Zottman v. San Francisco and 20
R. Co., 7 Amer. Corp. Cas. 549. Cal. 497, 20 Cal. 96, and 1 Dill. Mun.
5 Davis V. Old Colony R. Co., 7 Amer. Corp , § 372 [1873 ed.].
* ^ « Sec 85, infra.
§43.] LAW OF OONTHAGTS. 85
The contractor, therefore, should not only satisfy himself that the officers
or agents acting are the proper persons to enter into the contract on behalf
of the corporation, but he must also take notice of the lawful limits of the
company's capacity, that the contract is within the scope of the authority
conferred by the act o± its incorporation, and that the powers granted to it
have not been surpassed.' He is bound ac his peril to take notice of the
lawful limits of its capacity,"* especially where all acts of incorporation are,
or are deemed to be, public acts; for every corporation organized under
general law is required to file in the office of the secretary of state a certifi-
cate showing the purpose for which the corporation is constituted/
Some cases of interest to engineers will illustrate the import of this law.
A water company in England had been duly incorporated for the supply of
a certain district with water from certain sources within the district, and ta
do all other acts necessary to supply water to the inhabitants according to
the true intent of the act. In consequence of the increase in population,
the supply within the district became insufficient both in quantity and
quality. The water company employed a consulting engineer to make
surveys and plans, and to report on the feasibility of obtaining a sufficient
supply from a certain stream of water beyond the company's district, the
same plans and report to be used by the company in its application to par-
liament for powers to enlarge its works and to embrace this stream of water
in its district. When the engineer brought suit for the value of his services
the water company resisted payment on the ground that the act of employing
the engineer for the work done was beyond its powers. It was held by
the majority of the court that the contract made for the plans and report
essential to its application to parliament were not necessarily illegal nor the
contract void, but a strong dissenting opinion was delivered by the minority
of the court. The case is given to show how strictly the courts may define
the powers of corporations. Probably the disposition of the courts can
best be shown by giving the last few lines of the learned justice's dissent-
ing opinion: "And when I consider the mischief that has been done bj
directors, under the temptations offered by interested parties and other con-
siderations, adding to the schemes in which parties have contributed their
capital, I own, hard as it may be in a particular case, I am sorry that a lesson
should not be read that those who deal with directors must see that they
have authority to bind their companies, or must trust the directors person-
ally, a consideration which will make both parties more cautious in their
speculations with other people's property." *
Likewise it has been held that a railroad company has no power to employ
1 Evans on Agency, pp. 26, 211.312; CI. 147; and seeYV^Age of Ken* v. Cut
Davi8 V. Old Colony R. Co., 7 Amer. Corp. Glass Co., 10 Ohio Cir. Ct. R'p. 629.
Cas, 549; Liltler t). Jayne, 124111. 123. ^ Davis v. Old Colony R Co., 7 Amer.
2 Keating v. Kansas City. 84 Mo. 415; Corp. Cas 549.
Turney v. Bridgeport, 55 Conn. 412; Tren- ■♦Batemau v. Mayor, etc., 3 H. & N. 323.
ton Loco. Wks. v. United States, 12 Ct. of
i?6 ENQINEEBINQ AND ARCHITECT UBAL JURISPRUDENCE. [§ 44.
a mining-eDgineer to examine and make a report on mines of which the road
is the outlet, and that the railroad company is not liable to him for his
services, even though its business is benefited as a direct result thereof.' It
would, without doubt, have been otherwise if the railroad company's charter
permitted it to operate mines or engage in mining.
Another case arose under a contract by a corporation organized for the
the purpose of "purchasing, taking, holding, possessing, selling, improving,
«;nd leasing real estate and buildings, manufacture, lease, sale, use of build-
ing-stone, lumber, and other building materials," by which the company
agreed to pay for services in organizing stock companies to locate and en-
gage in business upon its land. The contract was declared ultra vires and
void. If the contract had been performed, and the corporation had received
the benefit, it would have been estopped from availing itself of such a defense.'
A contract by a railroad company to aid in the construction of the road
of another corporation in another state is illegal, though it also provides for
the construction of a branch to its own road.''
A subscription for stock, in a company which employs and uses certain
articles, by a corporation chartered to manufacture and deal in the same
sirticles has. been held beyond its powers.* The construction of a levee has
been held without the corporate powers of a village,^ as has the reconstruc-
tion and repair of a building which had been partly removed for the exten-
sion of a street."
44. Other Restrictions to Which Corporate Bodies are Subject — Cost Must
1)6 Within the Appropriation or Limit of Indebtedness. — The contractor must
s,scertain if there be a charter or constitutional limit to the city's or com-
pany's indebtedness, for when that limit is reached it cannot create a new
debt/ The contract should not create a debt in excess of the fund appro-
priated for the purposes of the contract,® for the amount that it exceeds the
sippropriation cannot be recovered.' The contract is void as to the amount
ihat the indebtedness incurred by the contract exceeds the limit fixed by law.*'
1 Georo: V. Nevada Cent. R. Co. (Nev.), Rep. 384; Perkinsoii v. St. Louis, Mo. 4
v?8 Pmc. Rep. 441 ; and see Lewis «. Colgan App. 322 [1877]; State v. Atlantic Cily
<Ca1.). 44 Pac. Ren 1081. (N. J.), 9 Atl. Rep 759 [1887].
'^SchniT -». N Y. &B Sub. Invest. Co. ^Tnvmeyv. Bridgeport (Conn.), 12 Atl.
<Com. PI.). 18 N. Y. Supp. 454; 16 K Y. Rep. 520; Dhrew v. Altoona (Pa.). 15 Atl.
Supp. 210. affirmed. Rep. 636
sRostwiok 7). Chapman. 60 Conn. 551; « Atlantic Ci'y W. W Co. v. Reed (N.
<ir>d S"e Cnnnindiam fs. Massena Sp. R. J.), 15 Atl. Rep. 10; Culburtsou v. Fulton
€o. (Sup ), 63 Hun (N. Y.) 439, 18 N. Y. (111.), 18 N. E. Rep 781.
Sunp 600. '" Culburtson v. Fulton (111.). 18 N. E
^Kiiowies «. Sandereock (Cal.), 40 Pac. Rep. 781 ; Turmey ». Bridgeport (Conn.),
Rep 1047. 12 Ail. Rep. 520; Kingsley ® Brooklyn, 78
* Newport 7)' Batesville & B Ry. Co. N. Y. 200 [1879] ; Boston EI ec. Lt. Co. v.
<Ark.). 24 S. W. Rep. 427. Cambridge (Mass.), 39 N. E. Rep. 787;
«Sceery 7^ Springfield, 112 Mas. 512 Lamar Water Company u. City of Lamar
ri8731; s^e Prairie Lodge «. Smith, 58 Miss. (Mo.), 26 S. W. Rep. 1025; Georgrtovvii
SOI W Co. « Central T. H. Co. (Ky.), 34 S.
■' App. of City of Erie, 91 Pa St. 398 W. Rep. 435.
£1879]; Soule v. Seattle (Wash.), 33 Pac.
§45.] LAW OF CONTRACTS. St
When a city charter provides that all contracts shall be countersigned by the
<;omptroller, mayor, and clerk, and that the comptroller shall have made an
indorsement thereon showing sufficient funds are in the city treasury, or
that provision has been made to pay the liability that may arise under such
-contract, it iS essential to the validity of the contract that it have such sig-
natures and indorsement.* The execution of a contract by a municipal cor-
poration gives rise to no implied warranty that it has power to make assess-
ments with which to pay for work and materials under the contract, and
when a statute authorizing the assessment was adjudged unconstitutional
the contractor was unable to collect what was due him.^ The city will not,
however, be relieved from liability for negligently delaying to raise funds by
assessment when it has contracted to pay the contractor out of such a fund."
It seems that a contract for the performance of work or the furnishing
of supplies need not be referred to the city treasurer for his certificate that
there is sufficient unappropriated money in its treasury to meet its require-
ments.* The contractor is supposed to know the powers of the officers with
whom he is dealing, and the courts hold that there is no excuse for his not
knowing the limit of indebtedness fixed by the charter or legislative act, and
the amount of the appropriation. Such ignorance will not avail in an action
for the contract price.*
45. Appropriation Must Not be Exceeded. — The same law holds when the
amount of an appropriation for a specific job is limited; the cost of the work,
mcluding ext?'as, must not exceed the amount of the appropriation. If it
<ioes, the city or town is not liable for the excess over and above the appropria-
tion." * So when money was appropriated by a town to build and furnish
a town hall, and a contract was awarded for the erection of a hall at a cost
€qual to the full amount of the appropriation, it was held that the commit-
tee exceeded its authority, and that the contractor could not recover a part
of the appropriation set aside to furnish the hall, nor for the extra work he
had done; and this decision was made in the face of the fact that a number
of the citizens had agreed to guarantee the furnishing of the hall if the com-
mittee would expend for the building the entire sum appropriated. '^ A con-
tract for twenty years, or for an indefinite period, cannot be sustained as a
'City of Superio- v. Morton. 63 Fed. Rep. 59 N W. Rep. 513 : Crnmpton v. Varna R.
857; Holmes v. Avondale, 11 Ohio Cir. Ct. Co., L. R. 7 Oh. 568; Keatin<r «. Kansas
R 430 Oity, 84 Mo 415 ; Perkinson v. St. Louis,
2 Barber Asphalt Paving Oo. «. Harris- 4 Mo. App 322 [1877]; Turmey u. Bridge-
burg, 62 Fed. Rep. 565: sfe also Oonnelly port (Oonn.), 12 Atl. Rep. 520.
V. San Francisco (Oal.), 33 Pac. Rep. 1109. eTurmev v. Bridgeport (Oonn.>, 12 Atl.
=* Little V. Portland (Ore?.), 37 Pao. Rep. Rep. 520 [1888] ; Nelson v. Mayor, 63 N.
911 ; and see Soule v. Seattle (Wash.), 33 Y. 535 [1876]; see also Galveston v. Devlia
Pac. Rep. 384. (Tex.), 19 S. W. Rep. 395; Kingsley ©.
* Lamar Water Co. v. Lamar (Mo.), 26 S. Brooklyn, 78 N. Y. 200 [1879].
W. Rep. 1025. ■" Town of Westminster v. Willard (Vt.),
'Gutta Percha Co. v. Ogalalla (Neb.), 26 Atl. Rep. 953.
*8ee Sec. 44, supra.
38 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 46.
contract for ten years, but is entirely void when the city is authorized to con*
tract for a period not exceeding ten years. ^
If the public records fully disclose all the facts of the case, and the con-
tractor was in no way misled or deceived by the records of the town boards
then the town is not liable on the contract or for the reasonable value of the-
structure when public officers without the requisite power do contract on
behalf of the town, even though the structure is accepted after its comple-
tion and used by the public generally.' Acceptance of the work will not
affect a ratification of the contract,' nor will any subsequent act on the part
of the town or city prevent it from denying the validity of such contract.*
If the contract price is within the amount of the appropriation it is valid>
even though it reserves authority to make such changes of detail as may be-
necessary, and though it authorizes the engineer to determine the price of
extra work required.' A charter that authorizes a certain annual expendi-
ture, over and above certain repairs, for the building of new bridges, in whole
or in part, does not prevent the letting of a single contract for a bridge whose
total cost shall exceed the annual appropriation.^ The fact that there is no
money on hand with which to pay for the work does not render the contract
invalid where a road and bridge tax has been levied for the current year>
though not collected.' If the law requires that provision shall be made for
payments under such contracts the necessary funds must be provided before-
hand.* The indebtedness of a city cannot be increased beyond the limit,
fixed, l)y contracting for an electric-light plant to be leased by it; such hvl
executory contract is forbidden.'
46. The Legislature or Congress May Ratify the Contract. — If the power
to contract has been derived from the legislature a contract for a sum that
exceeds the sum appropriated may be recognized, sanctioned, and made valid
by a subsequent act of the legislature, and the contractor may then maintain
his action upon the contract against the city " The contract can be ratified
only by making an appropriation expressly for its performance." The act
of the voters of a town subsequently voting an additional sum for the com-
pletion of a structure will not ratify an invalid contract."
A contract invalid for want of legislative authority may be made valid by
^Manhattan T Co. «. Daytou (C. C. A.>, 556; ani see Cincinnati ■». Cincinnati, 11
69 Fed. Rep. 327. ' Oliio Cir. Ct. Rep. 309.
•^ Salt Creek v. Bridge Co. (Kan.), 33 « Kubls v. Laredo (Tex.), 27 S. W. Rep.
Pao R p. 303. 791.
3 Newport tj. Batesville & B. Ry. Co. » Siilman iJ. Parkersburg (W.Va.). 14 S.
(Ark.), 24 S. VV. Rep. 427. E. Ren 279.
4 State etc., v. Murphy (Mo.). 31 S. W. i" Nelson v. Mayor, 63 K Y. 535 [18761;.
Rep 784. sfif. also New Orleans v. New Orleans W. W.
''Kingsley v. Brooklyn, 78 N. Y. 200 Co . 12 Sup. Ct. Rep. 142
[18791. ^1 Gutta Perclia Co. v. Oiralalla (Neb.).
• Howards. Oshkosh. 33 Wis 309 [1873]. 59 N. W. Rep, 513 ; Shipman v State, 42:
' Sullivan tJ Commissioners, 114 111. '^62; Wis. 377.
Smilie v. Fresno Co. (CeiI.), 44 Pac. Rep. '"^ Kingr v. Mahaska Co. (Iowa), 39 N. W..
Rep. 636 [1888].
§4*7.] LAW OF CONTRACTS. 39'
a subsequent act of the legislature/ but such unauthorized contract ir not'
ratified by a special act authorizing the contractor to sue for the value
of extras/ It has been held that the legislature could require county com-
missioners to provide funds to pay for the erection of public buildings' if
in good conscience the county or city ought to pay, although there was no
legal liability.* A city cannot, it seems, be compelled to stand the whole
cost of county buildings/ Money raised by taxation for the special purpose
of erecting a school-building cannot be diverted by an act of the legislature
to the purchase of a site for a normal school in said city, without the assent of
the city or its inhabitants/ For the legislature to require a claim to be paid
there must l)e an obligation either moral or equitable/ The constitution of
the United States and of the states denies the legislature the power to pass
laws impairing the obligation of contracts, and this limitation applies as well
to contracts made by the state as to those made by individuals/
An injunction will not lie against a builder to prevent him from proceed-
ing with the work ; the owner's remedy is to refuse to ratify or confirm the
contract and defend against an action for the contract price/
47. Cases Where Appropriation has been Exceeded. — In determining
whether the limit has been exceeded numerous decisions have been made
that shed some light on the question. It has been held that certificates
issued by a city against lots in payment for the construction of sewers, the
same being payable in seven annual installments with interest, do not create
an indebtedness within the meaning of an act limiting the indebtedness to
5 per cent of the value of its taxable property." Charges that have been
improperly made against the fnnd should be rejec^^ed and deducted to
ascertain the maximum balance available," If a special tax for paying rent
for waterworks, together with the general tax, exceeds the constitutional
limit, the contract is void.^'^ Indebtedness beyond the constitutional limit at
the time of the injury is no defense to an action against a city for damages
on account of an injury caused by negligence in the construction and
maintenance of its streets.'* The issue of bonds is an indebtedness.'*
The disbursement of the fund should be watched by the contractor, that
iBall V. Presidio Co. (Tex.), 27 S. W. - 'Joint School Dist. v. Reid (Wi3.),51 N.
Rep. 702 W. Rep. 1089.
'^Nichols V. State (Tex.), 32 S. W. Rep. i" Davis v. Des Moines (la.), 32 K W.
452. Rep. 470 [1887]; Grant v. Davenport, 86
3 Commissioners v. People, 5 Neb. 127 ;' Iowa 395 ; Clinton v. Walliker (Iowa), 68
Giilford V. Supervisors Chenango Co., 13 N. W. Rep. 431 ; but see Soule v. Seattle
N. Y. 143. (Wash.). 33 Pac. Rep. 384.
^ThoraastJ.Leland, 24Wend. (KY.)65, "^Kiugsley v. Brooklyn, 78 N. Y. 200
and cases cited in 15 Amer. & Eng. Ency. [1879].
Law 992. '^ Lamar Water Co. v. Lamar (Mo.), 26
. scallam v. Saginaw, 50 Mich. 7. S. W. Rep. 1025.
« State??. Treasurer; 22 Wis. 660 [1868]. ^^Bartle v. Des Moines, 38 Iowa 414
' 15 Amer. & Eng. Ency. Law 993. [1874].
8 Donalds v. New York State, 89 K Y. ^* Scott v. Davenport (la.), 34 la. 208.
86 [1882].
40 bngusi}jii.uing and architectural jurisprudence. [§ 48.
the fund be not exhausted and his labor be without remuneration ; ^ and
wnen tne contract price is the full amount of the appropriation he should
ascertain by what fund any extra work ordered is to be paid before perform-
ing it.'^ Changes and alterations imposing a greater liability are void, and
pay therefor cannot be collected.'
48. Unincorporated Organizations as Parties. — Such are associations,
societies, clubs, and congregations who get together and agree to undertake
or promote certain plans and schemes for their own or the public benefit.
Usually the powers and resources of such organized bodies are indetermi-
nate, and even when the necessary funds are subscribed it is a question as to
how many of the subscriptions can be collected. Contractors and engineers
who undertake work for such associations, and who are not well protected by
liens, bonds, or paid-up subscriptions, or are not well acquainted with the
subscribers, will in making their estimates allow for losses and the possible
failure to carry out the project. When an unincorporated association enters
into a contract, the individual members are liable either upon the ground
that they held themselves out as agents of a principal or because they are
themselves principals. Persons \fho engage in an enterprise are liable for
the debts they contract, and all who assent to the undertaking or who sub-
sequently ratify it are included in such liability.* If a committee has been
appointed to make arrangements they become individually liable for work
done and which was procured by a subcommittee of their number, although
in making the contract the subcommittee assumed to act as officers of the
association.* If a joint signer of a contract who represents the other
signers in superintending the work makes changes in the terms of a contract
he is personally liable, even though the contractor had full knowledge that
the change was unauthorized and unknown to the other signers.* If the
contractor, architect, or engineer be one of the promoters and is himself a
member of the association and has to bring suit for his services it may puz-
zle him as to whom he shall sue. If the relations of the subscribers par-
take of the nature of a partnership, then they are liable both joint and
severally.^ In dealing with incorporated religious associations special cau-
tion should be exercised, for in several states they cannot be sued." *
49. Subscribers to a Project. — It has been held that an associfition of
subscribers to a project to obtain a bill through the legislature to build a
railroad was a partnership, and that the engineer, who was one of the sub-
' Tiirmey v. Town of Bridgeport (Co n.), * Lewis v. Tilton, 64 Iowa"220 [1884].
12 Atl. Rep. 520. « Fredenhall «. Taylor, 23 Wis. 538 ;
*Turraey^. Town of Bridgeport (Conn.), Landiskowski v. Lark (Mich.), 66 N. W.
12 Atl. R'^p. 520 ; Richardson v. Grant Co., Rep. 371.
27 Fed. Rep. 495. « Gutherless v. Ripley (Iowa), 67 N. W
« King I). Mahaska Co. (Iowa), 39 N. W. Rep. 109.
Rep. 636 [1888] ; hut see Shea v. Town of ' Davis v. Shafer, 50 Fed. Rep. 764
Milford (Mass.), 14 N. E. Rep. 764 [1888]. « 29 Amer. & Eng. Eucy. Law 864.
* See Sees 555-7, infra.
§49.] LAW OF COJS TRACTS. 41
scribers, could not sue one of his associates in the scheme, a copartner, for
the value of his services. He should have sued the firm.^ It might make
some difference whether the subscriptions were for stock or merely a dona-
tion. The mere act of subscribing to a project does not ordinarily create a
partnership unless it is the manifest intention of the parties.^ The signers
of a subscription paper in the ordinary form are liable severally, and not
jointly.^ Each subscriber is liable for the amount of his subscription, and
in no way responsible for the payment of the sums subscribed by others.*
Under a contract between several farmers and a construction company
to build a factory, which contained the provision that "we, the subscribers,
agree to pay " the agreed amount for the factory, and a provision that the
subscribers should form a corporation, with stock in proportion to their paid-
up interest, each subscriber to be liable only for the amount subscribed by
him, it was held that the contract was Several, and not joint, and that each
was liable only for his proportion.^ When subscribers have signed at dif-
ferent times and places, and without knowing what subscriptions will be sub-
sequently made, or by whom, the contract does not bind each subscriber to
pay the entire sum.' If the amount of subscription is set opposite each
subscriber's name, the liability of each is as effectually limited as if such
amounts had been (in words) limited in the body of the contract.' A sub-
scriber cannot escape payment of his subscription by an averment that he
notified plaintiffs that he had canceled his subscription before they had ex-
pended money or performed labor under the contract, there being no aver-
ment that the cancellation was made before plaintiffs accepted the contract.'
If a contractor would recover a balance due and unpaid for the erection
of a structure he cannot sue atl the subscribers jointly, but should proceed
against those subscribers who are in default, or at least his declaration
should allege certain subscribers in default.* The question might be asked.
How is he to know who are in default ? If the association of subscribers
has been incorporated, it seems the contractor may not have a mechanic's
lien on the joint property for the balance of the price for work done under
contract with the subscribers' unless it can be shown that the corporation
adopted the contract of its promoters.^"
The payee named in the subscription may maintain an action, as can any-
^ Holmes «. Higgins, 1 B. & Caldwell « Davis «?. Hendrix, 1 Mo. App. Rep. 41.
74 [1833]. '' Davis v. Campbell (la.), 61 N. W. Rep.
^ Parsons Partnership, 46-7 ; Shibley v. 1053.
Angel, 87 N. Y. 626 [1868J ; Fuller v. s^avis «. McMillan (Ind. App.), 41 N.
Roine, 57 N. Y. 33 [1874]. E. Rep. 851.
3 Davis «. McMillan (Ind. App.), 41 N. » Davis v. Ravenna C. Co. (Neb.). 67 N.
E. Rep. 851. • W. Rep. 486; semhle Clayton v. Newton
4 34 Amer. & Eng. Ency. Law 335: Davis Academy. 95 N. Car. 398
u. Ravenna C. Co. (Neb.). 67 N. W. Rep. ^o Pittsburg & T. C. Co. r. Qnintrell
436. (T. nn.). 20 S W. Rep. 248 ; Weathcrford.
» Davis, etc , Manufg. Co v. Jones (C. etc., R. Co. v. Granger (Tex.'i 33 S. W.
C. A.), 66 Fed. Rep. 134; Davis Co v. Rep. 70.
McKinney (Ind. App ), 38 N. E. Rep. 1093. ,
42 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 50.
body selected to receive the money in the manner required by the terms of
the paper/ If no person, committee, or board is designated in tho paper
the payment many be enforced in the name of the remaining subscribers, or
by the association as a body, or by a building committee appointed by th?
association.' If the subscription paper stipulate that the sums subscribed
would be paid to any person who would erect a structure it is like a note
payable to bearer, and the subscriptions may be collected by any one vvlio
builds in accordance with the specifications of the paper." If the associa-
tion has been legally incorporated the action should be in the name of the
corporation." If one of the subscribers has been authorized to act for the
others and has incurred expense or advanced money on the faith of the sub-
scriptions he may sue other subscribers refusing to pay and in his own name.
Such is the case where one has acted as superintendent or a contractor and
carried out the plan contemplated. A good illustration is afforded in a case
where a college class at a class meeting voted to publish a class-book, the mem-
bers voting or assenting to the vote were held personally liable for the ex-
pense, at the suit of one who printed it, under a contract with a member of
the class elected business manager of the publication.* Agreements by sub-
scribers to pay a person their respective subscriptions upon the erection by
him of a certain structure may be enforced when the structure has been
completed, even though the subscribers among themselves have not per-
formed their mutual agreements.^
Subscribers are bound by stipulations and conditions contained in the
subscription paper, and none other can be shown in contradiction to
them. The subscriber cannot go "Outside the written contract to show dif-
ferent terms,* such as misrepresentations, not incorporated in the sub-
scription paper." In the absence of fraud, parol evidence is not admissible
to show that the subscriptions were not to be payable except on certain other
conditions not mentioned in the subscription paper. Thus it cannot be
shown that certain materials were to be used in a building to be built out of
the fund subscribed,' or that the contract was to be let to the lowest bidder,*
or that the structure was to be completed by a certain date.'
50. Second Party Not Named, but Determined by His Own Act. — In
many cases the contractor or second party to the contract who is to perform
or who has performed the consideration is not named in the offer, but any-
body who may accept the offer or perform the consideration may become
the contractor. Such contracts 'are those created by the performance of the
^ 24 Amer. «fe Eng. Ency. Liw 339 ' Gevuer v. Church (Neb.). 62 K W.
2 24 Amer. & Eng. Ency. Law, 339. 340. Rep. 51.
8 Cooper V. McCrimmin, 33 Tex, 383. ^ Cooper v\ MrCrimmin 33 Tex 387.
4 Wilcox 1). Arnold (Mass.), 39 N. E. ^Milieri;. Preston, 4 N. Mex. 314; mid
Rep. 414. see McCoruuick v, Reece, 3 Green (la.)
^ Davis v. Johnson, 49 Mo. App. 240. 591.
.* 24 Amer. &Eng. Ency. Law 341.
* /See Sees. 122-131. jw/ra.
§51.] LAW OF CONTRACTS. 43
consideration stipulated, as by the apprehension and arrest of a criminal
under a public offer of a reward, or by being the highest bidder at an auction
sale, or the lowest bidder for the performance of public works. To become
a party to such a contract the person must bring himself strictly within the
terms and conditions of the offer, or the rules and regulations prescribed at
the sale or in the advertisement for bids or proposals. In accepting an offer
of reward a person must know of the offer, and perform the consideration
with such knowledge, to become a party to the contract. In auction sales,
as in bidding for contract work, the contractor becomes the offerer ; and
if the sale is " without reserve " or the letting absolutely to the lowest bid-
der, then his becoming a party to the contract depends upon whether he is
the highest bidder in the former case and the lowest bidder in the latter
case. The fact that his offer is the highest in the one case or the lowest in
the other case does not make him a party to the contract, but it gives him a
right to a contract. To become a party to a contract the offer of the bidder
must be accepted either by the auctioneer knocking down the goods, or by
the formal acceptance of the proposal, as by awarding the contract to the
lowest bidder.
The subject of proposals and lowest bidder is of special interest to
readers engaged in construction work. Considerable space has been given to
the subject in Chapter VI. The custom of letting contracts to the lowest
bidder, which is so universal in public work, has been prolific of law-suits.
The large amount of money involved and the desire on the part of men in
office to reward their constituents have promoted sharp practice of every color
and design. Therefore such contracts receive the closest surveillance of
the court when they come before it, and in consequence thereof the law
regarding contracts to lowest bidders is pretty well determined.
51. Charter and Statute Requirements Must be Strictly Carried Out. —
Where directions and proceedings are prescribed by which the corporation
is to let^the contract or conduct the work, these directions and instructions
are imperative, and any neglect or deviation from them will be fatal to the
validity of tHe contract.' In an act which declared that a board of public
works " may " advertise for proposals and the contract be given to the lowest
bidder the court declared that the word "may" must be construed to
mean "shall/' ' The illegality of the contract may be asserted by any party
or interest.^
When it was left discretionary with commissioners to employ their own
labor and purchase their own materials and construct waterworks, or they
' Sedi^ewick on Const, and Stat. Law Pac. Rep. 693.
S68-;578; Henderson v. United States Ct. of 3 Knapp ». Swany.SGMich. 345 ; Dillon's
Olaims, Dec. Term, 1868, per Casey, C.J., Munic. Corps, § 382; Green's Brice's Ultra
PP; 1^^: '^i''es 43: Elmira Gas Co. v. Elmira, 2 Alb.
* McB lan v. Grand Rapids, 56 Mich. 95; L. J. 392; Randolph Co. v. Jones, 1 Breese
and see Santa Cruz Co. v. Heaton (Cal.). 88 (111.) 103.
44 t]NGmEERINQ AND ARGHITEGTURAL JURISPRUDENCE. [§ 52.
could let the work or portions of the work by contract, it was held that,
having elected to do the work by contract, they must let the contract
Btrictly as provided by law, and material deviations from the methods
imposed rendered the contract void and the contractor without remedy.'
Such legislative acts are not directory but imperative in their requirements,
and when a statute or charter declares that work is to be advertised, plans
and specifications prepared and published, bids invited, and the contract
awarded to the lowest bidder it is a formality that cannot be dispensed
with.'' *
52. No Recovery can be Had for Work and Materials Furnished for
Public Work Contrary to Law. — Any irregularity, gross mistake, fraud and
collusion, or any circumstance that tends to foster favoritism or to prevent
fair and honest competition, may suflSce to render the contract void and ta
deprive the contractor of any returns for his labor or materials. This must
necessarily work great hardships to a contractor, it is imposing upon him
great burdens to ascertain and watch the deliberations of a board or city
council; it is impossible to ascertain the mistakes and collusions of their
officers and agents; — but the courts maintain that, though the law may work
hardships, it is better that an individual should occasionally suffer from the
mistakes of public officers or agents than to adopt a rule which, through
improper combinations and collusions, might be turned to the detriment or
injury of the public."* This rule may seem unjust to a contractor who, with-
out having considered whether the law has been complied with or not, has
performed labor and furnished materials for a public corporation, and
expects compensation therefor, the same as if they had been done or fur-
nished for a private individual. But, nevertheless, the authorities hold that
a contractor when dealing in a manner expressly provided by law must seo
to it that the law is complied with. Where work is done for a city without
authority the fact that the city is benefited thereby does not establish its
liability to pay for it.*
53. The Law will Not Imply a Contract which the Law Forbids. —
The general doctrine unquestionably is that when one receives the benefit
of another's work or property he is bound to pay for the same, and this doc-
trine applies as well to corporations as to individuals in cases where
there is no restriction imposed by law upon the corporation against making
in direct terms a contract like the one sought to be implied; * f but where
there exist legal restrictions which disable a corporation from agreeing in
1 Dickinson v. City of Poiighkeepsie, 75 96 U. S. 691 [1877]; Nash «. St. Paul, 11
N. Y. 65. Minn. 174 [1866]; Burrell v. Boston
» Davison v. Gill, 1 East 64-71; People v. (Mass ), 2 Clifford 590 [1867].
Allen, 6 Wend. 486; Briggs «. Georgia, 15 * Springfield M. Co. v. Lane Co., 5 Greg.
Vern 72. 265.
3 Whiteside «. United States, 93 XJ. S. ^ Gases collected, 29 Anaer. & Eng. Ency.
247-257 [1876]; Hawkins v. United States. Law 864.
* See Chap. VI, Sec. 138, infra. f See Sees. 692-703, infra.
[§53. LAW OF CONTRACTS. 45
express terms to pay money the law will not imply any such agreement
against the corporation.' The law is based upon motives of economy, and
orginated perhaps in some degree from distrust of officers to whom the
duty of making contracts for public work was committed. If contractors
were allowed to recover the reasonable value of their work, or were allowed
compensation to the extent that the corporation is benefited, it would afford
a means of evading the law. Contractors could combine, conspire to not bid
against one another, bribe public officers to accept their proposals, and if
detected recover the reasonable value of their work and materials, and thus
defeat the very object of the statute.'' * No implied contract can be inferred
from the fact that the structure is subsequently used by the public'
Attempts have been made to give detailed estimates of the kinds and
quantities of materials and work required, and to omit from the specifications
and plans such materials and work as may be encountered that would greatly
increase the cost and which are difficult to determine in advance, it being
the intention to have such work done by outside parties or by the contractor
at a reasonable price. Such materials are hard-pan, rock, and quicksand.
If under the statute contracts can only be let to the lowest responsible bidder,
then no other manner of contracting can be legal, and any bid or contract
which leaves the payment for a substantial part of the improvement con-
templated, either in work or material, to private agreement, is contrary to
express provisions of law, and void." It seems that if the extent of such
extra work and material cannot possibly be ascertained in advance, even
approximately, it may be proper to mention such contingencies in the speci-
fications and contract and to provide for payment for such extraordinary
contingencies at what the extra work is reasonably worth; by measure or
weight, as per cubic yard or per ton; but such a course can never be
necessary where, by the exercise of reasonable diligence and suitable
investigation by the city surveyor or other proper official, the condition of
things affecting the cost of construction can be ascertained beforehand.
It can be justified only when the true condition of things cannot be ascer-
tained/ If a partial compliance were sanctioned, then there would be no
safeguard to the public interests in the requirements of the statute. If a
part of a contract be exempted from the force of the law, a small and com-
paratively unimportant portion of the work might be advertised and com-
' Brady V. The Mayor, 2 Bosworth 173; Pratt v. Swanton, 15 Vt. 147; Mmpliy v^
Zottniauv. San Francisco, 20 Cal. 102-105: Albina (Orej?.), 29 Pac. Rep 355 [1892].
Springfield Milling Co. v. Lane Co., 5 Welson « School District, 82 K H. 118; 1
Oregon '^65 [1874]; Berlin Iron Bridge Co. Dill Mun. Corp., § 464; many cases in.
V. San Antonio, 62 Fed. Rep. 882 15 Am' r. & Eng. Ency. Law 10'84-5.
2 Bare v. Village of G. 72 N.Y. 463-472; ^ McBrian v. Grand Rapids. 56 Mich 95.
McBrian v. Grind Rapids, 56 Mich. 95. ^ Parr v. Villasre of Greenbush, 112 N.
3 Taft v: Montague. 14 Mass. 281, a Y. 246 [1889]; Brady v. Mayor of New
gtreeti; McDonald v. Mayor, 68 N. Y. 23; York, 20 N.Y. 317-318; McBrian «j. Grand
Davis V. School District, 24 Me. 349; Rapids, 56 Mich. 95.
* See Sec. 43 and Sees. 136-140, infra.
46 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 54.
petition invited, and the great bulk be left to private agreement between
public officers and the contractor. ' *
It is thought advisable to mention some cases of interest to engineers and
contractors in which contracts have been held void and inoperative. The
books are full of cases where, contrary to law, contracts have been awarded
to parties who were not the lowest bidders, and it is fully established that
the contract in such a case is void, and that the contractor cannot recover
for work done or materials furnished, f
54. Irregularities Need Not be Caused by Contractor. — Irregularities in
awarding the contract, though not encouraged or solicited by the contractor,
may destroy the validity of the contract when subsequently discovered.
Thus where one of the competitors in bidding for a public work was per-
mitted by the engineer, to whom the proposals were referred for calculation
and comparison, to alter his bid so as to make it appear lower than that of
the others, and then after the acceptance of his bid, a contract was made at
different prices, and with material clauses inserted, not contemplated or
offered the other bidders; it was held that the contract was unauthorized
and void, and, further, that no recovery could be had for the work per-
formed.' The misfortunes of the contractor are thus augmented when it
lies in the power of a dishonest or careless engineer to render his contract
invalid. It has been so held when an engineer has been negligent, dishonest,
or collusive in his estimates, and it turned out that the successful bidder
was not the lowest bidder, that the law was not complied with, and that
there was no basis for a valid contract.'
The facts of the case cited, briefly stated, are that the estimate of the
engineer proved no better than a random guess, and, like such cases, was far
from being correct. The engineer reported the quantities as 10,000 cubic
yards of earth and 20,000 cubic yards of rock, and the successful contractor
bid $l.62|^ for earth and 2 cents for rock excavation, and in comparison
with others he was the lowest bidder. As it turned out, there were about
20,000 cubic yards of earth and 10,000 cubic yards of rock, which made him
one of the highest instead of the lowest bidder. The contractor cleared
about $12,000, or 20 to 30 per cent, above the fair value of the work. The
court said that such an estimate, in connection with a bid of five timea the
actual cost of earthworks and less than 1^ per cent, of actual cost of rock
excavation, was enough to show on its face that the contract was the
result of fraud and collusion.'
To engineers and contractors this estimate and bid may not seem so
extraordinary nor such clear evidence of fraud. When it is considered that
no appropriation or other provision had been made for engineering investi-
» McBriau v. Grand Rapids, 56 Mich. ^5. » In re Anderson, 109 N. Y. 554.
9 Dickinson v. City of P., 75 N. Y. 65.
* See Cha:\ VI, Sees. 136-150, infra. \ See Sees. 132-200, infra.
§ 54.] LAW OF CONTRACTS. 47
gation, and that no tests whatever were made before letting the work to
^.scertain the quantities of rock and earth respectively, the estimate is wot
so extraordinary. And men of experience engaged in construction know
that facilities for undertaking and handling work, the co-operation of con-
tractors, the joint performance of two dependent jobs, in which the work
done upon one counts upon the other, would all tend to make a wide difference
in the prices bid. For earth that must be hauled to the limits of a city or
to distant dumping-grounds they would require a good price, while other
contractors who have contracts for filling an adjoining lot at a good figure
would be glad to secure the earth for the digging; and likewise with rock,
contractors who had immediate use for stone in the vicinity could ex-
cavate or quarry it at a mere nominal price. Whether such conditions
existed is not known, but to an engineer the facts related would alone
hardly be conclusive evidence of fraud. If, however, there had been a
hojiafide effort to comply with the ordinance, and there had been an honest
mistake or error as to the quantities, the case would have been decided
differently.'
In a more recent case in the same state, with almost precisely the same
facts and circumstances, it was held, — that the contract was binding; that,
though the contractor in making his bid knew that the estimate misstated
certain items, and, in bad faith and with intent to profit by the ignorance
of the engineer, made an unbalanced bid, yet, there being no fraudulent
collusion between him and the engineer or other officer of the corporation, he
was entitled to recover, and had a right to the benefit of his own knowledge,
honestly acquired, so long as he did nothing to mislead or deceive the city.
It was held that the validity of such a contract did not depend upon the
accuracy of the officer charged with the duty of making the estimates, but
upon an honest effort on his part to be accurate; that the lowest bidder
under the esti ates is the lowest bidder under the law; that the city could
not hold the contractor to a performance and then annul the contract be-
cause the accurate result so varied from the estimates as to make the
accepted bidder higher than the others.'
The decision in this case, it is thought, will better meet the views of
engineers and contractors, but it does not overrule the preceding case; and
if the officers of a corporation have acted dishonestly, collusively, or even
negligently, in express violation of the statute or ordinance, the contract
may be declared void."
In another case, in which the prices for curbing and guttering were
about four times those of other bidders, and the bid offered to do flagging
tor nothing, which was the largest portion of the expense, the case was
» In re Anderson, 109 N. Y. 554. « Acm'd McMullen v. Hoffman (C. CX
» Reilly v. Mayor, etc., of N. Y., Ill N. 75 Fed. Rep. 547.
Y. 473.
48 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 55..
regarded as free from fraud, and ifc was held that the prices alone were not
sufficient reason for declaring the contract invalid.^
55. Precautions to be Taken by Contractors with Regard to Parties and
Their Powers. — In conclusion it is submitted that when a contract is maae
and entered into " by and through commissioners or boards of public worics,
government or city officers or engineers, or agents of a public corporation "
it is imperative that the parties study the act or statute to which the cor-
poration or board owes its existence; that the constitutionality of the act
be considered; that the charter granted be consulted to see that the powers-
and privileges of the corporation comprehend the proposed improvement;
that the deliberations and actions of the city council or board have been
legal and constitutional and within the strict interpretation of the act; that
the indebtedness limited by the act has not been exceeded, nor the appro-
priation been exhausted ; that the power to make and enter into contracts
has not been specifically given by the act to some particular officer, and
that it is a power that can be delegated; that the officer or agent who assumes
to act has been duly appointed, elected, and authorized to act on behalf of
the corporation or board; that his acts are within the authority so dele-
gated or bestowed; that such officer or engineer has in honesty and in.
good faith performed his duties according to law; that the work itself is
not forbidden by statute, ordinance, or public policy; and finally that th&
property upon which the work is to be performed has been acquired,
accepted, or condemned pursuant to the powers given and the laws govern-
ing the corporation. Then, and only then, can a contractor feel secure in
the prosecution of his work and that he will be rewarded for his labors.
56. Source of Power. — " By virtue of the power vested m him [them]/*
etc.* The importance of this clause must be evident from what has pre-
ceded. Every opportunity should be given the contractor to investigate
the conditions under which he enters into the contract, and to inquire into
the legality of his undertakings.
67. Residence of Parties — Place Where Contract is Executed. — "By
and between of the City of
County of State of "^
Here should be inserted the full name of the person, partnership, or cor-
poration that assumes to act and be responsible for the performance or
execution of the works undertaken. The contract should give the full and
correct name under which the parties do business if a partnership, and if a
corporation the precise title under which it was incorporated.
58. Laws Governing Contract May be Determined by the Place Where
Contract was Made or by the Residence of the Parties. — It is important
that the residence of the parties be given. Corporations should be described
» Matter of N. Y. P. E. P. S., 75 N. Y. 324 [1878].
* See Sees. 29, supra, and 200-202, infra.
§58.] LAW OF CONTRACTS. ^ 49
very carefully, as the question of jurisdiction to which they belong is an
important one in serving notices, bringing suits, and in all legal proceed-
ings. The personal ability or disability of a party to make a contract is often
decided by the law of the party's domicile,^ and the validity of an assign-
ment for the benefit of creditors is tested by the law of the assignor's domicile.''
The law of the owner's domicile determines whether his property is real or
personal, as well as the right to its possession and the validity of its transfer.'
The residence of the parties, the place in which the contract is executed
and delivered, and the location of the subject-matter of the contract or the
place of performance may one and all have much to do in determining the
validity, interpretation, enforcement, etc., of the contract, and the customs
and usages under which the work shall be executed and paid for. The law
that should govern is the law by which the parties intended to be governed,
and if that be expressed it will govern. If it be not expressed, theii there
are certain presumptions which are conclusive of the parties' intention.
These are : 1. " That an agreement to perform an act in a certain place is
made in reference to the law of that place. 2. That an agreement to per-
form an act without designating a {)lace for performance is presumed to
be made with reference to the law of the place at which the agreement was
made." If it appear from the face of a contract made in one place that it is to be
performed in another place its validity, nature, obligation, and interpretation
will be determined by the law of the place of performance, but not its-
legality, it seems.* If no place of performance is designated in the con
tract, or it may be performed anywhere, it will be governea oy the law o1
the place where it was made.^ A contract made in one state to be per-
formed partly in that state and partly in other states will be governed hj
the law of the place where made ;° but when a contract was made in one
state for a building to be erected in another state the law of the state where
the contract was performed — i. e., the house built — held with regard to
mechanics' liens. ^ In building and construction contracts the place of per-
formance is usually named in the description of the subject-matter, the site
or locality; but whether the rule will hold hard and fast may be doubted,
for many exceptions and contrary decisions have arisen under the conflict of
laws of different places. If the full intention of the parties cannot be ascer-
tained from the contract, the custom or usage of the place where the con-
tract was made may be shown to assist in its interpretation. If free from
obscurity the intention as expressed will hold unless it be proved that the
1 Matthews v. Murcheson, 17 Fed. Rep. ^ 3 Amer. & Eng. Ency. Law 544, 561-2 ;
760 [1883] ; Spearman v. Ward, 8 Atl. Bauk v. Hall (Pa.), 24 Atl. Rep. 665 ; ao
Rep. 430 ; 3 Amer. «fc Eng. Enoy. Law cord Leake's Digest of the Law of Con-
573. ' tracts 207 ; Cnrtwright v. Railroad Co.
2 3 Amer. & Eng. Ency. Law 573. (Vt.), 9 Atl. Rep. 370 [1887]
' 3 Amer. & Eng. Ency. Law 574. « 8 Amer. & Eng. Ency. Law 560.
* Brown v. Amer. Finance Co., 31 Fed. 'Birder v. Carhie, 44 N. J. Law 208;
Rep, 516 ; West. Un. Tel. Co. ». Eubank Thurraan v Kyle, 71 Ga. 628.
(Ky.), 38 8. W. Rep. 1068.
60 ENQINEERINQ AND ABCRITEGTURAL JURISPRUDENCE. [§ 5S
interpretation wonld be different according to the law of the place whero
the contract was executed/ When it is not clear that the contract is to be
performed in a place designated, it is a general rule that the rate of inter-
•est, the penalties of usury, the ceremonies to be performed, such as those
required by the registry laws, the statute of frauds, and special statutes per-
taining to the subject-matter, all depend upon the laws of the place where
the contract is drawn, signed, and delivered, or where it is purported to have
been entered into. It is often said that if a contract is valid and binding
where made, it is valid and binding everywhere, and if void or illegal where
made, it is generally held void and illegal everyv^Kere else.'' This is gen-
>erally so unless the contract is contrary to good morals or repugnant to the
policy of the state where it is to be enforced/ A contract that is valid when
made is not affected by a change in the public policy of the state;* and it has
been held that where a contract is valid at the time when it is sought to be
enforced the fact that it was against public policy when made, is immaterial.*
The operation of a contract and the rights of the parties under it, so far as
such rights depend upon the construction and validity of the agreement or
on questions of sufficiency of performance, are governed by the laws of the
place where the suit is brought," as are also questions of the remedy to be
allowed and the manner of enforcing the contract. A discharge of a con-
tract by the law of the place where it was made is generally held a dis-
charge everywhere; but a discharge by the law of a place where it was not
made or to be performed will not be a discharge of it in other countries.'
.All suits must be brought within the time prescribed by the statute of limi-
tations which prevails in the place where the action is brought, yet the law
of the place where the contract was made may limit the time in which a
a suit may be brought, for no action can be brought in another place where a
greater length of time is allowed or where there is no limitation at all.*
The place of contract is not the place where a note or bill is made, drawn,
or dated, but the place where it is delivered from drawer to drawee, from
promisor to payee, from indorser to indorsee.' A contract is made and
determined by the place in which it was completed. Therefore a contract
made by a traveling agent which required ratification by his employer was
deemed to have been made at the place where tho ratification was given.'"
The author has dwelt upon this subject to show the necessity of describing
the parties, their residence, and the place where the contract is entered into
and to be performed, more than for the purpose of explaining the laws by
1 3 Amer. & Enj?. Ency. Law 561. & St. P. Ry. Co. (C. C), 62 Fed. Rep. 904.
2 Winter v. Baker, 50 Barb. 432 [1867] ; « 3 Amer. & Eng. Eocy. Law 575.
3 Amer. & Eng. Ency. Law 552-3. '' 3 Amer. & Eng. Ency. Law .581-2.
* 3 Amer. & Eng. Ency. Law 554 ; Union ^ 3 Amer. «& Eng. Ency. Law 583-4. See
liocomo. Exp. Co. v. Erie Ry. Co., 37 N. J. other cases cited.
Xaw 23 [1873]. » Overton «. Bolton, 9 Heiskell 762
4 Stephens v. Southern Pac. Co. (Cal.), 41 [1872].
Pac. Rep. 783. lo Schiienfeldt v. Junkerman, 20 Fed.
6 Hartford Fire Ins. Co. «. Chicago, M. Rep. 357 [1884].
^'59.] LAW OF CONTRACTS. 61
which the contract will be governed. To do the latter in a few pages or
even chapters would be out of the question, for it embraces the whole sub-
ject of conflict of laws, one of the most confused and perplexing sub-
jects in the study of law.
59. Time When Contract was Made or Entered Into — Day or Date.—
Of equal importance is the date of a contract, which is usually inserted ia
the following phrase: " This day of. .... . in the year " E very-
engineering, as well as legal, document or memorandum should be correctly
dated, so much often depends upon the day on which it was made. The
validity, enforcement, and time of completion of a contract are . sometimes,
determined by the day or hour when it was delivered. If a longer period
than that fixed by law has elapsed since its breach or execution both parties'
rights may have been forfeited, and the contract be dead and worthless*
This suggests the question as to what completes the contract, or at what
time does it become binding. A written contract or specialty is not binding
until delivered.' It has therefore frequently been held that a deed or bond
or note signed on Sunday,^ but delivered on some other day of the week, is
valid and binding, since such instruments take effect from the time of de-
livery; and the deed may have been acknowledged on Sunday.^ The same
has been held of other contracts in writing, as an order for goods* written
and signed on Sunday, but dated, delivered, and filed on a secular day; a
contract to finish a court-house signed by one party on Sunday.^ To render
a contract void because made on Sunday it must have been closed or per-
fected on that day." The fact that negotiations leading up to the contract
took place, or that terms were agreed upon, on Sunday does not render the
contract invalid if it wei'e completed on a week-day.' On the other hand a
proposition of purchase and sale made on a week-day, but completed and
delivered on Sunday, is void.*
If a contract 7nust be made upon a Sunday or legal holiday the terms
may be agreed upon, the instrument drafted, signed, sealed, and acknowl-
edged on Sunday, and then delivered upon some succeeding day not a
holiday, postdating the contract to agree with the date of delivery. It
seems that the contract cannot be delivered on Sunday to another as an
agent to deliver upon a week-day, for when a note was signed by two
makers on Sunday and delivered by one only on a week-day it was held not
to bind the other signer, as he could not authorize a delivery on Sunday.'
Under such a law it would seem legally proper for the party who could not
' McFarland v. Sikes (Conn.), 3 N. E. « Foster v. Worten, 67 Miss. 540; Moseley
Rep. 352. V. Van Hoser. 6 Lea (Tenn ) 286.
" 24 Amer. & Eng. Ency. Law 555, 566, ' Gases in 24 Amer. & Eng. Ency. Law
and cases cited. 566.
' 24 Amer. & Eng. Ency. Law 555, « Smith v i^oster, 41 N. H. 220.
note. 'Bishop ^n Contracts (Eulg:. ed.) § 544;
^ Cameron v. Peck. 37 Conn. 556. Davis v. Barger, 57 Ind. 54; and other casea
» Behan v. Ohio, 75 Tex. 87. cited in 24 Amer. & Eng. Ency. Law 566.
52 ENGINEEIUNO AND ARGHITEOTURAL JURISPRUDENCE. [§ 59.
be present on a day following, to take his copy of the contract with him, and
to make a delivery to the other party by messenger, express, or through the
post-office.
In some jurisdictions contracts made on Sunday, and. therefore invalid,
maybe ratified on some succeeding week-day;' but there are many cases
that hold that the ratification must amount to the making of a new con-
tract. The diversity of opinions is due to the different statutes of the states,
and to the view that the courts have taken of Sunday contracts.
It is suggested that courts will have little sympathy with contracts made
and executed on Sunday, inasmuch that in nearly all Christian countries
and states all labor and business are required to be laid aside on the Sabbath
•except such work as is necessary or is an act of charity, and parties who de-
liberately transgress the law will have little consideration when they seek
the law's protection. The courts therefore frequently refuse to have any-
thing to do with cases where Sunday contracts have been made, holding that
the party complaining is as bad as the one complained of, denying either
party any rights under the contract, and leaving the parties where their
illegal transaction has put them.
As to what is necessary construction-work, there are few cases reported in
the books. If property be exposed to imminent danger or peril it is work
of necessity to preserve it.' It has therefore been held proper to gather
and handle grain, hay, sap, etc., on Sunday that were liable to spoil or be
damaged, and to save logs scattered by storm. A flow of two barrels of salt
water a day into an oil-well was held not so injurious that it would make
the pumping of it out on Sunday necessary work, and relieve the operator
from the penalty imposed by the Sunday law.' Repairs to a mill,* as the
-cleaning out of a wheel-pit, on Sunday, so as to prevent stopping on week-
days, and thereby shutting down a mill employing many hands, was held
not a work of necessity.' It has been held that a contractor was not
chargeable with negligence for refusing to work on Sunday when by so
doing and constructing a sewer he could have avoided injury to a brick
wall."
One is not safe in undertaking any work on Sunday that can as well be
done on a week-day.' The fact that a creditor wished to go away immedi-
ately does not make it necessary to sign, deliver, or accept on Sunday an
order to pay the debt.* If one contract to servo another in Alaska, and to
give his whole time, attention, capacity, and energy to the business, and to
work as directed, at all times, at any place, Sundays and holidays not ex-
'24 Amer. & Eng. Ency. Law 561, 570, 'Oleson v. City of Platlsmouth (Neb.),
571, 52 N. W. Rep. 848.
^'Parmalee v. Wilks, 22 Barb. (N. Y.) 'Biicher v. Fitchburg R. Co , 131 Mass.
540. • 156, 125 U. S. 555; Holcomb ??. Danby, 51
3Com. «. Funk, 9 Pa. Co. Ct. Rep. 277. Vt. 428.
, "Hamilton r. Austin, 62 N. H. 575. « j^ace v. Putnam, 71 Me. 238; and see
^ McGrath v. Merwin, 112 Mass. 467. Meader v. White, 66 Me. 90.
•§59.] LAW OF C0NTBAGT8. 63
'cepted, he may be required to work on Sundays, and may be discharged for
refusing to do so.'
If a contract be not dated, the day on which it was made and entered
into and delivered may be proved by evidence. The omission of the date is
not fatal to the validity of a simple contract, nor of a deed, though it may
affect the negotiability of a bill or note." If an instrument be dated the date
inserted will be regarded as the true date unless otherwise proven.'
1 Nelson ij. Pyramid H. P. Co. (Wash.), 30 » 5 Amer. & Eng. Ency. Law 77.
Pac. Rep. 1096; other cases accord and ^ /8^ 5 Amer. & Eng. Ency. Law 80, 81-
^ontra in 24 Amer. & Eng. Ency. Law 559. 9^
CHAPTER II.
LAW OF CONTRACTS. ESSENTIAL ELEMENTS OF A CONTRACT. THE
CONSIDERATION.
THE THING FOR WHICH THE ACT IS DONE. COKTRACTOR CONSENTS TO
DO SOME LAWFUL ACT : FOR WHAT ?
60. The Consideration. — An undertaking or agreement is not a contract
that can be enforced in our courts of law unless it has been made or
assumed for a consideration. There must be a clear understanding between
the parties, and there must be some consideration for the obligations as-
sumed by both parties, something given in exchange for the obligation^
that, in the theory of the law at least, is commensurate with the obligation
undertaken.* The law will not permit a person to assume contract obliga-
tions for nothing. There must be something given in exchange, and that
something, so far as it is the policy of the law to judge, must be legally
equivalent to the obligation assumed.
The consideration of a contract may be described as that which either
party suffers, surrenders, gives, does, or refrains from doing, or promises or
pledges, for the obligation which he receives in return from the other
party. It may be that which is given or promised by one party for that
which is received or undertaken or relinquished by the other party. The
consideration may consist of some right, profit, interest, or benefit accruing-
to one party, or it may be some forbearance, detriment, loss, or responsi-
bility endured, suffered, or undertaken by the other party. The thing given
or surrendered may be any material thing of value, as money, an act, a right,.
or a privilege, or it may be simply a promise or an undertaking for a con-
sideration of value. There must be some undertaking or obligation as-
sumed or there is no contract; a mere exchange of two articles of value is-
not a contract.
61. As Regards Consideration. — The act undertaken or the promise
given may be in consideration of something given, or of a promise to give,
to pay, or to do something, or to refrain from doing something. The con-
sideration may be a benefit to the one to whom it moves or is promised, or
a detriment to the one who furnishes it. Detriment may be simply the-
doing of a thing which the party is not bound to do, and does not necessarily
* Langdell's Summary of Contracts 1017.
54
§ 62.] LAW OF CONTRACTS. 55
mean injury. There may be a clear benefit to a promisor, and yet no con-
sideration— for example where the benefit does not come from the promisee.
Detriment to the promisee is a universal test of the sufficiency of considera-
tion, and every consideration must possess this quality. If there is detri-
ment to the promisee it does not matter whether there is benefit to the
promisor or not. The consideration may inure to the benefit of the
promisor or of some third person, or to the benefit of nobody. Considera-
tion therefore means rather that the promisee suffers detriment more than
that the promisor is benefited.* The detriment must be a detriment from
entering into the contract, nofc from the breach of it.'' In legal contem
plation the promise is always given and received in exchange for the consid-
eration, and for no other purpose. A promise can never constitute a gift
from the promisor to the promisee.
62. Consideration in Case of Subscriptions. — From what has been said a
natural conclusion would be that gratuitous subscriptions to promote a
common object were not binding. Many engineering and architectural
schemes are promoted by the concerted action of public-spirited citizens,
whose ardor is less warm when it comes to paying their subscriptions than
when they made them. To the contractors and engineers who have under-
taken to carry out their plans it is a matter of much moment whether thei
can collect anything for their time, labor, and materials.*
Where several persons sign a subscription paper, each agreeing to pay a
certain amount towards an enterprise in which all are interested, the
promise of each may be held 'a good consideration for the promise of the
others. This may be a consideration for a binding contract between the
subscribers, but it is not a consideration as between the subscribers and one
who is not a subscriber, but who has furnished the means to carry out the
enterprise for which the subscriptions were made.
If the subscription is for a designated purpose, and a contractor is
' invited to carry out the conditions stipulated in the subscription paper,
which he has done, or if on the faith of the subscriptions he has expended
money or assumed liability, an acceptance of the offer of the subscribers will
be implied, and the contractor may collect from the subscribers. In the
absence of the above circumstances the subscription is a mere offer and
cannot be enforced. If an offer merely it may be revoked at any time
before the consideration and conditions have been performed. A gratuitous
subscription with only one signature is but an offer which, until accepted by
the promisee in express terms or by a performance of the conditions
stipulated tiherein, is without a consideration, and cannot be enforced against
the will of the subscriber. Doubtless, however, the law would imply a con-
tract to reimburse the contractor for the amount he had expended. Cer-
1 Currie «. Mlsa, L. R. 10 Ex. 1R3; Lang- ' Ridgway «. Grace (Com. PI.), 21 N. Y.
dell's Summary of Contracts 1022. Snpp. 934.
* See Parties, Sees. 48, 49, supra.
56 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 63.
taiiily it is well settled that wheD a contractor to whom the subscriptions
run has performed his part or has incurred obligations on the faith of such
subscriptions, and has complied with the conditions on which they were
iiade, the contract of each and all can be enforced.*
63. Adequacy of Consideration. —The consideration must have some
value, and tlie considerations moving irom either party to the other party
must be legally equivalent. In the absence of fraud the parties themselves
are left to judge of the relative value of the considerations which they
furnish or pledge, but if the agreement be such that the consideration can-
not possibly be equivalent to the promise the contract will not hold.
The value of most considerations, as well as of most promises, is some-
thing which the law cannot measure; it is not merely a matter of fact, but
a matter of opinion. If the parties think that the consideration is equal to
the promise, or vice versa, and if they are willing to exchange one for the
other, the consideration will be equal to the promise if the law can see that
it has any value at all. Fifty cents cannot be a consideration to pay $1
unconditionally and on request, i. e., immediately. But $1 is a sufficient
consideration for a promise to pay $1000 at some future day or upon the
happening of some uncertain event, though the $1 is only a sufficient con-
sideration for a general or unqualified promise to pay $1." The smallest sum
of money may be a sufficient consideration for a promise to acknowledge
satisfaction of a judgment for the largest sum." So |1 may be a considera-
tion for a farm whose market value is $5000, or $1000 may be a considera-
tion for so trivial a thing as a canary-bird.
The reasons for these discriminations are that the law has never aban-
itoned the principle that the consideration must be commensurate with the
obligation which is given in exchange for it, that though the smallest con-
sideration will in most cases support the largest promise, this is only because
the law shuts its eyes to the inequality. Any inequality to which the law
cannot shut its eyes is fatal to the validity of the promise.' Yet, though the
most trivial thing may answer for a consideration, there must be something,
for the court cannot disregard the fact that something and nothing are not
equivalent. The inadequacy of the consideration must not be so gross as of
"tself to prove fraud or imposition.* A promise to accept a part of a debt
ilready due in payment of the whole if paid by a certain day is without
jonsideration and void, for surely "a part cannot be equal to the whole." *
64. The Consideration of a Contract Must be Something More Than a
Moral Obligation. — A mere moral obligation or duty is not regarded in law
» Homan v Steele, 18 Neb 652 [1886]; "Langdell'sSummary of Contacts 1017.
Onnan v. Buel (Neb.), 59 N. W. Rep 515; ^Langdell's SiimmMty 1017; Emmet Co^
Hi rert v. University. 53 Ind. 326 [1876]; v. Allen (la.), 41 N. W. Rep 201 [1889].
Brownleo v. Lowe (Ind.), 20 N. E Rep. ^ Juclj v. Louderman (Ohio), 29 N. E.
:'.01 [1889]; Stearns v. Corbett. 33 Mich. Rep. 181.
458 [1876]; but see 24 Amer. & Eug. Ency. * W- tts v. Frenche et al., 19 N. J. Eq.
Law 328, et seq. 407 [1869].
^QQ.] LAW OF CONTRACTS. &7
of sufficient value to support a promise. A debt owing by a woman's dead
husband which is barred by limitations is not such a consideration as will
support an agreement by her to pay the amount of the debt.'
There are what seem to be exceptions to the statement that a moral
obligation will not support a promise. The cases of obligations which are
not enforceable because of the infancy or bankruptcy of the promisor or
because the right to an action is barred by the statute of limitations are
often cited as such exceptions. In these cases the obligation is not regarded
* as having ceased to exist, but the law has given the party a defense which he
may exercise or waive, and a new promise is held to operate as such a waiver.
The action in such a case is not brought upon the new promise, but either
upon the original obligation or upon one implied by law." A promise to
pay a debt which the creditor has by his own act effectually released is
without consideration. A promise by a widow to perform a promise made
by her while married is not binding without a new consideration in states
where married women are under coverture.^ An obligation enforceable in
equity will support an express promise to pay and make it suable at law.*
The moral duty of a father to provide for his child has been held a sufficient
consideration for a promise to pay money. ^
65. The Consideration Must Not be Wanting.' — If the thing to which the
consideration relates has, contrary to the belief of the parties, no existence,
the contract obligation will not hold. Thus materials sold that turn out to
have been destroyed before the bargain was made is in fact no contract of
sale.' So if parties contract for a thing which they suppose to exist, but
which in point of fact does not exist, the contract is void.®
66. The Doing of a Thing by One Party Which He is Already Bound to the
Other Party to Do is Not a Consideration for a New Promise or a Contract. —
A promise to pay a public officer an extra fee or a sum beyond that fixed by
law is not binding, even though he renders services and exercises a degree of
diligence greater than could have been required of him; " but a contract by
persons whose property was threatened by a mob to reimburse the sheriff
for money expended by him for the wages and subsistence of special depu-
ties is not void as against public policy so long as he exacts nothing for his
own services or the services of his regular deputies.'"
'Sullivan v. Sullivan (Cal.), 33 Pac. Hopkins i) Hinkley, 61 Md. 584; Prices.
Hep. 862 Peper, 13 Bush 42, horse dead. And the
'^ LfingdeH's Smmary. if Contracts 1026. same is true of a house that has been
3 3 Amer. & Eng. Ency. Law 841. burned Taylor v. Caldwell, 3 B «& S.
* Condon??. Barr (N. J.), 6 Atl. Rep. 826 Walker; v. Tacker, 70111. 527.
■614 [1886]; Cameron v. Fowler, 5 Hill (N. » Marion v. Bennett, 8 Paige 312; Mays
Y.) 306. V. D wight, 1 Norris (Pa.) 462; Indianapo-
6 8 Amer. & Eng. Ency. Law 840. lis v. McAvoy, 86 Ind. 587.
«Tife D. Blake (Minn.), 38 N. W. Rep. 'Decatur v. Virmillion, 77 111. 315
202. [18751.
"" Pollock on Contracts 441; Bishop on '" McCandless v. Alleghany Bessemer
Contracts, § 70 ; Rogers v. Walsh, 12 Steel Co. (Pa. Sup.), 25 Atl. Rep. 579.
l^eb. 28; Gibson v. Pelkie, 37 Mich 380;
58 ENGINEERING AND All CEI TEG TUBAL JURISPRUDENCE. [§ QQ.
A promise by the owner to pay additional compensation for the perform-
ance of a contract which the contractor is already under obligation to the
promisor to perform is without consideration/ A promise by the contract-
or's surety, to whom the money to become due under the contract had been
assigned, to pay the claim of a subcontractor if he would do certain wprk
which he was required to do by his contract was held without considera-
tion.'* A promise by a building-contractor to put another coat of oil on the
inside of a house, made after he had fully complied with his contract and
without any additional consideration, is a mere gratuity, and his failure to
put on the additional coat will not prevent him from recovering the full
amount due under his contract." If the promise had been made before he
had performed his contract it might have been different. When a construc-
tion company had completed work according to contract an agreement to
accept less than the contract price was held without consideration and not
to release the owner from liability for payment at the original contract rate.*
The same was held of an agreement of a subcontractor to sign a release of
the contractor from personal liability in consideration that the owner would
pay the former a past-due note.* A promise to pay at a future time a debt
already due, and which draws interest, is not a consideration for the exten-
sion of the time of payment when the rate of interest thereon is not
changed .'
A promise by an owner to an architect to pay him a commission of 5
per cent, additional as an inducement to resume work upon a job for which
he had agreed to furnish plans and to superintend is void, there being no
consideration for the promise. The architect in this case had contracted to
prepare the plans and to superintend the erection of a large brewery, but
upon learning that a certain contract, which he had hoped himself to secure,
had been given to another he became angry, took his plans, called off his
superintendent, and refused to have anything more to do with the brewery.
The facts of the case were that the architect took advantage of the owner's
necessities and extorted a promise to pay him 5 per cent, as a balm for
his feelings and as a condition for his complying with his contract already
entered into. To permit one to recover under such circumstances would be
to offer a premium upon bad faith, and invjte men to violate their most
sacred contracts that they might profit by their own wrongs.''
The principle seems to apply even when the promisee is under obligation
to a third person to do the thing in question, for there is a conclusive pre-
sumption of law that the act is done in discharge of the previous obligation,
» Jones «.Risley (Tex. Sup.), 32 S. W. sMcNiitti?. Loney (Pa. Sup.). 25 Atl.
Rep. .1027. Rep. 1088; >*vd see McCarty v Hampton
2 Alley 15. Turck (Sup.), 40 N. Y. Supp. Bldg. Assn., 61 Iowa 287, where an addi-
433. tional guaranty w 8 f^racted.
3 Wldiman v. Brown (Mich.), 47 N. W. « Stickler 'd. Giles (Wash,), 37 Pac. Rep.
Rep. 231 [1890]. 298.
* Fitzgerald v. Fitzgerald & Mallory '' Li naienf elder «. W. Brewery Co. (Mo.),
Const. Co. (Neb.), 59 N. W. Rep. 838. 15 S. W. Rep. 844 [1891].
§ 67.] LAW OF CONTRACTS. 69
and not as a consideration of a new and later promise.' So if a builder
is under a contract to complete a house by a certain day and an out-
sider promises him a bonus if he will fulfill his contract the promise would
be without a consideration. It would be otherwise, however, if the contract
had been mutually rescinded or the contractor had good and sufficient reason
for abandoning the work. A promise in consideration that he should complete
it a day earlier than that required by his contract would be binding, and an
extension of time by one party is a good consideration for the promise of
another.''
A request by the owner of a building, that subcontractors stop work for
the reason that the contractor had overdrawn his account and that he could
get it done more cheaply, and a refusal on the part of the subcontractors,
whereupon the owner told them to go ahead and to send the bill to him, but
to make a reduction in the price if possible, was held to create a contract
between the owner and subcontractors on sufficient consideration.' An
agreement of a construction company to commute its contract rate of com-
pensation for finished work to a lower rate, because the work had not been
completed as agreed, in consideration of which the other party consented to
accept the work in its unfinished condition, affords a sufficient consideration
to sustain the stipulated reduction.*
A contract to make an excavation at an agreed price, the contractor
having examined the work before taking the contract, and having furnished
proof that it was found more difficult than was supposed, which was dis-
puted by disinterested witnesses, is insufficient to show consideration to
uphold a promise to pay an additional price.** An agreement to permit
the contractor to retain twenty-five dollars already paid him above his
expenses and to pay for the material furnished in consideration of the
cancellation of the contract is not void for want of a consideration." A
promise to pay for extra materials ordered by the architect, made before the
work is completed, is founded on sufficient consideration as to materials
already used, as well as those not used.'
67. The Consideration Must be Present. — The consideration must be
present, i. e., in legal contem.plation the promise or undertaking must be
assumed the moment the consideration is completely performed. This would
seem to be necessary if the consideration is given in exchange for the prom-
ise. A past act performed without regard to any promise cannot be said
to have been given in exchange for the promise, and a promise made for a
' Lantrdell's Summary of Contracts 1018. * Casterton «. Mclntire, 23 N. Y. Supp.
2Risley«. Smith, 64 N. Y. 576 [18761, 301.
and cases cited. «Blagborne v. Hunger (Mich.), 59 N.W.
^Yoeman v. Mueller, 33 Mo. App. 3,43 Rep. 657.
[1889]. 'Irwin v. Locke (Colo,), 86 Pac, Rep.
''Fitzs^erald v. Fitzgerald & Mallory 898.
Const. Co. (Neb.), 59 N. W. Rep. 838.
*S€e Sec. 563, infra.
60 ENOINEEBINO AND ARCHITECTURAL JURISPRUDENCE [§ 67.
oonsideration already performed is simply a promise, without a consideration,
and therefore cannot form an element of a binding contract. A promise
made for a consideration to be thereafter performed, though invalid as a
promise, may take effect as an offer and become binding if the considera-
tion is performed before it is revoked or has ceased to exist.
A promise made in consideration of some future act must be distin-
guished from a promise given in exchange for a promise to do some future
act.' In the former case the promise is in exchange for a future act, which
is only an offer, while in the latter case the promise is in exchange for a
present promise, and the promises themselves are the consideration, one for
the other. When the consideration consists of performance the promise
becomes binding when the act is performed. If an owner promise to pay a
contractor a sum of money if he will do a particular act, and the contractor
does the act, the promise thereupon becomes binding, though the contractor
at the time did not engage to do the act." A promise in consideration of
some past or future act must be distinguished from a promise for or in con-
sideration of a promise to perform some deed or work some time in the
future, or of a promise made on account of some past act by which the party
derived some benefit or the other party suffered detriment. In the former
case the past or future act itself would not be a sufficient consideration, but
in the latter case the present promise is a good consideration. Thus if an
owner says to a builder: "I will pay you ten thousand dollars to build
me a house," and the builder says: "All right," and the builder thereupon
makes arrangements to build, 'it is not strictly an enforceable contract until
the builder has built the house. The owner may revoke the offer any time
before the builder has completed the house, i. e., furnished the stipulated
consideration; and the builder can have no action for the revocation, there
being no express contract, though the law will imply a contract by the
owner to pay the builder the reasonable value of what he has received or
been benefited. But if the owner says: "I promise to pay you ten thousand
dollars if you promise [agree] to build me a house, payment when house is
completed,*' to which the builder agrees, then the contract is supported by
a present consideration, viz., the promise to build. So a promise to pay in
consideration of some service rendered in the past, and not at the express or
implied request of the promisor, is not binding.'
In all these cases if the owner is free to refuse or can return what he has
benefited or been enriched by the labors of the contractor, and he does
not return it, the law will imply a contract to pay for it what it is rea-
sonably worth to him; but the contractor does not recover upon an express
contract made by him with the owner, but upon the contract imposed by
the law to promote justice and to prevent unjust eKrichment. If the
' Langdell's Summary of Contracts. 1024 v. Sweesy CNeb.). 67 N" W. TJpp. 718;
* Train «. Gold, 5 Pick (Mass.) 380-285. Myers?? Dean (Com. PI ), 33 N. Y.
«3 Amer. & Eng. Ency. Law 838; Stuht Supp. 237.
§ 68.] LAW OF CONTRACTS. 61
owner cannot restore what he has received he need not pay for it, as when
a contractor has built a house upon the land of another without his knowl-
edge or consent, or has built the house materially different from the one he
contracted to build ; there is no contract implied by law to pay for it, and
the fact that the owner uses it and enjoys it does not add to his liability to
pay for it.' *
If a part of the consideration is present and a part past it will support
the promise or agreement." Therefore when certain sums were subscribed
to induce a contractor to complete the grading of a street begun under a
contract with the city and in consideration of that agreement the contractor
made a settlement with the city for the work then done and entered into
engagements for its completion, which arrangements and expenditures he
was not obliged to perform under his contract with the city, and which
were necessarily productive of loss and injury in case of nonpayment, it was
held that the consideration was amply sufficient to support an action for the
amount pledged.^ A receipt in full by a subcontractor who claimed extra
remuneration for extra work has been held a good consideration for a
promise to pay for the same extra work if the promisor succeeded in getting
an allowance for the same.*
68. From Whom Consideration Must Come. — The consideration of a con-
tract must move from the person who receives the promise, i. e. , the prom-
isee. If it does not, then the promise cannot be said to 1 -ive been given iri
exchange for it, but as a gift, which is not binding on the promisor. Cer-
tain courts may and do allow persons for whose benefit thp promise is made,
i. e.f the beneficiaries, to sue on a contract; but, as Professor Langdell has
said in his Summary, the consequence is that the promisor is then liable to
two actions — one by the promisee and one by the beneficiary. In truth a
promise to A to pay one hundred dollars to B confers no right upon B in
law or equity, but there are similar casep in which B has been allowed to
recover against the promisor. °
Thereforo a third party was held not liable for the work of a contractor,
because he told him, while the work was in progress, to go on and do the work
ordered by the owner and he would pay for it; nor for the reason that the
owner introduced the third party to the contractor as his partner and
coadjutor in the work, and that he was" shown what was being done in con-
nection wit-h the owner, and that he expressed great satisfaction and told
the contractor to go on and do all that the owner ordered and he would pay
for it. Th- promise was held voluntary and without consideration."
'3 Amer. & Eng. Ency. Law 839. on the part of the subcontractor to do un-
^ Cases in o Amer. & Eng. Ency. Law less required to do so to obtain the con-
838. tract price.— Ed.]
3 Corrigan v. Detsch, 61 Mo. 290 [1875]. ^ 3 ^mer. & Eng. Ency. Law 863.
4 Read o. Hitchins, 71 Me. 590 [1880]. « Stidham v. Sanford, 36 N. Y. Sup. Ct.
[However, it v/as not a very brilliant thing 341 118731,
*8e6 also Sees. 681, 697-703, infra.
62 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 69.
The principle is well illustrated in a case where the third party was a
member of a committee to solicit aid towards the erection of a foundry-
building, donated as an inducement for a foundry business to remove to
a Tillage where the third party resided. The third party had called upon
an architect to solicit aid, at the same time telling him the purpose
contemplated, and that whatever was done was to be a voluntary contri-
bution. Under these circumstances, and without any express promise by
the third party to pay him therefor, the architect prepared plans and speci-
fications for the proj^osed building. It was held that to charge appellant
for such plans an express promise to pay must be established, and such
promise must have been made before the service was rendered ; for if the
work was not done on the credit of the third party, but for some other per-
son, any subsequent express parol promise to pay for the same would be
void as being a promise to pay the debt of a third person and being without
consideration/
69. Changes or New Terms in a Contract. — If a contract cannot be cre-
ated without a valid consideration it would naturally follow that some con-
sideration would be required to modify its terms or add new terms to an
existing contract.' Therefore when certain work was being done according to
the contract and specifications, and the employer, under threats of stopping
the work, and without any further consideration, exacted and secured from
the contractor a guaranty concerning the work not embraced in the original
contract, it was held that such guaranty was not binding upon the con-
tractor, and that in an action brought by him for the contract price of the
work a failure of said guaranty could not be set up as a defense by the
owner."*
There is no doubt that at any time after a writen contract has been
entered into the parties may orally either vary it or abrogate it, if there is a
new consideration.*
Some tribunals have conceded that an executory parol contract may be
varied, or even dissolved, before breach by an agreement to that effect with-
out any new consideration, which involves the idea that if a person who
has entered into a contract declare that he will not fulfill it as it stands,
nor unless his demands are satisfied, and the other party assents, the new
agreement will supersede the old one.' * Thus it has been held that if a
contractor threatens to abandon his contract on account of pretended mis-
^ Dnnton v. Chamberlain, 1 Bradwell Flanders v. Fay, 40 Vt. 316; Burkham v,
361 [1878]. Martin, 54 Ala. 122; Maxfield v. Terry, 4
2 Titus V. Cairo & T. R Co., 37 N. J. Del. Ch. 618; Roberts v. Wilkinson, 34
Law 98. Mich. 129.
3 McCarty v. The Hampton Bldg. Ass'n, ^ Holmes v. Doane, 9 Cush. 135; Wilgas
61 la. 287 [1883]. v. Whitehead, 6 W. K of C. 537.
4Juilliard «. Chaffee, 93 N. Y. 529;
* TJiere are numerous decisions to the contrary , which are set forth in Sees. 181 and
559-564, infra.
§70.] LAW OF CONTRACTS, 63
representations of the company, or because unexpected difficulties have
been encountered, or because the work is too expensive, and the owner
agrees to pay an extra price, the promise is binding, though apparently
without consideration/ So it has been held that no new consideration was
necessary to sustain an agreement by the owner to oxtend the time for
completion of a building contract.'
An agreement without a consideration* is repugnant to the law of con-
tracts, and it may well be doubted if these cases as stated are good laV.'
If these cases were looked into it would be found that there were mutual
promises or mutual acts to be performed, or that the question of considera-
tion was not raised until the work was done and the contract executed.
There are many cases that decide that a consideration is required to sustain a
change in a contract, and to be safe, a consideration should always be
insisted upon.
If it is agreed between the owner and the contractor that the work shall be
performed in a manner different from that originally agreed upon it has been
argued that the undartaking of the contractor to do something different,
though only in detail, and the relinquishing by the other party of the right
to have it done in a particular manner, furnished consideration enough, and
that the court would not go into the question whether it gave an actual
advantage.* A contract that has not been executed may be rescinded by
mutual agreement, the parties exchanging promises not to enforce their
rights; ^ but a contract executed by the contractor, leaving only an obligation
to pay on the part of the owner, cannot be rescinded by mutual consent with-
out other consideration/ *
70. Consideration Good in Part. — When an offer is made for a consider-
ation named no promise arises until the consideration is fully performed.
If the consideration consists of several things they must all be performed.
If any part of the specified consideration is illegal the illegality will affect
the whole, and there will be no binding promise/ If, however, a part
only is void or voidable it is otherwise,® for it is impossible to apportion the
weight of each part of the consideration in inducing the promise. If, among
several things named as consideration, a good and sufficient consideration
can. be found it is the same as if that alone had been specified as a consider-
<^tion.* Where independent promises are in part lawful and in part unlaw-
' Hut V. Luinman, 29 Barb. 410: Os- "Foster v. Daber, 6 Exch. 851; Mora-
l)oi ne v. O'R ■illy, 42 N. J. Eq. 467 [1887]. wetz on Corp'us, § 371.
* Izard 1). Kimmel (Neb.), 41 K W. Rep. ^ Westmoreland v. Porter, 75 Ala. 453
1068 [1889]; Hill r. Smitb. 34 Vt. 535; [1883].
Rulge V. Gates (Wis.), 38 N. W. Rep. 181 ' Lantrdell's Summary of Contracts 1030 ;
[1888]. Pollock on Contracts (4th ed.) 321 : Ed-
^Webbe v. Romona O. S. Co., 58 111. wards Co. v. Jennings (Tex.), 35 S. W.
App. 222. Rep. 1053.
4 Pollock on Contracts 180. » Clements v. Marston, 52 IST. H. 31 [1873].
• Laugdell's Summary of Contracts 1030,
* See Sec. 66, supra.
64 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 70.
ful those which are lawful can be enforced, but if any part of an entire
consideration is unlawful all promises founded upon it are void.' If th&
contract is bad in part for being in violation of law, but good in part, and
the good part of the contract can be separated from the bad, that which is.
good can be enforced in law.'' The possible invalidity of a provision in
the contract for referees in case of differences rising was held not to invali-
date the contract as a whole.' When a contract is open to two construc-
tions, the one lawful and the other unlawful, the former must be adopted.*
In all contracts in writing and under seal signed by the parties bound
thereby, a valid consideration is implied/ Equity will not relieve a surety
from liability on an instrument under seal merely for want of considera-
tion when no consideration was contemplated by the parties.*
* Pollock on Contracts (4th. ed.) 321 ; followed in United States t. Central Pac. R.
Reed v. Brewer (Tex.), 37 S. W. Rep. Co., 118 U. S. 235 [1886].
418. ' Warren ■». Johnson (Kan.), 17 Pac. Rep.
2 Jackson v. Shawl, 29 Cal. 267 [1865] ; 592 [1888]; Erickson d. Brandt (Minn.). 55-
Erie R. Co. v. Union Loo. & Express Co., N. W. Rep. 62 ; Fuller n. Artman, 24 N.T .
85 K J. Law 240 [1871]. Sup. 13.
3 Union Pac. Ry. Co. v. Chicago, R. I. & • Meek v. FrantB (Pa. Sup.), 83 AtU
P. Ry. Co., 16 Sup. Ct. Rep. 1173. Rep. 418.
* Hobbs V. McLean, 117 U. S. 567 [1886J ;
CHAPTER III.
LAW OF CONTRACTS. ESSENTIAL ELEMENTS OF A CONTRACT.
THE «5UBJECT-MATTEB. THE ACT TO BE PERFORMED OR THIKG TO BE
ERECTED, FURNISHED, OR SUPPLIED.
71. Relation of the Subject-matter and the Consideration. — The act,
undertaking, or promise on the part of one party is the consideration for
the act, agreement, or obligation of the other party. In fact it cannot be
said that the undertaking of tlie second party is any less the consideration
of the contract than is the undertaking of the first party. They are
considerations one for the other, and what has been said of the legality or
validity of the consideration will be quite as true for the act or promise
given in return — i. <?., the act or subject-matter must be a lawful under-
taking and one not contrary to the policy of the law. Whatever may be
said of the acts or undertakings of one party will hold equally true for the
acts or undertakings of the other party. The consideration on both sides in
construction contracts is usually an act or a promise to perform certain acts.
The consideration on one side may be a material object, as a sum of money
or a cargo of lumber, or it may be a circumstance or a condition of detri-
ment. It may be an act or the refraining from doing some act. Whether
a material object or a condition, the contract obligation existing between two
parties is usually, if indeed not always, the result of an act on the part of
one or both parties. It is not the mere existence of the money or the lum-
ber that is the consideration of the contract, but the act of paying the-
money or the delivery of the materials is the re^l consideration of the-
contract. The loss of the ship, the burning of the house, or the death of
the person may mark the hour from which the company is liable for the
insurance, but the right to demand the insurance dates from the proof of
certain conditions which requires an act on the part of one of the parties.
The consideration may be either the doing of an act or the giving of a.,
promise.*
AS REGARDS THE ACT TO BE DONE OR UNDERTAKEN OR THE CONSIDERA-
TION FOR WHICH IT IS UNDERTAKEN.
72. There Must be a Lawful Subject-matter— The Promise Must be to
Perform a Lawful Act. — A legal contract requires that the obligations aa-
* 3 Amer. & Eng. Eucy. Law 831.
<66 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 73.
assumed shall be lawful acts or undertakings not only within the written
law of the land, but that they shall be in harmony with the law ana iu
keeping with the policy of the government and good society, and that their
execution shall be possible. The consideration on both sides can be neither
wicked nor prohibited by law.' It therefore follows that the consideration,
the act or undertaking, of either party must not be opposed to the constitu-
tion of the United States or of the State; it must not be contrary to law,
and the effect of the contract must not be to defraud or injure the gov-
ernment.
Among the latter agreements are those that promote smuggling, evade
the internal-revenue laws, assist in rebellion or riot, aid enemies of our
•country, effect fraud in elections, or interfere with legislation or the admin-
istration of justice by our courts. Contracts to build ships of war or to
manufacture arms or to furnish supplies in violation of the laws and
treaties of our country will not be recognized by our courts.
73. Contracts the Effect of Which is to Influence Public Officers. — A
contract must not tend to influence legislative bodies or public officers in the
discharge of their duties. A contract to pay a certain sum of money
annually for ten years in consideration of the owners offering their building
to the government for a post-office at a nominal rent and using their per-
sonal influence and proper persuasion to have the post-office located in that
building was held illegal and against public policy, and, the consideration
^being indivisible and partly illegal, the whole contract was declared void.*
If the owners wore not to have used their influence and persuasion with the
public officers it seems the contract would have been legal.'
If there be no evidence that a politician had influenced any legislators
•or public officers in his behalf, then the contract might be held valid and not
necessarily against public policy.* The government may enter into a lease of
a building for a nominal sum, the rent being made small to induce it to
locate the office in such building. Such a lease is not contrary to public
policy in the absence of anything to show that the building is not a con-
ip^enient and desirable one for the purpose."
An agreement by a public officer to accept a greater or less fee than is
prescribed by statute, or not to avail himself of a statutory mode of enforcing
the collection of his fees, is against public policy, as is also a contract to
delegate his official duty, or to pay a rival candidate half of the profits of an
office, or for a deputy to divide all his fees with his principal, such fees being
payable directly to such deputy,^ or for the principal to appoint a certain
person as deputy in case he is elected.'
* Pollock on Contracts 322. many cases cited.
« 9 Amer. & En<j. Eucy. Law 916 ; Elk- ^ Deyoe v. Woodwortli (N. Y. App.). 39
art Co. Lodge v. Crarv, 98 Ind. 288 [1884] N. E. Rep. 375; 24 N. Y. S. 373 affirmed;
" Feariiley t). De Manville (Colo. App.), 9 Amer & Eng. Ency. Law 915.
39 Pac. liep. 73. " e Conner v. Canter (Ind. App.), 44 N. B.
4Beal V. Polbemus, 34 N. W. Rep. 532, Rep. 656.
§ 74.] LAW OF CONTRACTS. 67
Contracts for public favor or personal influence with the government or
with public officials are against public policy. Such are contracts to pay
officers for their influence in procuring contracts for work, as to have a cer-
tain person's bid accepted; ^ or to procure sales, or to induce any one to do,
acts inconsistent with his duty.
Any agreement which contemplates the use of private iufluence to secure
legislation is void,'* but a contract to draft bills, explain them to members
of the legislature, and request their introduction is not.^ An agreement to
procure the passage of a bill declaring certain railroad lands forfeited to the
government, so that one party to the contract might be benefited as a lona
fide settler under the homestead laws, is void as against public policy.* Con-
tracts with legislators to secure franchises, enactments, and licenses for
public works, by would-be contractors or companies that want charters for
special works, are within the same class.
A mortgage given to secure the payment of compensation for procuring
the appointment or resignation of a public officer is void as against public
policy.^ Money paid under a contract for the sale of property which is
contrary to public policy, because of a promise by one of the parties to
resign a public office and use his influence to securce the other's appoint-
ment, cannot be recovered on refusal of the seller to perform.® An assign^
ment of, or a lien on, the unearned salary or fees of a public officer, given by
him, is void as against public policy.'
74. Contracts for the Perversion of the Courts. — A legal contract can-
not have for its object the perversion of our courts or the obstruction of
justice." An agreement to procure evidence in consideration of a park
of the sum recovered is against public policy;' and one to stifle a prose^
cution. or to withhold testimony therein is absolutely void, and no re-
covery can be had on a promissory note given in consideration of such an
agreement.^"
Agreements to pay money to a witness to keep out of court," or to
induce a public officer to violate his trust or neglect his duty, or to
do things inconsistent with his official duties," to gain particular official
^Davidson?). Seymour, 1 Bosw. (N. Y.) Rep. 343.
88; Halcomb v. Weaver, 136 Mass. 265; ■ "" State Nat. Bank v. Fink (Tex. Sup.). 24
«?z(?«e6Bermudez Asph. Pav. Co. -». Critcb- S. "W. Rep. 256; Williams v. Ford (Tex.
field, 6t>Ill. App. 221. Civ. App.), 27 S. W. Rep. 723
^Buriiey's Heirs ■». Ludeling(La.), 16 So. ^ Bierbauer -y. Wirtb, 5 Fed. Rep. 336-
Rep. 507. [1880].
^Cbesebrougb v. Conover (N. Y. App.), ^Lyon v Hussey (Sup.), 31 N. Y. Snpp.
35 K E. Rep. 633; 21 N. Y. S. 566 281; Kennedy v. Hodges (Ga.), 25 S. E.
affirmed. Rep. 493.
^Houlton i). Dunn (Minn.), 61 N. W. ^o Friend v. Miller (Kan.). 34 Pac. Rep.
Rep. 898; but spe contra Houlton v. Nicbol 397.
(Wis ), 67 N W. Rep. 715. " In re Brule (D. C), 71 Fed Rep. 943.
* Basket i). M-oss (N. C), 20 S. E. Rep. '2 Robinson v. Patterson (Sup. Ot. Micb.t,
733. July. 1888: Schlass v, Hewlett (Ala.). 1
•Edwards v, Randle (Ark.), 38 S. W. So. Rep. 263.
'68 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 75.
favor/ or to influence legislators,' and similar undertakings, are illegal con-
tracts, and will not be enforced by our courts.'
75. The Undertaking Must Not be Contrary to Federal or State Laws, or
in Disregard of Police Regulations or City Ordinances.— It is not necessary
ihat the parties should actually contract to do the acts specially prohibited,
,but it is sufficient if the tendency is to subvert the laws, or overthrow,
■defraud, or injure the government or its institutions. If the contract is
made for the purpose of using the subject-matter in a manner prohibited by
law there can be no recovery on the contract." Mere knowledge of the use
to which the things are to be put will prevent recovery for them if the act
prohibited amounts to a felony.' Knowledge alone, even if the act does not
amount to a felony, will preclude recovery in England." In short if the
agreement is to do anything to facilitate the doing of an unlawful act it is
invalid, and there can be no recovery. A case in trade is reported where a
quantity of candy and silverware was sold, to be put up in "prize candy
packages"; it was held that the transaction, having been for the purpose of
aiding in -a lottery, which was prohibited by the New York statutes, it
was void and that no recovery could be had upon the contract.''
76. The Contract Must Not be to Invade Property Rights, to Commit or
to Maintain a Nuisance, to Obstruct a Public Way or Stream, or to Commit a
Trespass. — Some cases of interest to engineers and contractors will best
demonstrate these points of contract law. Thus it is submitted that a
-contract to erect a bridge over, or a tunnel under, the Hudson River at New
York, entered into before the necessary franchise had been obtained from the
«tate and Federal governments would not be a binding obligation; or aeon-
tract to drive piles or build a pier out into the bay beyond the harbor-line; or
to do work that would necessarily obstruct a public street or waterway. * A
contract to build a railroad or canal through a state, territory, or reservation,
entered into before the corporation had obtained its franchise or authority
:ffrom the state to build, would not be a valid contract; certainly the con-
tractor could not be required to fulfill his contract until the necessary
license and permission had been obtained. Such cases come up not infre-
quently; such are contracts to construct waterworks or irrigation ditches,
canals or sewers when the appropriation or pollution of the water would be an
unlawful act, or to drive a tunnel under a government fortress, as ocourred
on the West Shore Railroad at West Point. The question has been asked
^ 3 Fed. Rep. 1; Hager «. CalHn. 18 Hun '2 Keener's Cases on Quasi- Con tracts
448 [1879]; Staunton v. Parker, 19 Hun 55 35, note.
|;iS791. ' Hull V. Ruffgles, 56 N. Y. 424; see also
2 2 Amer. & Bnrr Ency Law 36C. Arnot v. Coal Co.. 68N Y. 558; mid Lynch
'* See a ffood collection of cases in 9 Amer. v. Resenthal (Ind.), 42 N. E. Rep. J 103,
•& Ensr. Ency. Law 879-930. a contract for sale of lots to subsciibers to
*CManan v. Rryce, 3 B. & Aid. 179; Mc- be determined by lot, held toid.
Kimniel v. Robinson, 3 M. & W. 434. * Whitfield v. Zellnor, 2 Cushman (Miss.)
^Hanauer -y Doane, 12 Wall. 342; but 663, work enjoined as a nuisance.
see Fedder v. Odorn, 2 Heisk. 68.
f 76.] LAW OF CONTRACTS. 6d
as to whether a contractor after having built a structure upon, or driven a
canal through, Federal property, or diverted a stream, or appropriated the
waters of a pond, or constructed an outlet for a sewer, or directed a sewer
into an unpolluted stream, any of which acts is an unlawful act, and which
has been the consideration for his contract, could recover on such a contract
for what he has done. It has been held that a party could not avoid a con-
tract on the theory that the doing of extra work was malicious mischief,
because the extra work required the contractor to dig or excavate in a street
without proper license, which was an unlawful act/
A contract to build houses on a disused unconsecrated burial-ground,
necessitating the removal of many corpses, has been held illegal;'' and it has
been held that no recovery could be had under a contract to grade a street
for earth filled outside the street-line and included in the slopes, and which
had been deposited on private property, as it was an unlawful act without
the consent of the owner,^ but the fact that a part of the improvement was
on private property did not prevent the contractor from recovering for
work done on the street.* Recovery has been allowed a contractor who
built a bridge and some track without the railroad company's territory, the
contract for which was void, where it appeared that the company had pos-
session and enjoyed the benefit of the structures.^ The act of the city in
preventing the contractor from improving a street in which the city had no
right of way does not give the contractor a right to recover as for breach
of contract, as the contract was void.'
Instances are numerous in the engineering profession where contracts
have been taken to build structures or do work by processes that are pat-
ented, the execution of which could be stopped by an injunction and the
performance of which would be unlawful, but whether the contractor would
be excused and the contract declared illegal may well be doubted.' * Such
might be cases of patent processes or patent apparatus required, such aa
patent heating apparatus, patent pavements, etc. A contract to publish a
copyrighted book without permission of the author, or to act a play, or to
copy a picture without permission of the artist would be of the same
character.!
Contracts to erect structures the maintenance, ownership, and use of
which are contrary to law are not binding. Such are contracts in violation
of local ordinances and building regulations, as those fixing the thickness of
'Bernstein v. Downs (Cal.), 44 Pac. ' Cunningham v. Massena Springs R.
Rep. 557. Co. (Sup.), 18 N. Y. Supp. 600.
« Gibbons id Chalmers, 1 C. & E. 577 « Sang «. Duluth (Minn.), 59 N. W. Rep.
[1885]. 878 ; Becker «. Phila. (Pa.), 16 Atl. Rep.
* Davies v. E. Saginaw (Mich.), 32 N. W. 625 [1889].
Rep. 919 [1887]. "^ See cases in Dillon's Miinic. Corp'ns*
4 Johnson tj, Duer (Mo.), 21 S. W. Rep. (4th ed., 1890), § 468, § 467 note.
800.
*8ee Contracts Impossible, Sees. 669-680, ivfra. \ See Sees. 816-825, infra.
70 ENGINEERTNO AND ARCHITECTURAL JURISPRUDENCE. [§77.
walls/ It has been held that a carpenter and builder could not recover for
work he had performed upon a bowling-alley in the state of Ohio, the build-
ing being unlawful property.' For labor and materials furnished for the
erection of an awning which is forbidden by a city ordinance no recovery
was allowed, neither upon the express contract with the owner nor upon
an implied contract, as on a quantum meruit. The law will not assist those
who have transgressed its commands, but leaves the parties where they
have placed themselves.' *
When a statute prohibits every contribution of money to promote the
election of any person or ticket, except for expenses of printing and the
circulation of handbills and other papers previous to such election, an
an agreement to pay $1000 to one who had built a log cabin for campaign
meetings in consideration that he would keep it open for the accommoda-
tion of political meetings to further the success of certain candidates nomi-
nated for congress was held illegal and not enforceable.*
Contracts for the erection of a building in violation of a city's building-
regulations, such as pertain to safety of the structure and infringement
of others' rights and the protection of citizens, may be declared invalid.*"
It has been held that a contract to erect a proper and legal building is
avoided by an ordinance passed two days after the contract was made pro-
hibiting the erection of such a building." A contract to erect a building
prohibited by the statute will not become valid by reason of the subsequent
repeal of the statute/ A contract executed in consideration of a previous
illegal contract is also void.®
77. The act must not be to commit a crime or a misdemeanor, or to
injure others in the enjoyment of their rights.
78. The agreement must not be for the sale or supply of adulterated
goods, or of intoxicating liquors in violation of excise laws prohibiting
traffic in them.
79. The act must not require either party to violate the Sabbath laws
or to ignore the laws and regulations of society, f
80. The act must not be to effect something in contravention of the law
or public policy or in violation of judicial morals; to do what the law for-
bids or to neglect what the law requires.'
» Stevens t. Gourley, 7 C. B. N. S. 99. ^ Stevens 'o. Gourley, 7 C. B. N. S, 99;
'^ Spurgeon v. McElwain, 6 Ohio 442; Burger «. Koelsch (Sup.), 28 N. Y. Supp.
iee also 14 Amer. & Eng. Ency. Law 786. 460.
3 Briiikman v. Eisler, 16 N.Y. Supp. 154, « McMillin t). Walker, 21 N. B. R. 31.
and many cases cited ; and see another ' Banchor -». Mansel, 9 Amer. & Eng.
awning case, Simi» v. Brookfield, 34 N. Y. Ency. Law 881, and cases cited.
Supp. 695 ; and see Ellwood v. Mani (Com. ^ Gate v. Blair, 6 Coldw. 639 : Pierce t>.
PI), 16 Pa. Co. Ct. Rep. 474; and Harper Kibbee, 51 Vt. 559 ; King v. Winanto, 71
v. Jonesboro (Ga.), 22 S. E. Rep. 139 N. C. 469, also 73 N, C. 563.
4 Jackson v. Walker, 5 Hill (N. Y.) 127 » 9 Amer. & Eng. Ency. Law 880.
[1843].
* See Sec. Ql, infra. . \ See Sec. 59, supra.
§81.j LAW OF CONTRACTS. 71
81. The Undertaking must Not Have for Its Object the Creation of a Mon-
opoly.—Such acts are attempts by the officers of cities, railroads, and other
corporations to grant exclusive rights or franchises to individuals and other
companies, as "the exclusive right to sell water to a city,"' "the exclu-
sive right to maintain and construct a telegraph-line along a railroad."* A
contract by a railroad company granting to a hackman the exclusive right
to bring his hacks into its depot grounds has been held not against public
policy.^ But a contract by a town to give to one party an exclusive right
or franchise for many years to light its streets and its residences is a
monopoly, and cannot be enforced." The granting of exclusive privileges
to telegraph companies to run wires along the line of a railroad or to lay an
oil-line across a large tract of land is void as tending to create monopolies.*
A railroad company may not agree to refrain from applying to the legis-
lature for a land grant and to assist another railroad company in getting it.
Such a contract is void, even though it stipulates that the means employed
in securing the grant shall be reasonable and proper." A contract not to
sell water rights to any other person or persons under a penalty called liqui-
dated damages, and not to make any settlement or compromise with other
parties, is void as imposing a restraint upon compromises of litigation and
disputes.''
Certain cases may be recited to show how near the line one can walk
and yet keep within public policy. Thus it has been held that two railroad
companies whose lines are parallel may agree to extend their lines so as
not to interfere with one another, the agreement being made to prevent an
unprofitable war of construction.® A contract by a railroad company by
which it agrees to give all its ferry business at a certain point to one com-
pany and to employ none other has been held a good and valid contract.*
An agreement to refrain from forming a corporation for the construction
of waterworks and from carrying on or prosecuting such work so that
another may incorporate for that purpose and conduct the business without
competition is not void as against public policy.'" An agreement by a
vendor in consideration of the sale of a lot not to build a flat in the imme-
diate neighborhood is not against public policy as being in restraint of
trade."
^ Davenport v. Kleinschmidt (Mont.), 13 • Chippewa, etc., Ry. o. CbicjigD, etc.»
Pac. Rep. 249 [1887]. Ry.. 44 N. W. Rep. 17.
« Pac. Tele. Cable Co. -». W. Union Tele- "^ Ford v. Gregson (Mont.), 14 Pac. Rep.
graph Co., 50 Fed. Rep. 493. 659 [1887].
3 Br.)wn V. K Y. Cent., etc., R. Co., 27 « Ives v. Smith, 8 N. Y. Supp. 46.
K Y. Supp. 69. » Wiggins Ferry Co. v. C. & A. R. Co.,
4 Saginaw Gas & Light Co. v. Saginaw 73 Mo. 389 [1881].
(U. S. Cir. Ct.) (Mich.), 22 The Replr 579 '» Oakes v. Cattaraugus Water Co. (N.
[1886]; Gale v. Kalamazoo. 23 Mich. 344. Y.). 38 N. E. Rep. 461.
6 9 Amer. & Eng. Ency. Law 892; Union '^ Lewis v. Gallner (N. Y.), 29 N. E. Rep.
Trust Co. V. Atchison, etc., R. Co. (N. M.), 81, reversing 14 N. Y. Supp. 362.
43 Pac. Rep. 701.
72 ENGINEERING AND ARGHITEGTUBAL JURISPRUDENCE. [§ 82.
Contracts in general for total restraint of trade, or contracts for the pur-
pose of creating a monopoly, or compacts having for their object the eleva-
tion or depression of the market prices, or to raise or lower the prices of
goods and produce, or sales of stocks, grain, and produce on margins, or
option contracts whose effect is to corner the markets, are held to be against
public policy and void/
82. Contracts Not to Bid or Compete. — If the undertaking is to prevent
competition in trade at public sales or in bidding for public work it is
against public policy. A compact entered into by members of a trade-union
to establish and maintain uniform rates of charges and to prevent competi-
tion among its members is illegal, and one party cannot maintain an action
against another who has underbid him." A contract, or a note given by
reason of an agreement, between contractors who belong to an association of
masons and builders, the by-laws of which require the members to pay to the
association 6 per cent, on all contracts taken by them, and to submit all
bids for work first to the association, and which provide that the lowest bid-
der shall add 6 per cent, to his bid before it is submitted to the owner or
his architect, is contrary to public policy and void.^
Contracts by builders or bidders to refrain from bidding against each
other for public works or to share the profits with others not bidding at a
public sale, or any agreements which tend to destroy competition, which the
law requires before the contract is awarded, or to induce a sacrifice of the
property sold, are illegal and void.* However, an agreement to bid, the
object of it being fair, is not void.* It is a fraud upon the public for persons
to obligate themselves not to bid, or not to bid beyond a certain sum." An
agreement to pay certain commissions to a person who shall become a mock
subscriber and purchaser of house-lots, which the owner is to take back off
his hands if he does not wish to keep them, the object being to induce
others to purchase, is against public policy. ' * Contracts by companies who
have been competitors who agree not to compete with each other either as
railroads for traffic, but to divide their earnings; ^ or as gas companies, not
to compete in certain districts of a city, will not be enforced.' A railroad
pooling contract, the evident object of which is to stifle competition for the
purpose of raising rates, is void as contrary to public policy."
' Illegal Contracts, 9 Amer. & Eng. also McMullen v. Hoffman (C. C), 75 Fed.
Ency. Law 879. Rep. 547.
» Moore ij. Bennett (111.), 29 N. E. Rep. 888. ' McDonnell v. Rigney (Mich.), 66 KW.
3 Milwaukee Masons' & Builders' Ass'n Rep. 52; Atlas Nat. Bank v. Holm (C. C.
V. Niezerowski (Wis.), 70 N. W. Rep. 166. A.), 71 Fed. Rep. 489.
49 Amer. & Eng Ency. Law 898; People « Texas & R. Ry. Co. v. So. Pac. R. Co.
«. Stevens. 71 N. Y. 527; Durfee v. Moran, (La. ), 6 So. Rep. 888.
57 Mo. 374 [1874]. ^ Chicago G. L. Co. v. Peop'.e's G. L.
6 Wicker v. Hoppock, 6 Wall. 94 [1867]; Co. (111.), 13 K E. Rep. 169 [1887].
Flanders ®.Wood (Tex.), 18 S.W.Rep.572, 'o Chicago, M. & St. P. Ry. Co. v. Wa-
hetween competing architects. bash, St. L. & P. Ry. Co. (C. C. A ), 61
•Hunter v. Pfeifer, 108 Ind. 197; see Fed. Rep. 993.
* See Lowest Bidder, Chap. VL, Sec. 148, infra.
§83.] LAW OF CONTRACTS. 73
83. Contracts that Promote Gambling.' — It is against the policy of the
law to sustain gaming or gambling contracts, whether at games of chance
or on the stock-market; or even to enforce agreements to repay money bor-
rowed for the purpose of gambling.^ Anything which induces a man to risk
his money or property without any other hope of return than to get for
nothing any given amount from another is gambling and demoralizing to
the community. All gambling is immoral, and, wagering or gambling
agreements being in violation of the law and in the nature of a public
wrong, have no legal effect. Money lent for the express purpose of settling
losses on illegal stock-jobbing transactions to which the lender was no party,
cannot be recovered back. It being unlawful for one man to pay, it cannot
be lawful for another to furnish him with the means of paying. The mere
fact that a lender of money knew that it was to be used for gambling in oil
is not sufficient to defeat a recovery unless he confederated with the bor-
rower for its unlawful use." *
84. The Act Must Not be Inconsistent with the Duties and Obligations of
a Party Who has Undertaken It. — Such duties and obligations may be due to
the public, or they may be such as arise from fiduciary relations, as those of
an agent to his employer, or of an officer to his company, or of a trustee to his
beneficiary. Thus it has been repeatedly held that the officers of a railroad
company cannot agree to locate its depot at a particular point,^ or the route
of its road through a certain place.* If the contract tends to sacrifice the
interests of stockholders or of the public it is against public policy and
therefore not valid. ^ The agreement is not of itself void,* and will hold if
the company's and public interests have not suffered.''
An interesting case came before the courts in Oregon, where one H.
being director and president of a railroad company and owner of a control-
ling interest in the stock, agreed for a money consideration to cause the line
of railroad to be relocated over a longer and more expensive route; the
contract was held to be contrary to public policy. It was held that a rail-
road company was a sort of public corporation, and that its officers were
bound to be disinterested in the consideration of public questions.®
.85. A Fiduciary Can have No Personal Interest in His PrincipaPs Contract.
— Independent of the fact that a railroad, company is a §'w«5i-public cor-
'Stehbins?). Leowolf, 3Cush. 137 [1849]. « Railroad Co. v. Ralston, 41 Ohio St.
2 W.-mgh V. Beck (Pa.), 6 Atl. Rep. 923 573.
[1886]. ' Frev v. Ft. Worth & R. G. Rv. (Tex.),
3 Florida Cent. & P. R. Co. v. State 24 S. W. Rep. 950; Bunk v. Hendrie, 49
<Fla.), 18 So. Rep. 103; Northern Pac. R. Iowa 402 [1878]: Mills County «. B. & M.
Co. V. Territory (Wash), 13 Pac. Rep. R. Co., 47 Iowa 66 [1877].
604 [1887]. * « Holiday v. Petterson, 5 Oregon 177
4 Llndert). Carpenter, 62 111. 309 [1872]; [1874]; 1 Redfield on Rys. 577, § 140;
alHo 13 111. App. 568. Fullers. Dame, 18 Pick. 472; Pacific R.
6 Bestor v. Wathen, 60 111. 138 [1871]. Co. «. Seeley, 25 Mo. 212; Bestor v. Wat*
hen. 60 111. 138 [1871].
, * See Sec. 75, supra.
74 ENGINEERING AND ARGHITEGTURAL JURISPRUDENGE. [§ S5,
poration, the fiduciary relation of an agent, engineer, oflBcer, or director of a
corporation to his company and its stockholders would prevent him from
having any personal interest in a contract/ A contract by a freight-age lib
to share with a contractor in the profits of a contract, the only service of llio
freight-agent being to allow the contractor a low freight rate on materials
of construction, is void as against public policy.'* An agreement by tlio
bookkeeper of a corporation to disclose its financial condition to auotiier is
void, and it is immaterial that such other is a stockholder of the corpora-
tion.' An agreement between two real-estate agents representing ditferent
principals to divide commissions in case they effect a sale between their
respective principals is void as against public policy, and the fact that tho
sale was effected at the valuation that each principal had set on his pi-operty
with his agent will not give validity to the agreement.* A contract made
by a person on behalf of two parties and acting in the capacity of agent for
both is voidable. It must be ratified or adopted tp become binding. Such
a contract may be ratified by a municipal corporation. ^ An agreement by -
the superintendent and general manager of a mill company in consideration
of five thousand dollars to use his influence and authority to secure the re-
moval of the mill to another place and the extension of its logging-roads to
that place is void as against public policy." So where an architect and de-
fendant agreed to build houses for sale, the latter to advance the money and
the former to contribute his skill and time as superintendent, each to have
half of the profits after sale, it was held that the defendant could not charge
plaintiff with the land used for building purposes at a greater price than its
original cost, though it was bought with money furnished by him and the
title was taken in his name.^
However, a contract founded on a promise to disclose information as to a
place where a railroad company intended to locate it« depot is 'not void as
against public policy where there is nothing to show that the plaintiff ob-
tained his information by reason of any relation of trust or confidence that he
bore to the railroad company, or that it had any interest in the subject-
matter of the contract, or that it attempted to keep the location of the depot
a secret.^ *
86. A Man Cannot by Contract Forfeit Certain Eights and Privileges
the Protection of Which the Law Guarantees. — " The Declaration of Inde-
pendence holds the truth self-evident that all men were endowed by their
Creator with certain inalienable rights ; that among these are life, liberty, and
» Bestor v. Wathen, 60 111. 138. s Q\^y ^f Findlay v. Perfz (C. C. A.), (i6
2 Barclay v. Williams, 26 111. App. 213 Fed. Rep. 427.
[1887]. sLumw CI:.ik(Minn.\57N.W. Rpp.fi62.
3 Davenport «?. Hulme (Super.), 32 N. Y. ' Budd v. Sciiddt-r (N. J. Ch.), 26 Atl.
Supp. 803. Reo 904.
■ ^Ij&vy V. Spencer (Colo. Sup.), 33 Pac. « Green v. Brooks (Cal.). 22 Pno. Rep.
Rep. 415. 849 ; hut nee Wills v. Abbey, 27 Tex. 202.
* And see Sees. 42, supra, and 508-518,. infra.
%86.'] LAW OF CONTRACTS. 75
the pursuit of happiness "', and, being inalienable, no one can give them away
for or as a consideration ; and to these might have been added one's char-
acter, religion, citizenship, and many other things which cannot be for sale
or subjects of exchange/
Such an agreement would be against the policy of the law, and against
public policy. If the undertaking tends to injustice or oppression, restraint
of liberty, commerce, or natural or legal right ; if it tends to obstruct jus-
tice, or to violate the law, or is against good morals — it is against public
policy and cannot support a contract.' It does not matter that the parties
are innocent of any design to violate the law ; if the effect of their agree-
ments or acts is against the laws or public policy, then the contract must
fail.
It is contrary to public policy for a person to make agreements to forego
his inalienable natural rights. A contract l^y which a person agrees not to
demand damages or compensation for injuries that may arise from another's
acts or negligence is within this class. Such contracts are those of carriers
of freight and passengers, as railroad, express, and telegraph companies,
that seek to avoid or limit their responsibility for negligence or delay in
transporting or delivering goods or messages by notices, clauses, conditions,
or even by deeds. Such agreements and contracts have frequently been
declared inoperative and void.^ It may be doubted even if they may so
contract with persons carried gratuitously, i. e., with persons traveling on
free passes. It has frequently been held that they could not, though there
are cases to the effect that they can.* A railroad company was held liable
for causing the death of a passenger by the negligence of its employees not-
"Withstanding he was at the time riding upon a free pass upon which was a
stipulation signed by him releasing the company from all liability for
, injury to his person or property while using the pass.* A contract on a
telegraph-message blank that the company will not be liable for but ten
times the cost of sending the message has been held invalid so far as the
damage is the result of negligence on the part of the company or its
servants. ^
Parties cannot by private agreement in advance of a controversy oust
the courts of their proper jurisdiction. It is true that a matter in contro-
versy or a pending civil suit may be finally submitted to arbitration or to the
'9 Amer. & Ensr. Encv. Law 883. Jour. 404 A recent f*ase carried to the
29 Ainer. & Eig. Enoy. Law 880. co-irt of appeals in jSew York held not.
29 AntifM-. & Eng. Enoy. Law 913 : 26 Porter v. N. Y. L. E. & VV. R. Co., 129 N.
Anier. Law Rev'w 212 rif^921 ; 21 Amer. Y. 624, [Dec. 1891]; see also Rose v. Des
La Rev'w 506 ; L S. & M. 8. Rv Co v. Moines R., 39 Iowa 246, 20 Amer. Ry. Rep.
Spangler (Ohio), 2^ The Reptr. 734 [1886], 326; and many canes cited in note p. 338.
44 Oliio St. 471 : Porter v. N. Y. L. E. & ^^arr v. Telegraph Co. (Tenn.), 3 S. W.
W. R. Co.. 129 N. Y. 624 [18911. Rep. 496 [1887], 85 Tenn. 529.
^ See cases just cited, and s''e^^ Ayh.Jjfv^r
*8€e Engineers' and Architects' Employment, Sec. 864, infra.
76 ENOINEERINO AND ARCHITECTZTRAL JURISPRUDENCE. [§ 86*
decision of a single judge, or by omitting to exercise their rights the parties,
may waive them as they choose, but they cannot by an agreement in advance,,
when no matter of dispute or controversy has yet arisen, forfeit their rights,
to a proper adjudication in the appropriate tribunal established by law whea
a proper case may be presented.' It is a constitutional right, and
neither a statute by the state nor an agreement of the parties made in
advance under it can justify a denial of the right."^ *
It is true that parties may impose as a condition precedent to an applica-
tion to the courts that they shall first have settled the amount to be received
by an agreed mode of liquidation or adjustment, and this in many casea
provides a much more appropriate tribunal for the purpose than a jury.*
The principle involved in these cases does not close the access of the
parties to the courts of law, as the award of the arbiter is only enforceable:
there. On the same ground it is against public policy to sustain an agree-^
ment by an employee that an officer of the company employing him shall
be the sole judge of the damages to be assessed for breach of the company's,
rules, and that the officer's decision shall be final and conclusive of the
rights of the employee ; * but it has been held that a contract by which a.
railroad employee agreed, on becoming a member of the relief department
of the company, that the acceptance of relief from such department on being
injured should bar his right to sue the railroad company for the injury is
not one against public policy.^ It is not invalid in that it restricts the
liabilities of railroads for the negligence of their employees." Nor is it
void for want of mutuality nor for lack of consideration.'^ It is on this
same ground of public policy that agreements by contractors to abide the
decisions of civil engineers and architects as final and conclusive, without
recourse to courts of law or equity, have been declared not binding, illegal,,
and void. The courts have held that the government guarantees every man '
the protection of the courts and their assistance, and that no man can enter
into a contract that shall deny him this privilege and right.f
A contract of employment between a company using patented machines
and a mechanical engineer which requires that any improvements in the
machines made by such engineer shall ^belong to the company is not unrea-
sonable nor contrary to public policy.** %
» See Ins. Co. -p. Marse, 20 Wall. 44.5. » Chicaj^o. B, & Q. R. Co. v. Bell (Neb ),
" 5^e Atlanta & R Co.??. Monprhan, 49 Ga. 62 N. W. Rep. 814; Pittsburgh, etc, R.
266; Nate v. Hamilton Ins. Co., 6 Gray Co. u. Cox (Ohio Sup.). 45 N. E Rep. 641 ?
174; Hobbs i). Manhattan Ins. Co , 55 Me. Shaver v. Penna. Co. (C. C), 71 Fed.
421 ; Scott V. Averv, 5 H. of L. Cas. 811 ; Rep. 931.
Story Eq. Jur., §670. « Donald v. Chicago, B. & Q. Ry. Co.
3Monon. Nav. Co. v. Fenlon, 4 W. «fe S. (Iowa). 61 N. W. Rep. 971.
205; 7 Casey 306; 79 Pa. St. 480, citing 'Pittsburgh, etc., R. Co. v. Cox, supra,
engineering cashes to support them. « Hulse v. Bonsack Much. Co. (C. C. A.)^
4 White V. Middlesex R. Co., 135 Mass. 65 Fed. Rep. 864.
216 [1883].
* See Sees. 344-5 and 405-409. infra. \ See Sees. 339-345 and 406-412, infra,
X See Sees. 816-825, infra.
§ 87.] LAW OF CONTRACTS. 77
87. Immoral Contracts. — A contract for immoral or indecent purposes
will not be sustained ; if it is to effect an immoral object it will not be
enforced. An agreement to pay money for the use of a carriage or of a
house or of furniture which is to be used for immoral purposes will not be
enforced ; and. the same, it is submitted, might hold true if a contractor had
built a house or fitted up quarters knowing they were to be employed for
indecent or unlawful *purposes, or for any purpose that tends to induce im-
morality.' Such might be the erection of a still for illicit distillation, or
the fitting and furnishing of a barroom in a no-license state, or the erection
or furnishing of a house of prostitution or for gambling," or possibly of a
bucket-shop or even a stock exchange.^ * An owner who has parted with
the possession of his personal property under a contract which is against
good morals and void as against public policy, the law will not aid him to
recover the possession of such property, but will leave the parties in the situ-
ation in which they have placed themselves.*
All contracts having for their object the "making of matches" for
marriages, or the separation of man and wife, or to restrain the freedom
of marriage or the right of selection of a companion, or to prohibit mar-
riage, are against public policy, illegal, and void.' Therefore a contract
intended to facilitate the procuring of a divorce at the suit of either of the
parties thereto is void.' A contract to sell letters from persons who are dis-
eased to a person who advertises articles and instruments to cure them is
contrary to good morals and void.'' No recovery can be had for the expense
of printing an immoral publication.®
Illicit intercourse is not a consideration for a promise to marry, and a
promise to marry a woman if she will give herself up to the promisor is
tainted with immorality and is not a legal contract. Such a contract must
be distinguished from a promise to marry and the promisor afferward taking
advantage of the trust and confidence imposed in him.*
The defense of public policy proceeds not upon the idea of relief to the
defendant, but protection to the public, and it is immaterial that a defend-
ant was ignorant of the illegality.'" It is not therefore necessary to plead
public policy to prevent a recovery on a contract invalid as against public
policy."
»9 Amer. & Eng. Ency. Law 921; « Wilde t?. Wilde (Neb. ), 56 N. W. Rep
P aiCL' V. Brooks, L. R. 1 Exch. 213; 724.
Reed ?j Brewer (Tex.), 36 S. W. Rep. 99. 'Rice v. Williams, 32 Fed. Rep. 437
2 Contra Michael «. Bacon, 49 Mo. 476, [1887].
and cases cited. ^Poplett v. St.ockdale, 2 C. & P. 198.
^ Seg cases collected in 9 Amer. & Eu<r. ^ Hanks v. Waglee, 54 Cal. 51 [1879];
Ency. Law 922. Reed v. Brewer, supra, Boiirugueresi). Boul< n, 54 Cal. 146 [1880] ;
held that notes given for furniture for a Saxon v. Wood (Ind.), 30 N. E. R- p. 797,
hoiis'^ of prostitution were void. ^° Church v. Proctor (C. C. A.), 66 Fed
* Hiitchins v. Wt Idin , 114 Ind. 80 [1887]. Rep. 240.
6 9 Amer. & Eng. Ency. Law 918-921. ^^ Sheldon v. Pruessner (Kan.'^ 35 Pac,
Rep. 201.
* See Sec. 76, supra.
78 ENOINEEIilNQ AND ARCHITECTURAL JURISPRUDENCE. [§ 87.
When the immediate object of an agreement is unlawful the agreement
is void/ and a contract executed in consideration of a previous illegal one is
void."
A contract otherwise valid is not void in toto merely because in certain
independent particulars it is broader than, or goes beyond the scope of, the
law.'
1 Pollock on Contracts (4th ed.) 321. 628; Arnot «, Coal Co., 68 K Y. 558. A
'^Cate «. Blair, 6 Coldw. 639 : Piercer. case of making the price of coal, the
Kibbee, 51 Vt. 559 ; King v. Wiuanto, 71 plaintiff had assisted in facilitating the
N. C. 469, also 73 N. C. 563. llegal act. And see 2 Keener's Cases on
3 Ragsdale v. Nagle (Cal.), 39 Pac. Rep. Quasi-ContTa.cts 85.
CHAPTER IV.
LAW OF CONTRACTS. ESSENTIAL ELEMENTS OF A CONTRACT.
MUTUAL CONSENT OR MUTUAL ASSENT.
88. There Must be Mutual Understanding. — The fourth essential element
of a valid and binding contract is a mutual understanding between the par-
ties as to the essential terms of the agreement between the parties; there
must be privity, mutual understanding, and no mistake.^ Mutual consent must
always exist at the moment when the contract is made. An express refusal
to abide by an award, made at different times by the parties thereto and
without any meeting of their minds, is not a contract that will operate as a
discharge of the award.'*
89. Mutual Consent Must be Shown by Some Overt Act * — It is impossible
to enter into a person's thoughts or ascertain how fully he comprehends what
he is doing or what he intends to do, and mutual assent is not therefore in
general capable of direct proof; but proof of acts performed that indicate a
purpose or intention on the part of the contractor is sufficient proof of
consent on his part to the terms of his agreement. As Professor Langdell
has said in his Summary:' " Mental acts are not the materials out of which
promises are made; a physical act on the part of the promisor is indispen-
sable, and when the physical act has been done only a physical act can undo
it/' If one party has made an offer which has been duly accepted by the
other, or if one has made a delivery and the other appropriated the thing
delivered, proof of these facts is sufficient proof of the mutual consent of
the parties. If such acts cannot be proved, then the contract fails, for what-
ever may have been in the minds of the parties, or however mutual their
unexpressed wishes may have been, they will not suffice to create a contract
unless manifested by some overt act. The mental state in itself signifies
nothing; it requires manifestation.
If, on the other hand, it can be conclusively proven that mutual consent
is lacking, the performance of the acts will amount to nothing toward es-
1 Gill Manfg. Co. « Hurd, 18 Fed. Rep. ^ Hynes^. Wright, 62 Conn. 823 ; hut see
673 [1883] ; Pullman Palace Car Co. v. Tex. Sheffield Fur. Co. v. Hull Coal & Coke Co.
& Pac. R. Co , 11 Fed. Rep. 625 [1882] ; (Ala.), 14 So. Rep. 672.
Greve v. Ganger, 36 Wis. 369 ; Shields v. ^ Langdell's Summary of Law of Con-
Hickey, 26 Mo. App. 194 [1887]. tracts 1090.
* See Sec. 183, infra,
79
80 ENOINEERINO AND AEGHITEGTURAL JURISPRUDENCE. [§ 90.
tablishing a contract. An offer must be a physical and mental act com-
bined, the mental act being embodied in, represented by, and inseparable-
from the physical act. If the mental act becomes impossible, then the offer
comes to an end, as in death or insanity, either of which during the pen-
dency of an offer makes the contract impossible for want of mutuality.'
As an instance, suppose an engineer draws up two contracts for tha
approval of his company, both of which are signed and sealed, and the com-
pany elects to deliver one of the instruments, but by mistake delivers th&
other instead, then there is no contract.'' There must be a definite under-
standing between the parties as to all the elements of the contract.'
90. There Should be No Misunderstanding.— A material error as to the^
kind, quantity, quality (?), or price of the subject-matter may make the
agreement void, either because there was never any real consent of the par-
ties or because the things or state of things to which they consented does^
not exist or cannot be realized.* Therefore it was held no contract when a
telegraph-operator by mistake made an order for three rifles to read as an
order for fifty rifles.^
A mistake as to the person with whom the contract is made has been
held to invalidate it where it was shown that the contractee never intended
to contract with the person who assumed to be the contractor." A mistake
as to which of two things was the subject of the sale will render the obliga-
tion not binding. Thus in the description of an estate sold, if the descrip-
tion include a piece of land not intended to be included in the sale, then
there is no mutual understanding, and therefore no contract.^ Another
instance is afforded where materials were bought to arrive by a certain ship
Peerless, which the contractor supposed to be a vessel that sailed from a
distant port in October; but there were two ships named the Peerless, the
one meant by the seller sailing in December, and it was held that there was
no binding contract, because there was a mistake as to the subject of the
proposed sale.*
A contract will not be enforced when it appears to have been based on
the supposed existence of a certain fact which furnished the motive for
^LangdelTs Summary of Contracts, 1091. N. E. Rep. 10.
2 A contract is completed by delivery. ^Pollock on Contracts 433; Hopkins©.
There was no contract as to the one deliv- Hinkley, 61 Md. 584 ; Rogers «. Walsh, \%
ered. for there was no consent ; not as to Neb. 28 ; Gibsons. Pelbie, 37 Mich, 380;
the other contract, because there was no Lamar Milling & Elevator Co. v. Craddock
delivery to evidence the assent. Laii^dell's (Colo. App.), 87 Pac. Rep. 950.
Summary 170. [It miffht be a very diflScult ^ Henkle v. Pape, L. R. 6 Ex. 7.
matter of proof, however. — Ed.] ®Boulton v. Jones, 2 H. & N. 564: Bos-
A contract signed by both parties and ton Ice Co. v. Potter, 123 Mass. 28; but see
left with the enirineer or architect for their Benjamin on Sales 872.
joint benefit has been held a good delivery. ' Calverly v. Williams, 1 Yesey Jr. 210;
Coey V. Lehman: 79 111. 177 ; Blanchard -». Pollock on Contracts 430, 481, and cases
Blackstone. 102 Mass. 34^. cited.
2 Hubbard v. Thompson, 25 Fed. Rep. ^Raffles v. Wichelhaus, Langdell's Se-
188 [1885] ; Sibley v. Felton (Mass.), 31 lect Cases on Contracts 39.
§90.] LAW OF CONTRACTS. 81
entering into the agreement if it subsequently transpires that the assump-
tion on which the contract was based was erroneous/
An agreement by the owner of a patent for certain machines to furnish
to another "such a number of machines as he desires for his own use at
present or hereafter" was held void for want of mutuality.'
An error as to quality w'lW not suffice to make a transaction void unless it
is such that, according to the ordinary course of dealing and use of language,
the difference made by the absence of quality wrongly supposed to exist
amounts to a difference of kind, and furthermore the mistake must be com-
mon to both parties,^ or it may be a mistake on one side and fraud on the
other. As Mr. Dickson says in his notes to Pollock on Contracts : " The
law tolerates a good deal of lying in trade when it is merely in the nature
of puffing one^s own goods or deprecating those of another, provided the
thing bargained for reveals its own qualities and is open to the parties'
equal inspection/' * *
It has been held that executed contracts are obligatory without regard
to mutuality.^ The fact that it is left optional with one party whether he
will enforce his rights under the contract is not a ground for a defense of
want of mutuality by a party who has received the benefit; ^ but an agree-
ment which is void as against public policy does not give one party the right
to sue for damages for failure of the other party to perform his part, though
the first party has performed his part/
If a misunderstanding as to the price to be paid be proven no obligation
will be created. Thus when a watchman was employed at one dollar and
a half per day, and nights the same, and the employer understood him to
say and mean one dollar and one-half for every twenty-four hours, while
the watchman meant that amount for a day of twelve hours, it was held
that there was no contract, because the parties had never assented to the
same thing; that the watchman had never consented to work for one dollar
and a half per twenty-four hours nor the employer to pay three dollars, but
that, the watchman having performed the services, he was entitled to recover
what they were reasonably worth.®
In another case where shingles were bought at a price agreed upon, but
there was a dispute as to whether the shingles were by the "bunch'' or by
the thousand, it was held that unless both parties had understandingly
> United States v. Charles (C. C. A.), 74 ^Qvoyq v. Hodges, 5 P. F. Smith 504.
Fed. Rep 142. "Waterman v. Waterman, 27 Fed. Rep.
'^Columbia Wire Co. v. Freeman Wire 827.
Co. (C. C), 71 Fed. Rep. 302. '' Koiintz v. Flannagen (Sup.), 19 K Y.
3 Pollock on Contracts 436; American Supp 33.
cases cited in the Blackstone edition [1888]. ^ Turner v. Webster, 24 Kan, 38 [1880];
4 Poland V. Brownell, 131 Mass. 138; Tucker ?j. Preston (Vt.l, 11 Atl. Rep. 726
Armstronc: r. Huffstutler. 19 Ala 51; Hill [1888]; Vogel v. Pekoe (111. Sup.), 42 N.
V. Bush, 19 Ark. 522; Bell v. Henderson, E. Rep. 386.
6 How. (Miss.) 321.
*8ee Sec. 277a, infra.
82 ENGINEERING AND ARGHITECTUBAL JURISPRUDENCE. [§ 91.
agreed to one of these views as to quantity, then tliere was no special con-
tract as to price/ There is no contract unless the parties thereto assent,
and they must assent to the same thing in the same sense.'' *
An interesting case is reported in Maine, where a contractor proposed
to erect a schoolhouse for $4550, as per plans and specifications, and, being
the lowest bidder, the committee awarded the contract to him for $4525
and made it a matter of record, and required a bond for that amount for the
completion of the work, also forfeiture for delays, etc. During construction
trouble arose as to the erection of the building, and the court held that
there had been no contract between the parties/
In order to have a contract, the minds of the parties must meet and all
the terms of the contract must be agreed to. If any part of the contract
is not settled by the parties, or a mode agreed upon to settle it, there can
be no contract as to that part."
A memorandum reciting that a company has engaged an employee " for
the season 1890-1891 at a salary of $75 per week, subject to the regulations
and conditions of a contract to be substituted for the memorandum," is not
^ contract. There is no meeting of the minds of the parties as to the con-
ditions, restrictions, and regulations mentioned.^
91. To Avoid a Contract Mistake or Misunderstanding Must be Shown
Conclusively. — It may seem to the reader that such rules of law would
enable any man to escape the obligation he has assumed, but it is thought
not. The misunderstanding, as to the parties, thing, quantity, or price
of the property, material, or goods sold or contracted for, must be of such a
nature as a reasonably diligent man might fall into in order to relieve him
from the performance of his contract, and that he did misunderstand and
that there was no mutual consent he must satisfy twelve jurymen.'
If a proposal was misunderstood by an acceptor it is for him to show
that the misunderstanding was reasonable. A contractor cannot be allowed
to evade the performance of his contract by the simple statement that he
lias made a mistake or did not understand. If the owner or contractor at
the time he executes the contract conducts himself so as to lead a reason-
able man to believe that he understands and assents to its terms, and the
contractor or owner executes and performs his part under that belief,
^ Greene v. Bateman, 2 "Woodb. & M. Verzan v. McGresror, 23 Cal. 339, where
'239. the contractor made a mistake in estimat-
' 1 Parsons on Contracts 389; and see ing amount and diflaculty of work.
Flaherty ®. Miner, 123 N. Y. 382, in '^ Q\\\ Manfsr. Co. v. Hurd (Ohio), 18
^hich case it was claimed that l he clause Fed. Rep. 673 [1883]; see Lyndon Mill
for architect's certificate was inserted by Co. v. Lyndon Lit. Inst., 63 Vt. 581, where
Tnistake. A strong architectural case. It the owner supposed the contractor was
is submitted that this question of quantity furnishing the materials as a gratuity,
miffht frequently be determined by the * Walton -». Mather (City Ct.), 24 N. Y.
custom or usage of the place, Supp. 307.
» Howard ^."School, 78 Me. 230; and see " Pollock on Contracts 432.
.Hughes V. Clyde, 41 Ohio St. 339; also
* See Custom and Usage, Sees 604-628, infra.
§ 92.] LAW OF coif TRACTS. SB
neither party can assert that he did not understand or assent to its terms.*
Where the written draft of a contract is viewed as the consummation. of the
negotiations there is no contract nntil it is finally signed." The burden of
proof is on one affirming the completion of the contract before the written
draft thereof was signed to show that the signing was not necessary to its
completion.' A statement by plaintiff in his answer accepting the rate, and
saying that he would be down the first of the week and make out a con-
tract, does not prove that he did not suppose that his letter perfected the
contract.* *
A demand for a sleeping-car berth and a promise to furnish it constitute
a contract, the mutual obligations and promises being a valid considera-
tion.^ The same is true of a verbal application for cars of a railroad agent,
who replies "All right," and makes an order for the cars. Such facts
proven are sufficient to show that the minds of the parties met and that a
contract was made.*
The mistake in executing a contract need not always be mutual in order
to invalidate it.''
If there is a mutual mistake as to the existence of the subject-matter,
as in the sale of a farm and buildings the latter of which were burnt, the
vendor cannot recover the contract price.*
92. Manner of Coming to an Understanding— Offer and Acceptance Make
a Contract. — The manner and method of parties reaching this mutual
understanding are essentially various, but probably the most common way
of evidencing a mutual consent to the terms of an agreement is by offer
and acceptance; by one party making a statement of the terms by which
he will abide in the shape of an offer, and then, while he is in that state of
mind, i. e., before he has expressed himself to the contrary or made a revo-
cation of his offer, the other party accepting his offer unconditionally, in the
same terms as made. Then is there a meeting of the minds, and from the
moment of that acceptance there is a binding contract. Such an agree-
ment is usually introduced by some questions as to whether a thing is for
sale or to be performed; or the disposition to contract may be evidenced by
a notice or advertisement that a certain sale is to take place or a thing is to
be disposed of or that certain work is to. be performed, inviting offers, pro-
' Phillip tj. Gallant, 62 N. Y. 256. « Pittsburgh, etc., Ry. Co. tJ. Racer
2 Steamship Co. v. Swift, 29 Atl. Rep. (Ind.), 38 N. E. Rep. 186.
1063, 86 Me. 248; hut s<5e Sanders «. Potts- ■» Foster «. Mackiunon, L. R. 4 C. P.
litzerBros. F. Co. (N. Y. App.), 39 N. E. 704, 711; Pitcher v. Hennessy, 48 N. Y.
Rep. 75. 415.
» Mississippi & Dominion Steamship Co. » "Wells t. Caiman. 107 Mass. 514 [1871 J,
'0. Swift, 86 Me. 248. cases ciUd But see Harvard Law Pro-
4 Lawrence v. Milwaukee, L. S. & W. R. f essor's doctrine in Harvard Law Review,
Co. (Wis.), 54 N. W. Rep. 797. See Sec. and an article on the effect of destruction
797. . of buildings on contract for sale of the:
« Pullman P. C. Co. v. Booth (Tex.), 28 property, 12 Central Law Journal 77, by
S. W. Rep. 719. E. A. Marshall.
* See Sec. 797, infra.
84 ENGINEERING AND AKCHITEGTURAL JURISPRUDENCE. [§ 93.
posals, or tenders. This preliminary is then followed by a certain amount
of fencing and bantering as to who shall first commit himself to the terms
of an agreement. If it is a horse to sell, the seller will want the purchaser
to make him an offer. He wants the highest price he can get for his horse,
and if he makes an offer it may be accepted, which completes the contract,
and he may have named a figure lower than he could have obtained had he
hQQn. a little more prudent. If the seller gets the buyer to make him an
offer, it is then in his hands to close the bargain and make it a sale or to
reject it. If the offer be accepted before the buyer revokes his offer, then
the contract is completed, and the would-be purchaser is bound by the
agreement.
This desire to be noncommittal, or to keep the privilege of closing the
contract, has given rise to auction sales and of letting work by advertising
for bids, proposals, or tenders, by which means the owner or proprietor
retains the right to determine the contract, and contracts are entered into
in a manner more dignified and businesslike than those attending every-day
bargaining.
The subject of offer and acceptance presents many nice questions as to
toliat is an offer, what constitutes an acceptance, at what moment the
acceptance takes effect and the offer becomes irrevocable, and what effects
a revocation of an offer.
93. What Is an Offer ? — An offer is a proposal to make a promise, and
in law it is not an offer until it comes to the knowledge of the person to
whom it is made. The offer must be made in the form of a proposal to
become binding upon acceptance. An offer in the form of a question, as,
" Will you or would you take or accept $10 a thousand ?" is not an offer at
all. The offer must be in such terms that if accepted both parties shall be
bound, that the obligations may be mutual. Had the would-be purchaser
said, " I will give you $10 a thousand,^' and the seller signified his assent
by accepting the offer or by delivering the materials, that would have made
a valid contract.
An offer has been called a conditional promise which may be revoked
at any time before it is accepted. It is not a promise, for it is revocable,
while a promise is not; but if it is accepted in due course of time, i.e.,
within a reasonable time, and in the precise terms that it was made, it then
becomes a promise, and the offer and acceptance becomes a promise for a
promise, which constitutes a contract.
In bilateral contracts where the offer and consideration are mutual
promises, the offer becomes a promise only upon the acceptance and per-
formance of the consideration, L e., the giving of a promise in return for the
promise offered. It therefore follows in a bilateral contract that if one
party is bound both are bound, and both must have become bound at the
same time. In a unilateral contract where the offer is made in considera-
tion of an act or material thing, the offer becomes a promise "in consequence
§ 94.1 LAW OF CONTBACTS, 85
•of what the contractor does or gives or suffers/' while in a bilateral contract
the offer becomes a binding promise " in consequence of what the contractor
says/' promises. Therefore the acceptance in a bilateral contract must
amount to a promise or the adoption of the terms imposed in the offer as
the consideration for the obligation assumed by the offerer. The adoption
of the terms and the promise by the contractor and the continuance of the
offer and the counterpromise by the one making the offer are implied by
the law. The law implies the making of the counter offer in the terms of
the original offer when the acceptance is made, and also imposes upon the
offerer the presumption that he has remained in that state of mind so long
as his offer continues, and that he will accept the counter offer in the same
terms of his own offer.
In treating the subject of offer and acceptance it seems essential to dis-
tinguish between these two classes of contracts: those that are one-sided —
unilateral, and those in which both sides are bound to perform, or bilateral
contracts.
94. What Constitutes an Acceptance?— The acceptance differs from the
making of an offer in that it is not always necessary to communicate it to
the person making the offer. The acceptance of an offer may be expressed
by words or signs, as by the acts of the parties; for example, the delivery
of the materials or goods, or by accepting and using them, or by any overt
act that indicates in the ordinary course of trade or business an acceptance
of the terms offered. For all practical purposes it may be said that the
offer is accepted when the person to whom the offer has been made has
performed the conditions, i. e., the consideration stipulated in the offer.
The entering of an order on the books of a firm may constitute the accept-
ance and create a contract.^
In a public offer of a reward for the apprehension and conviction of the
perpetrators of an act, the offer is accepted by the discovery and arrest of
the culprit, unless, indeed, the act was done in ignorance of the reward
having been offered. If such is the case it is no contract, because the offer
had never been communicated to the apprehender. If an offer be made in
consideration of the performance of certain acts the offer does not become
a promise until the performance of the consideration is completed, and up
to that moment the offer may be revoked or destroyed by the death of the
one making the offer, and the offeree (contractor) be deprived of any pay
for what he had done. Thus an offer in the terms, " If you build me a
house according to these plans and specifications, on its completion I will
pay you $10,000," would, it seems, allow the owner to back out and revoke
his offer at any time before the house was finished, and leave the contractor
without any remedy for his work and materials under the terms of their
> Camden Iron Wks. v. Fox (N. J. C. C), 34 Fed. Rep. 200 [1887].
86 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 95.
would-be agreement.' This might cause great hardship and gross injustice
on the contractor; but if it were held that the offer became a promise when
the contractor began the performance of the consideration, it would be con^
trary to the manifest intention of the parties as shown by the terms of their
agreement; and it would impose hardships upon the offerer (owner) when
the contractor, as he might at any stage of the work, refuse to proceec*
further in performing the consideration of the offer. If the contracto**
should die, the offerer (owner) would then be without remedy. These
troubles and hardships may be averted by making a binding contract before
the work or performance begins, by giving an offer of a promise to pay, for
a promise to perform, i. e., by an exchange of mutual promises. If the
parties neglect this precaution, any hardships they may suffer should b&
charged to themselves.
95. Contracts Made by Mail or Telegraph. — It is the acceptance of an
offer that completes a simple contract, and it is the delivery of the instru-
ment that makes a deed. The offer is supposed to continue till the time of
its acceptance, for the offer and acceptance must exist at the same time, th&
moment when the contract is created. Thus when an offer is made by
letter or by telegram, the offer is continued during the time that the letter
or message is travelling, unless it is recalled or revoked, which revocation
must be communicated to the person to whom the offer was made or sent.
It is frequently and popularly stated that the mailing of a letter of
acceptance completes the contract, and it is frequently held by courts that
an offer is accepted from the time the answer is deposited in the post-office.*
It has been held too that a telegraph message containing an acceptance of
an offer delivered on Saturday to the telegraph company, and required
to be delivered on Sunday to the offerer, is wholly completed on Saturday,.
and not void because of Sunday laws.' It is pretty well settled in thia
country and in England that a contract is completed at the moment tho
letter of acceptance is mailed, or the message of acceptance delivered to the
telegraph company.*
' la such cases the law imph'es a con- 864-6. The work must have been per-
tract on the part of the owner to pay the formed with the owner's knowledge, con-
reasonable value of the contractor's ser- sent, privity, or by his request. It must
vices and materials. If the owner request not bave been done officiously, or no re-
a contractor or mechanic to perform cer- covery can be had, however meritorious
tain work or to furnish materials, or if, or beneficial it may be to ttie owner,
without any request, the owner stands by ^ jjunt v. Highman (la.), 80 N. W. Rep.
and allows the contractor to do work or 769 [18861.
furnish materials, acting in good faith, ' Western Union Telegraph Co. v. Way
and the owner takes possession of the (Ala.), 4 So. Rep. 844 [1887J.
materials and work and enjoys the benefit ^Trevor v. Wood (N. Y.), 16 Am. Law
thereof, the law will imply a contract on Reg. 215 [1868]; Terri'T v. Storer. 19 N.
his part to pay for such work and ma- W. Rep. 288 [1884]; Adams v. Lindaey,.
terials, Thomas v. Walnut Land, etc., 1 B. & A. 681 [1818J; Dunlop r. Higgins^
Co., 43 Mo. App. 653; Henderson B'dge. 1 H. of L. Cas. 381 [1848]; Thomson t.
Co. V. McGrath, 134 U. S 260; Richard v. James, Langdell's Cases on Contracts 125;
Stanton. 16 Wend. (N. Y.) 25; numerous Langdell's Summary of Contracts 993.
cases died, 29 Amer. & Eng. Ency. Law
§ 96.] LAW OF CONTRACTS. ' 87
The soundne&s of this rule has been questioned by good authority, who
argue that the acceptance must be communicated to the original offerer to
complete the contract, and this seems to be the Massachusetts rule.* The
latter rule seems to be sustained by the decisions to the effect that if a letter
or message of revocation is received by the offerer before or at the same
time he receives the letter of acceptance the revocation will render the
acceptance inoperative, even though the letter was mailed before the revo-
cation was sent. If the letter of acceptance be followed by another letter,
not revoking but modifying the acceptance, and the two are delivered at
the same moment, the later letter will take effect, no matter which letter
happens to be opened first.'' The cases cited would seem to hold that a
contract is not consummated at the moment the letter or message of accept-
ance is sent if the contractor can get his revocation to the offerer before or
by the time the acceptance is delivered.
Proof that a letter was duly stamped and addressed and mailed is prima
facie evidence that the person to whom it was sent received it " if it appears
that he then resided in the town to which the letter was addressed,* and the
delivery of a letter to a mail-carrier is equivalent to depositing it in the post-
office.'
96. Acceptance Must be Unconditional and in the Same Terms as the
Offer. — The acceptance must be absolute, positive, and unconditional. An
offer can be accepted only in the terms in which it is made, and if the
acceptance modifies the offer in any particular it is not an acceptance that
will create a contract, but is a counter-offer. Therefore where a quantity
of tin was offered at a certain price, and the reply was: " We accept your
offer if full-weight plates," it was held that the acceptance was conditional
and did not constitute a contract.* A letter reading, " I am prepared to
make the arrangements with you on the terms you name," in answer to a
letter of proposal, does not constitute an unconditional acceptance.'
If the terms of the offer are not restated in the acceptance, the parties
will be bound by the terms of the offer. Thus where a railroad offered to
carry logs at a certain rate, the shipper to chain the logs if necessary for
safety, which rate was accepted, it was held that by accepting the rate
without qualification the shipper accepted all the conditions specified by the
railroad company.®
An offer must be accepted just as it was made, and without modification
or qualification. A qualified acceptance of an offer, i. e., an acceptance in
terms that differ from those in which the offer was made, becomes a new
' Langdell's Summary of Contracts 993. « Pearce v. Langfitt, 101 Pa. 507 [1888].
'^Langdell's Summary of Contracts 996. "Kirwin v. Byrne (Com. PI.), 29 N. Y.
3 McFarland v. U. S. Mut. Accdt. Assn. Supp. 287; 27 N. Y. Supp. 143, affirmed.
(Mo. Sup.), 27 8. W. Rep. 436; Young v. '' Havens v. American Fire Ins. Co. (lud.
Clapp (111. Sup ). 35 N. E. Rep. 372. Apr..), 39 N". E. Rep. 40.
* Goodwin ?;. Provident Sav. Life Assur. ^Lawrence v. Milwaukee, etc., R. Co.
Soc. (Iowa), 66 N. W. Rep. 157. (WU.), 54 N. W. Rep. 797.
88 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 97
offer, which the original offerer may accept and thus complete the contract.
The acceptance must conform to the conditions expressed or implied in the
offer in respect to time, place, manner, and method in which it is given
or made.
The acceptance must be made or mailed within the time named in the
offer, and if no time be named, within a reasonable time, which latter will
depend upon the circumstances and is a question of fact for the jury/
If the offer requires the acceptance to be sent to a particular place, a letter
of acceptance sent to another place will not create a contract." An offer
containing a request to answer by telegraph *'yes '' or " no," and stating that
unless the answer is received by a certain day " shall conclude no," the
acceptance must be received by telegram on or before the date named."
If the offer is neither accepted nor rejected, but a new offer made in
turn, it amounts to a constructive rejection of the original offer.* If the
first offer is afterwards accepted, it does not create a contract, but is only a
new counter-offer which may be accepted or rejected by the original offerer."
97. What Effects a Revocation of an Offer. — An offer must be communi-
cated to the offeree, and it can be revoked only in the same manner. It
may be withdrawn at any time before it is accepted, but the withdrawal
must be brought to the knowledge of the party to whom it was made.'
It is not to be supposed that the offeree can leave town or secrete
himself and thus avoid a revocation of an offer, for a letter withdrawing the
offer, properly directed, with a return notice thereon, and mailed in time to
reach the person to whom the offer was made before his letter of acceptance
was mailed, will be held to have been received in the absence of strong proof
to the contrary.''
In the case of an offer the offerer holds control of it and may call it back
or revoke it, but once accepted the promise is made and the offerer has parted
with his control of the offer and it is irrevocable. It can then be rescinded
only by the mutual consent and agreement of both parties, i. e., by another
contract that they will not enforce their rights.^
A mere change of mind on the part of the offerer will not destroy an
offer. It requires some physical act on his part to undo the making of the
offer, and the physical act must be brought to the knowledge of the person to
whom the offer was made.* An offer to sell materials is not revoked by sell-
' Furrier v. Storer, 19 N. W, Rep. 288 conditions silence or a failure to reply
[1884]. will amount to an acceptance of an offer,
•■' Eliason «. Hensbaw, 4 Curtis 382 [1819]. see 27 Am. Law. Reg. N. S. 260 [1888];
•' Lewi«? V. Browninir, 130 Mass. 173 Tyler ??. Tuatlin Acad, etc., 26 Am, Law.
[1881]; Home v. Niver (Mass.), 46 N. E. Beg. 339 [1887].
Rep. 393. « Lanffdeirs Summary 1090; Sherwin v.
* Hyde v. Wrench, 3 Beavan 334. Nat. C. R. Co. (Colo. App.), 38 Pac. Rep.
» Sheffield C. Co. v. Sheffield & R. Ry. 392.
Co.. 3 Ry. & C. Cas. 121; W. & H. M. 'Sherwin v. Nat. C. R. Co., supra.
Ooulding V. Hammond (C. C. App.), 54 « Foster ij. Dabber, 6 Ex. Ch. 851; Mora-
Fed. Rep. 639. When and under what wetz on Corporations, § 871.
* See Mutuality, Sec. 89, supi'a.
§ 97.] LAW OF CONTRACTS. , 89
ing them to some one else. * The offer continues and may be accepted at any-
time before it is revoked and its revocation is brought to the knowledge of
the offeree. The offeree and the purchaser of the materials cannot both
acquire title to the materials, but as against the seller they can both
acquire the right to the goods, together with the alternative right to dam-
ages, which is all that a contract secures to the contractor in any case.' In
the case of a specific chattel w^here the title passes immediately upon the
acceptance of the offer doubtless the person who first completes his contract
with the seller will get title to the goods, and may retain possession of
them; but when the offer is to sell real property or unspecified personal
property it may be doubted whether a subsequent sale of the property,
whether executed or executory, would have any effect upon the contract
created by accepting the offer."
It is often held that a definite proposal to do work according to plans
and specifications plus an unqualified acceptance by a city together consti-
tute a contract, and the plans and specifications become a part of it." But
there are other decisions to the effect that the acceptance of a legally made
bid for a proposed building does not in itself constitute a contract, but that
the bidder is entitled to a contract in accordance with the terms of his
proposal.* *
The distinction is a nice one, to say the least, and it is doubtful if it is ,
worth making, as the contractor's rights and claims are substantially the
same in either case. If no new terms are contemplated and the acceptance
is unqualified, there is no doubt a binding contract. If from the circum-
stances there is an evident intention to enter into an agreement, and the
preparation of the written contract was postponed as a matter of conven-
ience and for the purpose of expressing in more formal language the agree-
ment already arrived at, the contract will be considered as completed when
accepted, and must be performed according to the terms of the proposal.^ An
intimation in the written acceptance of a proposal that a contract will be
afterwards prepared, does not prevent the contract from taking effect.f
Care should be taken not to accept bids absolutely, but only on condition
that the builder sign the contract and specifications in their prescribed
forms, finding securities and executing the required bonds, etc- If the
acceptance be made "subject to the execution of a contract to be pre-
pared," or "subject to the preparation and approval of a formal contract,"*
or " subject to the conditions and regulations of a contract to be substituted
for this memorandum," the contract will not take effect until it has been
' Query: if tlie offeree had been apprised 800 [1888].
of the sale by the purchaser would it re- ^Hughes©. Clyde, 41 Ohio St. 339.
voke the offer. ^ Lewis v. Brass, L. R." 3 Q. B. D. 667;
■■'Lani^deirs Summary of Contracts 1091. Lawrence «. M. L. S. & W. R. Co., 54 N.
3 Denton v. City of A., 34 Kan. 438 W. Rep. 797.
11885]; Wiles v. Hoss (Ind.), 16 N. E. Rep. « Winn v. Bull, L. R. 7 Ch. Div. 29.
* /See Lowest Bidder, Sees. 182-3, infra. \ See Sec. 797, infra.
90 ENGINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 97.
formally executed.* In each case the eyident intention of" the parties will
hold in determining whether the contract was completed, or whether it was
intended to complete it on some later occasion.
An offer which is to continue or remain open for a time named is only
an expression of the intention of the parties, and fixes the length of time it
shall continue, provided it be not revoked in the meantime. To make such
a stipulation binding it must be supported by a consideration or be expressed
in a sealed instrument. Even then the offer may be revoked, which act on
the part of the offerer would give to the other party a right to damages for
the breach of his contract to keep the offer open. A court would not enforce
the execution or completion of the contract.'
If a dealer agrees with a contractor in consideration of $1 that the
contractor shall have the refusal of certain materials for one month for
$5000, the law supposes the dealer to offer the materials to the contractor
for $5000 and to stipulate that the offer shall continue for one month. If
the contractor revoke the offer, then he becomes liable for the damages the
contractor suffers in consequence, which would probably be the difference
between the price agreed upon and the price at which the contractor could
have bought.^ *
1 Walter v. Walther (City Ct.), 24 K Y. ^ Langdell's Summary of Contracts, 1089.
Supp. 307; but see Emdem's Law of Build- ^ Langdells Summary of Contracts, 1090.
ing 58.
*Se6 Lowest Bidder, Sees. 132-300, especially Sec. 184, infra.
CHAPTER V.
LAW OF CONTRACT^ GENERAL STATUTES LIMITING THE LAW
OF CONTRACTS.
STATUTE OF FEAUDS.
98. Proof of Terms of Contracts. — From what has preceded the reader has
no doubt often wondered how certain things were to be proved. The exist-
ance of certain facts and the proof of them are two quite diiferent things.
The facts attending every contract must be viewed in the light shed by the
evidence offered as seen by the jury. The facts ascertained, it is the
province of the court to determine what laws are applicable and what rights
belong to the parties. The most inexperienced will appreciate how difficult
it must be to prove the terms of contracts by the parol evidence of the
parties or by that of witnesses. The fallibility of men's memories and the
frequent change of residence increase the difficulties as the time increases.
To prevent frauds and perjuries statute laws have been passed which
require that important contracts be attended by certain ceremonies and
overt acts by which they may be proved in courts, and on account of the
loss of evidence after the lapse of time statutes have been passed limiting
the liability of parties to certain periods or lengths of time. That the public
may have notice of certain contracts and obligations, especially those per-
taining to transfers of land and to important construction work some states
require that they shall be made the subject of public record. In some
states it is required that all contracts and specifications for construction of
buildings and works shall be recorded with the registry clerk of the district.
99. Statute of Frauds. — In nearly all the states, in Canada, and England
there are statutes requiring certain contracts to be in writing which are
known as the Statute of Frauds. The statute arose from the necessity of
having contracts in writing to prevent frauds and perjuries in proving the
the contract ; hence its name. These statutes usually provide that contracts
in which the consideration is more than £10 (or 140 or |50) cannot be
enforced in courts of law if they are not in writing, or there has not been
a part payment or a part delivery; and contracts for an interest inlands,
or that cannot be performed within one year, or to pay the debt of another,
are voidable if not in writing. The reasons and circumstances requiWng
the passage of such a statute law exist in construction contracts, and every
prudent man will require a written contract for construction work.
When the statute provides that certain contracts should be in writing, it
91
92* ENOINEEIUNG AND ABGHITEGTURAL JURISPRUDENCE. [§ 100.
is imperative that they should be so made. If such a contract is not in
writing it can furnish no ground of action or basis of defense to either party^
but they must stand as though no express contract had been made. Tho
person rendering services may usually recover upon a quantum meruit, "^ but
not upon the express contract.' If a contract is required to be in writing,
all material variations of such contract must be in writing.^
The general requirements of the different statutes are the same for tlie
different states^ but there are slight differences which it is impossible to
treat here. The advice of a local attorney should be sought for the inter-
pretation and application of the statute of the different states, however,
some general statements may be made and cases be given which will illustrate
the working of the statutes.
100. Statute of Frauds.— Contracts for the Sale of Goods, Materials,
and Merchandise. — The statute as enacted in nearly all the states of the
Union has a section very similar to the following •. " No contract for the
sale of goods, wares, and merchandise for the price of [$30 in New Jersey
to $300 in Utah] or more, shall be good or valid unless the purchaser
accepts and receives part of the goods so sold or gives something in earnest
to bind the bargain or in part payment ; or unless some note or memo-
randum in writing of the bargain is made and signed by the party to be
charged thereby, or by some person thereunto by him lawfully authorized.^'
This section of the statute has been held to govern all forms of selling
goods, as at auction, and to extend to every manner of private sale.* It
applies to contracts for exchange, barter, and to executory as well as exe-
cuted sales ; ^ but a contract to give a chattel mortgage or a contract to
become a partner in the sale has been held not within the statute."
101. Contract for Goods to be Manufactured. — If the subject-matter of
goods contracted for or sold has no existence and is to be manufactured,
then the law varies in different states. Some hold that such a contract is
within the statute, and other states hold it is merely a contract for work
and labor. The latter doctrine is often called the New York rule ; but there
is a tendency to get away from it, even in the State of New York. If a
contract be for the sale of an article which requires the personal skill or
attention of the seller, it is a contract for work and labor ; the test fre-
quently applied being whether the seller is himself to manufacture them
or to procure some particular person, or whether a delivery of goods by any
one will satisfy the contract. If the latter, then it is a contract for the sale of
goods. Other cases make the test one of design and purpose, holding tliut
if the article manufactured is to be of special or peculiar design and not
' Salh V. Campbell rWis.), 27 N W. Hep. 3 Malone «. Philarlelphia 147 Pa. St. 41fi.
45 ; Cohen x. Stene (Wis.). 21 K W. Rep. ^D^yis -y. Robertson, 1 Mill. 71 ; Davis
514. V. Ro'vell. 2Piok. 64.
'^ LnDham to. Osborne (Nev.), 18 Pac. Rep. ^8 Amev. «% Eiiir. Enoy. Liw 704.
881 [1888]. • eSAmer. & Eiig. Ency. Law 705.
[§ 102. LAW OF C0NTBAGT8. 93
suitable for general trade, then it is not within the statute.* Therefore a
contract to furnish a monument for a certain amount, to be erected by a
state on a battlefield, was held not a contract for sale of goods, within the
statute of frauds, though the contractors were not bound to bestow their
personal skill and labor thereon.'' An agreement to take down a building
and reerect it on another lot was held not a sale of goods, but an agreement
for labor and to improve real estate.' A verbal contract to furnish ma-
terial, and, after performing labor thereon, to attach it to the realty, as a
part of a building in the course of construction, is not a sale of goods or
chattels, and is not within the statute.* *
There is a safe road to travel in all such cases, and that is the surest
though it be the longest. Adopt a steadfast rule of committing the terms
of every contract to paper, and avoid the question and litigation consequent
to a failure to adhere to the rule. The object of this book is not to
get its readers out of trouble, but if possible to teach them to avoid trouble
and litigation.
In the United States the statute is held to apply not only to personal
chattels and ordinary goods, wares, merchandise, and materials, but also to
stocks of corporations, bank and promissory notes, book accounts, and bond-
scrip, but not, it seems, to an interest in a patent right.^
The burden of proving that the price exceeds the sum named in the
statute rests upon the party setting up the statute in his defense, and
where many articles or different materials are bought at the same trans-
action the aggregate price of the whole is the price to be considered."
102. What is a Sufficient Memorandum of a Sale. — The note or memo-
randum need not be an agreement or contract, but it must contain the
essential terms of the contract. It must show who are the parties, what
was the subject-matter of the contract, the quantity, price, and any special
terms agreed upon. The memoranda may be contained in several papers,
as in the ordinary exchange of letters in correspondence. A written offer
or proposal is sufficient if accepted. A bill of parcels, a receipt for money,
a vote of a private or municipal corporation duly entered on its books/ or a
series of letters or of telegrams put together, may make the necessary
memorandum. Where connection is to be established between separate
papers they must contain references to one another or be physically joined
together. Parol evidence should not be necessary to establish their connec-
' Brown «& H. Co. v. Wunder (Minn.), 67 Eucy. Law 860 ; Lee v. Griffin. 1 B. & S.
K. W. Rep. 357. 272 ; Clay v. Yatr s, 1 H & N. 78.
2 Forsytli «. Mann (Vt.) 34 Atl. Rep. ^ Giis^sby v. Fombs (Ky.), 21 S. W. Rep.
481. 37; 8 Amer. & Eng. Ency. Law 710.
3 Scales V. Wiley (Vt.). 33 Atl. Rep, 771. « 8 Amer. & Eng. Ency. Law 710.
4 Brown & H. v. Wunder (Minn ). 67 N. '8 Amer. & Eng. Ency. Law 712; Cam-
W. Rep. 357 ; and cases in 29 Amer. & Eng. den I. Wks. v. Fox, 34 Fed. Rep. 200
[1887].
* See Sec. 106, infra.
94 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§103.
tion with the contract. If all the papers be signed they need not refer to
one another, but all must refer to the contract. Parol evidence may be
introduced to identify the papers, but not to connect them.
The memorandum may be printed, made in pencil or stamped; it need
not be delivered to the opposite party, nor need it be published. It is
sufficient that a written memorandum was made and signed by the party
to be charged. If lost its contents may be proved like those of any
writing.^
103. Contracts to be Performed within One Year.— The statute usually
provides that no action shall be brought upon any agreement made, which
by its terms is not to be or cannot he performed within one year from the
date of the making thereof unless the agreement, or some sufficient memo-
randum of it, be in writing and duly signed.
In construing this act the courts have held that if the contract can by
any possibility be performed or completed within a year according to the
intent of the parties, then it is not within the statute and is not required
to be in writing. The mere expectation or supposition of the parties as to
when the contract will be completed does not determine the intent. How-
ever unlikely or impossible it may appear that the contract will not be per-
formed, if it be possible to perform it (not terminate it), it is not within the
statute. When the performance within a year is impossible it must be in
writing or there must be a written memorandum.' Agreements to do an
act more than a year hence; to continue to do an act or service or to refrain
from doing it for a greater period than one year; to take a lease for more
than one year or for a year, the same to begin at some future day; to serve
or employ for more than a year or for a year, the service to begin at some
later day; and all contracts in which it is evident that they cannot be per-
formed according to the express intent of the parties within a year, are
within the statute. An oral agreement to make annual payments in a con-
tract which by its terms is to continue sixteen years is within the statute,
and cannot be enforced ; ' but it might be otherwise if the contract were
completely performed by the debtor."
The following instances will serve to show what agreements are not
within the statute, and, if not subject to the restriction of other sections of
the statute, need not be in writing : A verbal contract to construct a road
or house within a year and twenty days from the date thereof was held valid,
as it might be completed within the year.^ The same has heen held of an
agreement dated June 5, 1883, for the erection of a structure to be put up
J 8 Amer. & Eng. Encv- Law 710-738. (Dak.), 37 N. W. Rep. 749 [1888], and
2 Warren Co. v. Halbrook, 118 N. Y. note.
586. 16 Amer. Repts. 788; Lockwood v. ^ jackson Iron Co. v. Negaunee C. Co.
Barnes, 3 Hill 128; Jilson v. Gilbert, 26 (C. C. A.), 65 Fed. Rep. 298.
Wis. 637; Doyle v. Dixon, 97 Mass. 908, ^Weatherford, etc., R. Co. v. Wood
93 Amer. Dec. 80, and note; 8 Amer. & (Tex.), 29 S. W. Rep. 411.
Eng. Ency. Law 686 ; Sarles v. Sharlow ^ Jones v. Pouch, 41 Ohio St. 146 [1884] ;
§ 105.] LAW OF GONTliAGTS. 95
part during the season of 1883 and part during the season of 1884; * and of
an agreement to work a quarry and to divide the profits, no time being
specified.''
If the promise depend upon the happening of an event which may
not happen within a long time, but which has happened within a year,
the agreement is good and will sustain an action.' A verbal contract to
deliver ties, timber, etc., on the line of a railroad, to be inspected once a
month, and, if received, to be paid for at current prices, the contract to
continue until the contractor is notified to stop, is not within the statute;*
and so also of an agreement to continue to supply materials as long as
wanted.^ An oral agreement between a father and a son by which the son
is to support his parents during their lives is not within the statute, as it
may be performed within a year;" but a verbal agreement whereby a rail-
road company undertakes to lay a switch for the use of a sawmill-owner,
and to maintain it as long as he should need it, was held within the stat-
ute when it was expected and understood that he would need it for many
jears.''
When it is expressly agreed that a contract is to be performed within
one year, extension from the date of completion from time to time by parol
for periods less than one year will not be effected by the statute of frauds.'
104. Contracts Executed or Completed by Contractor. — If the contract
is executed by one party it does not come within the statute of frauds.
Therefore a contract to build a house for $2400;— $500 when the house is
begun, $500 when the house is finished, and the residue in five yearly pay-
ments, with interest payable semi-annually, was held not within the statute,
the contract having being wholly performed by the contractor within a year.
The contract had been reduced to writing, but never signed.' AVhile this
•case may represent the general law, there are many cases to the contrary in
Massachusetts,'" New York, Vermont, and other states. If, however, the
contract has been fully performed and accepted by one party to the enrich-
ment of the other party, such cases may be supported on the ground that a
contract is implied by law to pay for the same, and the contract is good
•evidence of the value of the performance or work done.
105. Contracts for Employment Not to be Completed within a Year. —
Instances within the statute which are most likely to occur in the experi-
Plimpton7x Curtis, 15 Wend. (K Y.) 336; Rep. 241 [1888] ; 8 Amer. & Eng. Eucy.
Fain v. Turner's Adm'r (Ky.), 29 S. W. Law 691.
Rep. 628. ■» Warner v. Texas & P. Ry. Co., 17 Sup.
1 Siirles v. Sharlow (Dak), %1 N. W. Rep. Ct. Rep. 147.
749ri888]. 8 Donovan v. Richmond (Mich.\ 28
2 Treat v. Hiles (Wis.), 32 N. W. Rep. N. W. Rep. 516; 8 Amer. & Eng. Ency.
517 Law 688.
3 8 Amer. & Eng. Ency. Law 690. «Durfee «. O'Brien, 14 Atl. Rep 857
4 Walker t). Railroad Co. (S. C), 1 8 E. [1888] : Haines v. Thompson, 19 N. Y.
Rep, 366 [1887]. Sup. 184.
6 Walker v Johnson, 96 U. S. 424 ^^ See 8 Amer. & Eng. Ency. Law 692.
•Carr v. McCarthy (Mich.), 38 N. W.
96 ENOINEERING AND AEGHITECTURAL JURISPRUDENCE. [§ 105^
ence of every engineer or architect are verbal contracts for employment by
the year, which are usually made some time before the service begins. Such.
a contract, unless in writing, will not hold, and the employee may get.
his discharge any day and find himself without redress/ If the con-
tract of employment as set forth in his written memorandum is incom-
plete, then the contract may fail. If, however, the service be by the
year and has continued for one year, and as to the next year nothing
has been said, a new implied contract may arise at the end of the first
year's service, which the law will enforce though not in writing. The
new contract implied by the law is a hiring from year to year, per-
formed within a year, and therefore good.' A verbal agreement for a
future term to begin at once and not exceeding one year is not within
the statute.'
A contract for one year, to commence when the employee secures release
from present employment, was held not within the statute, when it was
possible to secure the release on the date of contract, though in fact the
release was not secured till later.* A verbal contract for steady and per-
manent employment is not void or within the statute, as it may be at an end
any time upon the death of the employee.' If the contract by its terms con-
tains an option allowing either party to terminate it within a year, it is not
within the statute and need not be in writing.' * If no definite time be
agreed upon as to when the service shall terminate or how long it shall
continue, it need not be in writing, but it were better to be in writing
always.''
Contracts not to be performed within a year must be signed by both
parties. If not signed,* part performance will not take it out of the opera-
tion of the statute in an action at law,' although it has been held a ground
for relief in equity."
» Milan v. Rio Grande, etc., R. (Tex.), Ry. Co., 1 Mo. App. 135, " at a monthly
37 S. W. Rep. 165; Moody v. Jones (Tex.), salary, so long as he shall do the work as-
37 8. W. Rep. 379. signed him " Carter W. Ld. Co. v. Kin-
2 Smes V. Supt. (Mich.), 25 N. W, Rep. lin (Neb.), 66 N. W. Rep. 536, "so long as.
485; Cullis v. Bothhamley, 7 W. R. 87; the works are kept runnins: "
Lelande v. Aldrich (La.), 6 So. Rep. 28, « giake v. Voieht (N. Y. A-p.V 31 N.
8 Amer. & Eng. Ency. Law 687, 14 Amer. E. Rep. 256 [1892]; hut see contra Doyle v.
& Eng. Ency. Law 765; Ball v. Stover. 31 Dixon, 97 Mass. 208; a7id see Dobson v.
K Y. Supp. 781; Herman v. Littlefield Collis, 1 H. «& N. 81; andSAmer «& Eng.
(Cal.), 42 Pac. Rep. 443. Ency. Law 692.
3
8 Amer. & Eng. Ency. Law 687; Whit- ' jagaii v. Goetz (Com. Pl.\ ?9 N. Y.
ing V. Ohlert (Mich.), 18 K W. Rep. 219; Supp. 144; Smnlley v. Mitchell (Mich ), 6»
Raynor v. Drew (Cal.\ 13 Pac. Rep. 866 N. W. Rep. 978. "
endnote; Ward v. Mathews (Cal.), 14 Pac. s Wilkinson v. Heavenrich (Mich.). 2ft.
Kep. 604; Sharkey v. McDermoth (Mo.), 4 N. W. Rep. 139.
S. W. Rep. 107: Franklin Su^ar Co, v. ^ Wolke «. Fleming find.), 2 K e! Rep.
Taylor (Kans.). 15 Pac. Rep. 586 [1888]. 825; Henry v. Wells (Ark.), 3 S. W. Rep.
* Baltimore B. Co. v. Callahan (Md.), 33 637.
Atl. Rep. 460. lo Warner v. Texas & P. Ry. (C. C. A.),.
5 Penn. Co. v. Dolan (Ind. App.), 32 N 54 Fed. Rep. 922.
E. Rep. 802; Harrington v. Kansas C. C.
* See also Sec. SOI, infra.
§106. LAW OF CONTRACTS. 97
106. Con'jracts for an Interest in lands. — The statutes usually require
that any contract for the sale or transfer of lands, tenements, or heredita-
ments, or any interest in or concerning them, shall be in writing, or that a.
sufficient memorandum shall be mads in writing..
This section has been held to apply to private sales, auction sales hj
administrators, executors, trustees, commissioners, and public officers,,
except judicial sales, and to exchanges of land. The statute applies to
every agreement in regard to the title of lands, for the sale of equitable-
title as well as the legal title, and an short to every agreement by which an
interest in land is modified, increased, or diminished, even to agreements-
for the possession of lands; * to agreements in regard to the use of a party
wall;" for the sale of bricks of a ruined house still standing on the land,^ or
to prepare the plans of a building and to superintend tiie construction:
thereof, in consideration of the conveyance of a certain lot.*
Whether a sale of growing timber or crops is an interest in lands is held
differently in different states. . It is usually determined by th» evident ,
intention of the parties, if that can be gathered from the evidence, whether
the sale is a sale of chattels made by cutting the growing timber or crops,
or whether the buyer is to derive any benefit from the lands. In ,som»*'
states it must be in writing if it is a natural growth, i. e., not requiring*
cultivation as timber; while if it is for a crop that has been planted an J
cultivated like growing grain, potatoes, and I'oot crops, then an oral coi;-
tract will suffice.^ A good general rule is that the agreement does not fall
within the statute unless some interest in lands in the nature of a title,
enforceable either in a court of law or equity, is sought to be obtained,
created, or transferred to the party furnishing the consideration.' There-
fore improvements upon lands, distinct from the title or possession, are not
such an interest in the land as to bring agreements therefor within the
statute. A parol promise to pay for work or labor upon land, whether
already done or to be done, has never been held to be within ths statute.'^
An agreement to pay one-half the cost of a party wall located half on
the land of two coterminous owners was held not within the statute of
frauds.^
Agreements relating solely to the use to be made of lands are valid if
not in writing. Such is an agreement not to use a building for a certain:
purpose, to keep up a fence, to remove a fence, or to use lands for the
manufacture of bricks from clay found in it, the title of the property in the
clay and wood to remain in the owner until paid for. An agreement not to^
^ 8 Amer. & Eni;. Encv. Law 694-7. •> 8 A.mer. & Encr. Enrv. Law 701.
2 Rice V. Roberts 24 Wis. 461. ' Many canes cited in 29 Amer. <fc Ensr.
3 Meyers v. Schemp, 67 111. 469; hut see Ency. Law 860; Scales v. Wiley (Vt.\ 33^
contra 8 Amev. & Eng. Encv. Law 698. All." Rep. 771,
4 Koch v. Williams (Wis ). 52 N. W. » Stubt ®. Sweezy (Neb.), 67 N. W. Rer>.
Kep. 257 . 748.
6 8 Amer. & Eng. Ency. Law 698-700.
:98 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 107.
build within a certain number of feet from the street and an agreement to
open a street have both been held to be within the statute; ^ but parol agree-
ments between coterminous owners of lands fixing their boundaries, fol-
lowed by possession, is valid and binding,' and an agreement to remove a
fence has been held not within the statute.^ There are, however, decisions
holding such oral agreements void.* Usually the cases hold that the parties
must occupy to the boundary for the full statutory period, which bars an
action at law, though there are cases to the effect that possession for a
shorter time will fix the boundary/
The right to possession of land is such an interest in land as to require
■an agreement to deliver possession to be in writing.'
107. Special Agreements Relating to Lands. — Agreements releasing
pecuniary claims for damages to lands where they have been flowed by a
mill-pond,'' or have been taken for public purposes, need not be in writing,
for they are held not within the statute."
Agreements to refund or discount the price if the quantity of land falls
short have been held valid if not in writing, but an agreement to pay an
additional sum if coal was found has been held within the statute.*
Where land has been conveyed an oral prorriise to pay therefor at a
-certain rate is not within the statute of frauds, and the stipulated amount
may be recovered in an action at law.'
108. Contract Implied by Law to Pay for Benefits Conferred when
there has been Enrichment. — Under any of the provisions of the statute,
if a contractor has, in reliance upon an oral agreement and in accordance
with its terms, made improvements which are a benefit to the other party
estate, he may recovei* their value if the other party refuse to perform his
part of the agreement. The recovery is not upon the oral agreement, but
upon the contract implied by law and imposed upon the owner by law that
lie shall not enrich himself at the expense of one whom he has victimized.
An attempt to make an oral contract between the parties, or the existence
of such an undertaking, does not prevent the law from imposing a contract
upon the party who has profited by his own wrong." The owner must have
been enriched, for if the contract was entirely for the benefit of the con-
tractor he cannot recover, and the profits he has received may be deducted
from the value of the improvements." *
^ 8 Amer. & Enjr. Enov. Law 708. Smith ?\ Gonlding. 6 Cush. (Mmps.) 154.
2 ArrluT «. F^lin CMis*.). 11 So. Rep. 3. ^ g Amer. & Eni?. Eiicv. Law 704.
3 Strrms v. Snvd^r. 10 Johns. 109; and » Freed v. Ricliy (Pn.i 8 Ail. Rep. 626;
seeAA Wis 96. 60 Wis. 310, 500. Kirkland v. Mensha W. W. ("o. (Wis.), 31
4 White V. TToDeinan. 43 Mich. 267; N, W. Ren. 471; Huff r. Hall (Mich.), 23
Hncrev v. Detweiler, 35 Pa. St. 409. N. W Rep. 88; Camp v. Moreman (Ky.),
^ Spe Adverse Possession, 1 Amer. &Eng. 2 S. W. Rep. 179; Railroad Co, v. English,
Encv. Law 240-250. 16 Pac. Rep. 82 [1387].
•Boyd V. Paul (Mo.), 28 S. W. Rep. ^o 8 Amer. & Eng. Ency. Law 661.
171. 11 8 Amer. & Eng. Ency. Law 662.
' Clement v. Durp:in. 5 Greel. (Me.) 14; ..
*See Sec. 53, supra, and Sees. 690, 697, 703, infra.
§110.] LAW OF CONTRACTS. 99
< *
109. Contracts for the Creation, Assignment, and Surrender of Estates in
Land. — By the statute of frauds all estates created or transferred must be in
writing, and usually the law also requires that they shall be sealed and wit-
nessed, and that they shall also be acknowledged and made of public
record. Usually estates less than a freehold are not required to be acknowl-
edged nor registered, but it is good practice nevertheless to have both cere-
monies carried out, except perhaps in case of short leases. All such
instruments should be signed by both parties. Bids at auction sales of
house-lots or land, being verbal, are within the statute of frauds and not
binding. Being voluntary, they are usually carried out, but cannot be
enforced.' A parol promise by a grantor to warrant and defend the title
to the land sold is void, being within the statute."
The question often arises as to what is a lease, or such an estate in land
as to require a written instrument, and upon that question there are deci-
sions both ways. Without doubt all agreements for the permanent occupa-
tion of another's lands or any part thereof should be in writing. So it has
been held that permission to erect upon the land of another a permanent
structure, such as a building or a bridge, or leave to occupy with a railroad, a
canal, a dam, or to overflow by a dam, to dig a drain or lay a pipe, to dig
and carry away coal, ore, stone or dirt, or to haul logs across, amounts to a
lease, since it is a grant of an interest in the land itself, and must be in
writing. There are cases which hold to the contrary that where oral per-
mission has been given to build a permanent structure upon lands, as a
party- wall, a bridge, an aqueduct, a dam, etc., that although mere licenses
are ordinarily revocable at any time, yet having been acted upon they
are valid, binding, and irrevocable.' The fact that there are such de-
cisions affords no excuse for one to accept such a license and invest his
money on the strength of it, if he can get a lease in writing, even by paying
for it.
110. Promises to Answer for the Debts of Another. — The statute alsu
requires all contracts or agreements to answer for the debt, default, or mis-
doing (miscarriage) of another party to be in writing, or some memorandum
to be made in writing, and signed by the party to be charged. The provi-
sion varies slightly in the different states, but the law is generally that
promises to pay other's debts or to be surety for their undertakings must be
in writing. The statute includes every kind of liability that may be enforced
in a civil action, but the promise must be to the creditor himself, and not to
the debtor — i. e,, the one who is himself liable, the latter promise is not within
the statute of frauds. A promise by the debtor himself to pay is not within-
the statute, even though another is also liable, and even though one debtor
promises to pay if the other debtor does not pay. Therefore the promise of
1 Boyd V. Greene (Mass.), 39 N. E. Rep. ^Kq\U v. Palmer (Neb.), 60 N. W. Rep.
277; and see Lobit v. McClave(Tex.), 28 S. 924.
W. Rep. 726. 3 g Amer. & Eng. Ency. Law 667.
100 ENGINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§111.
a partner to pay a firm debt is not within the statute, while a stockholders
promise to pay a corporation debt is within the statute.
The promise must be to pay with his own funds, and not out of the
funds of the debtor that are in his possession, and a debt, it seems, is not
funds or property in this sense. The promise must be for a good con-
sideration.
111. Application of the Law to Construction Work. — In construction
contracts, cases often arise where the contractor has failed to pay his men or
is unable to get materials to go on with his work, and the owner or person
•to be benefited by the performance of the contract has promised to pay for
the labor and materials if the workmen and materialmen will continue at
work and to supply the necessary materials of construction. When the owner
makes such promises it is important to ascertain whether he himself under-
takes to assume the obligation or whether he insures the payment of the
contractor's debt. If the owner seeks to obtain a direct benefit or advantage
to himself, as to relieve his property from a lien, it is generally held an orig-
inal obligation, and therefore not within the statute.^ If it be the evident
intention to insure the payment of a debt of another, then it is within the
.statute, and must be in writing. Some courts have based their decisions
upon the fact whether there was a new and distinct consideration for the
promise, and if it inured directly to the benefit of the promisor, in which
•case it was not within the statute; while other courts have ignored these
facts, as well as the parties' intentions, and called it a collateral obligation
if the original party (contractor) remained liable, making the promise
within the statute unless the agreement was a substitute for the original
liability.
There are many cases on both sides," but there is a safe and sure way for
the owner or his engineer, which is to make such agreements in writing,
iind to make it clear whether the undertaking is to cancel the obligation of
the contractor and to substitute the owner, or whether the original obliga-
tion is to continue and the owner become a surety for its performance.
Some cases will illustrate the law. Thus when a contractor having an
iipparent purpose to quit unless payment was made or assured was told by
ii third party, to go on with the work and he would see that he got his pay
it was held that as to the work already performed the promise, not being
founded on any consideration, was a collateral undertaking to pay the debt
of another, which, not being in writing, was void.^ The same decision was
reached when a third party told the contractor to go on and finish his work
and he himself would pay for it." In another case an oral agreement by the
owner to pay a subcontractor, on the abandonment of the contract by the
» Segiiine v. Spaeth (Com. PI.), 35 N. Y. 29; Warwick v. Grasholtz. 3 Grant 204
Supp. 847. ' ^G\\\ V. Herreck, 111 Mass. 501 [1873];
2 8 Amer. & Eng. Ency. Law 682 Lachman v. Irish (Sup.), 25 N. Y. Supp.
3 Gable v. Graybill, 1 Pa. Super. Ct. Rep. 193.
-§111.] LAW OF CONTRAGTS. 101
original contractor, an amount already due him from the latter and aix
additional sum for extras if he would complete the work, is not void as
being a promise to answer for the debt of the contractor.' An interesting
case is reported where an owner had written to a subcontractor as follows:
^' By direction of the contractor and at the request of 0. I hereby hold
$2700, which I hereby agree to pay you when the work has been delivered
and put in proper and workmanlike manner; $2500 of which is to be charged
on my contract with the contractor on account of his contract with C,
and $200 on account of his contract with me, for your labor in putting
«aid work in said place." It was held a guaranty to pay the debt of C, and.
not an original obligation by the owner.^
When a contract provided that if the contractors failed to furnish mate-
rial the owner would supply the material and deduct the cost from the
price, and a materialman, after furnishing certain material on the con-
tractor's credit, refused to furnish more, and an arrangement was made
whereby, on the contractor's written order to the owner, the architect was to
make the estimates and payments directly to the dealer, it was held that the
agreement was not within the statute of frauds, as it was not a promise to
j)ay plaintiff's debt, but to benefit defendant by the immediate acquisition of
materials for the building/
A subsequent promise by an owner to a materialman to see that mate-
rials furnished in the construction of the owner's house upon the credit of
the contractor were paid for is not enforceable, and it will not support a
personal judgment against the owner. Such a promise was held a mere
Terbal collateral contract."
If a contractor, not being paid by an owner, has abandoned the contract
and afterwards resumed it, and did certain extra work on the verbal promise
of a third party to pay him, but the evidence showed that he still looked
to the owner for his pay, and not to a third party except as guarantor, the
promise of the third party, not being in writing, is void both as to the
•extra work and that done under the contract.^
A verbal agreement on the part of a supply company to furnish a sub^*
•contractor materials for his subcontract, the bills when O.K.'d to be paid
by the contractor, is an original agreement on the part of the supply-men,
and not an agreement to pay the debt of the subcontractor." It haa
been held, however, that a promise by a contractor to his subcontractor's
men if they will continue at work is an original undertaking on a sufficient
-consideration which need not be in writing.'' Promises by a husband
'McLaughlin i). Austin (Mich.). 63 N.W. ■* Farnham v. Davis (Me), 9 Atl. Rep.
Rep. 719; Andree v. Bowman, 13 Md. 241. 725 [1887].
2 Biersohenk v. Stokes, 26 N. Y. Supp. ^ Brester v. Pendell, 12 Mich. 221 [1864]
88; and see Emerson -». Shiter, 22 How. 28. ^ Barras v. Pomeroy Coal Co. (Neb.), 5t
3 Bice V. Marquette, etc., Co. (Mich.), 55 K W. Rep. 890.
N. W. Rep. 382; Calkins v. Chandler, 36 '' Snell «. Rogers (Sup.), 24 N. Y. Supp
Mich. 324, followed. 379.
102 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 112
for ihe wife's individual debt, or by the wife for the husband's debt, have
been held to be within the statute, and void if not in writing.'
In an action by a materialman against a contractor for lumber furnished
for a house it is no defense that the owner assumed the debt unless there
was a novation which released defendant.''
The statutes usually require all contracts in consideration of marriage
to be in writing, or that there be a written memorandum of the terms of
the agreement signed by the party or his authorized agent. Such contracts
are marriage settlements or any agreement which makes the marriage the
consideration. It does not include mutual promises to marry.*
STATUTE OF LIMITATIONS.
112. Objects and Reasons for the Statute. — The time within or the
period in which the obligation of a contract can be enforced, or within which
an action or suit can be brought for a breach of a contract, is limited in the
United States, England, and Canada by certain statutes of limitations. The
object of these statutes is to require people to enforce their rights within
a reasonable time or to abandon them. They are calculated to give
security and repose to business, and to relieve the parties from the necessity
of preserving indefinitely their receipts and other evidence of settlement.
It provides against the evils that arise from loss of evidence and the failing
memory of witnesses, and relieves the defendant from the burden of keep-
ing track of witnesses and preserving documentary evidence in tlie constant
apprehension of being called upon to defend himself in an action at law,
while the claimant is required to employ reasonable diligence in prosecuting
his claims. The statutes may prove an obstacle to just claims, us where a
party may not be able to pay during the period, but afterwards becomes
afiQ.uent, or where it is within the power of the defendant to avoid and evade
a suit during the statutory period.*
The statute had its inception in the convenient rule made by courts that
after twenty years a presumption arose that debts and even bonds had
been paid or released unless the delay was explained by the creditor and he
showed that they had not been paid. In fact, independently of any statute
of limitation, courts of equity have inherent powers to refuse relief after
undue and unexplained delay, and when injustice would be done by grant-
ing the relief asked, and the doctrine applies to suits relating to land.'*
113. Statute Does Not Destroy the Contract Obligation, but Affects the
Remedy or Means of Enforcing It. — The statute does not and cannot affect
^Breunan d. Clmpiu, 19 N. Y. Snnp. * 8 Amer. & Eng. Encv. Law 684; Short
237; Pfikins «. Westcoat (Colo.), 33 Pac. «?. Statts, 58 Ind. 29 [18771.
Rep. 139. 4 13 Amer. & Eng. Eucy. Law 736.
.* Aidritt V. Panton (Mont.), 42 Pac. Rep. ^Abraham v Oidway, 15 Sup. Ct. Rep,
7^. 894
§ 114.] LAW OF CONTRACTS. 103
the contract obligation, it is no part of the contract, but it denies the
claimant a means of enforcing his right in a court of law after he has
delayed a certain number of years to enforce it. It affects the action only,
and not a defense. Thus a defendant may show that a contract was pro-
cured by fraud, though the statutory period Jias passed. A counter-claim
or cross-complaint is not a defense in this sense. The statute has only to da
with the remedy for a breach of the contract, for without a breach there is
no action on a contract. When the statutory period has elapsed no action
can be brought in a court of law, and courts of equity decline to entertain
suits when an action at law is barred unless there are circumstances show-
ing fraud or oppression.
Much difference of opinion has been expressed as to whether the statute
affects the right of the claimant so that if the statutory period be changed
(extended) it restores the claimant's right to sue. Whether or not this be
so, it is well settled that the statute does not destroy the obligation, and
that it affects only the remedy, and not the merits of the claim.'
114. Disabilities that May Prevent the Operation of the Statute— Per-
sonal Disabilities. — Since the defense of the statute is given on the presump-
tion that the claimant has been guilty of laches, it follows that if no delay
can be imputed to the claimant, then the statute ought not to apply. If the
ability to bring an action has been taken away from the claimant, or he has
been disabled from bringing an action of law, i. e., if he (she) were in
infancy, insane, idiotic, or under coverture, except where women have the
right to sue and be sued, or his (her) residence was in a foreign country or
state, such disability must have existed when the right of action accrued,
for if the statute had commenced to run no subsequent disability would
interrupt it. If a contractor dies even a day after his cause of action
accrued, that day was sufficient to set the statute in motion, and if an infant
heir were left the infant cannot plead his disability, though there was no
time during the whole period when he was of age and able to bring an
action. This may seem unjust, but the rule seems a necessary rule to insure
the security and repose for which the statute was created. For the same
reason one disability cannot be tacked or added to a previous disability
partly or entirely run out.
Therefore if a woman is an infant when her right of action accrues, and
before she becomes of age she marries, becomes insane before her husband
dies, and then dies leaving infant children, only the first disability of infancy
will prevent the statute from setting in, and it will^bar the statute only so
long as the woman was an infant. . Such a case shows how the very object
of the statute might be subverted if such a rule were not maintained. Sev-
eral generations might live under disabilities in families in which early
marriages, insanity, and short lives were hereditary.
» 13 Amer. & Eug. Ency. Law 693-704.
104 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 115.
If the action accrue when the party is under more than one coexisting
disability, the statute will not be set in motion until they are all removed.
Therefore if, when the right to an action accrues, a woman be married,
under twenty-one years of age, and insane, and her husband died at thirty
and she became sane at forty, the statutory period would not begin to run
until she were forty.
So long as there is nobody against whom the claimant can bring an
action the statute of limitations does not run. Such cases arise when the
administrators of the defendant have not been appointed, though it does not
exclude the time between the death of the claimant and his administrator.
115. The Letter of the Law is Applied Strictly, without Regard to Hard-
thip or Misfortune. — The statute does not run against a town until it is in-
corporated and has capacity to sue. There are exceptions, however, to this
rule in California^ and Georgia. The statutes of many states contain special
provision for such cases, which statutes should be consulted. There has
been a doctrine, which is no longer accepted, that an inherent equity would
create an exception to the rule, but the general law now is that the language
of the act must prevail, and no reason, based on apparent inconvenience or
hardships, can justify a departure from it.' This is illustrated by a remark-
able case in which a city eluded the service of summons during the whole
period of ten years, the statutory period. Each year, as soon as the officers
of the city were elected, they met and transacted what business was neces-
sary, in a secret place, with doors locked and sentries posted, after which they
filed their resignations, which by law took effect immediately, leaving no
officer of the city upon whom the railroad company, who held the city's
bonds, could serve summons. The court held that however dishonest and
wrong morally it was for a debtor to evade services of process, it was
not fraudulent in a legal sense, and that as it did not come within awy
express exception of the statute, the court could not make it one, as that
would be making a law instead of administering it, the former of which is
for the legislature, the latter for the courts.'
War is such a disability or condition as will prevent the statute from
operating. It must affect the parties or be of such duration and character
as to. close the courts. War will not only prevent the statute from taking
effect, but it will interrupt the running of the statute for the term that the
war existed.
116. Statute Does Not Operate against the Government. — The state nor the
United States are not barred unless it is so expressly provided in the statute.*
The business of the government being transmitted entirely through agents,
who are so numerous and scattered, the utmost vigilance would not protect
^ 18 Amer. & Eng. Ency. Law 737. ^^gij^ntgy v. Schwalby (Tex.), 19 8. W.
3 13 Amer. & Eng. Ency- Law 735. Kep.264 [1892] ; Jefferson City «. Whipple,
3 Amy. V. Watertown(Wis.), 23 Fed. 71 Mo. 519 [1880].
Rep. 418.
§ 118.] LAW OF CONTRACTS. 105
the public from losses and combinations to defraud the government. The
government is, therefore, exempt from the operation of the statute upon the
grounds of public policy, and not upon the notion of extraordinary preroga-
tive. This exemption is accorded to the different branches of the gov-
ernment only when they act in the sovereign capacity. If the govern-
ment engages in purely business transactions, as in banking, it is held
to be divested of its sovereignty, and to no longer be exempted from the
statute.^
Eights of a public nature cannot be lost from the lapse of time, but
when the rights involve a mere claim of dollars and cents and involve no
question of governmental right or duty, the courts hold the government to the
ordinary rules controlling courts of equity. In general, in ordinary business
transactions, cities, towns, counties, and school districts are within the statute
of limitations as much as the individuals with whom they do business.^
Trespass, nuisances, and other encroachments upon public property cannot
be supported by possession and enjoyment for any length of time, for public
rights cannot be los{; by adverse possession, unless the statute has expressly
included the government.
Though the government is not required to plead the statute when plain-
tiff to a suit, it can plead the statute against its subjects when sued by them,
and it seems its representative officers have no power to waive the statute.^
The defense of limitations must be raised in the trial court ; * it cannot be
raised for the first time on appeal.*
117. Agreements to Waive the Protection of the Statute. — Agreements to
waive the statute of limitations or to not plead it in certain actions, even
though founded upon a good consideration, have been held void as against
public policy. Such agreements may amount to a new promise to pay
a claim and take the claim out of the statute as to the length of time already
transpired, but not as to the future."
The bringing of a suit by the claimant stops the statute running, and
the rule is pretty well settled that the day on which the action accrues
is excluded in computing the statutory period. In some states the action
is begun by the actual service or by the delivering of summons to the
sheriff.
118. New Promises May Interrupt the Running of Statute and Forfeit
Its Protection. — A contractor or party to a contract, express or implied, may
have lost the protection that the statute would have afforded him by making
new promises, acknowledging the debt, or part payments upon a long stand-
ing account or contract. An express promise to pay a debt, or acts or words
from which the law can imply a promise will make a new cause of action
^ See Uni'ed States -y. North Amer. C. Rep. 261.
Co. (C 0. ), 74 Fed. Rep. 145. ^ Eiseman v. Heine (Sup). 37 N. Y.
^ 13 Amer. & Eng. Ency. Law 715. Supp. 861 ; Pickeit v. Edwards (Tex.), 25
3 13 Amer. & Ens:. Ency. Law 716. S. W. Rep. 32.
■* Shaver v. Sharp Co. (Ark.), 34 S. W. « 13 Amer. & Eng. Ency. Law 717.
106 ENQINEERINQ AND AJRCHITECTURAL JURISPRUDENCE, [§ 119.
which can be sued upon any time within the full statutory period; it starts
the statute anew from the date of the express or implied promise. Any
acknowledgment of the debt, such as part payment, unless accompanied by
declarations or circumstances which clearly indicate that the act is not an
acknowledgment of the debt or claim, will be sufficient for the law to imply
a new promise to pay.
Part payment of the principal, payment of interest, or an acknowledg-
ment indorsed upon a note is usually sufficient to start the statute afresh,
but the payments must be voluntary, so that a promise may be implied. If
the promise is " to pay as soon as I can " or on the happening of a certain
event, then it must be shown that the promisor has since been able to pay
or that the event has transpired. The acknowledgment must specify the
amount of the debt and the debt referred to if it cannot be in some manner
connected with the debt or account to which it relates. It is sufficient if
the amount can be computed. An acknowledgment that one owes another
for services has been held sufficient, and the wages may not have been
agreed upon. Usually the acknowledgment must be in writing by the
debtor or his authorized agent, and must be communicated to the creditor
or his agent.'
119. Injury Concealed by Fraud, so that Right of Action was Not Known.
— Cases frequently arise in construction-work where the cause of action is
not discovered at the time it accrues, as where inferior work or poor mate-
rials have been used and their use concealed from the owner, and have not
been discovered for some years thereafter. It is an established rule in
courts of equity that fraudulent concealment of the cause of action on the
part of the contractor will deny him the protection of the statute of limita-
tions so long as the owner remains ignorant of his rights or the injury he
has suffered. However, this is no special rule, for it is a general practice
for courts of equity to give relief to one on whom fr^ud has been practiced.
Courts of law have sometimes followed the rule, though not universally, and
it has been generally applied in courts having concurrent jurisdiction of
both law and equity cases."
When fraudulent practice iias been concealed, the time will not begin to
run in favor of the perpetrator of the fraud until the fraud has been dis-
covered, or until it might have been discovered if reasonable diligence had
been exercised." The party defrauded must be diligent, and a clue to facts
which if followed up diligently would have led to a discovery has been held
equivalent to a discovery.* The recording of a deed has been held sufficient
notice, so that there should have been a discovery.*
^ 13 Amer & Enir. Ency. Law 748 et steq. 4 ^^vyU v. Hnggin, 28 Fed. Rep. 275. and
« Leake s Digest of Law of Contracts 977; case^ cited
Troup ^ Smith 20 Johns. (N. Y.) 33; 13 ^B.-attic ^ Pool, 13 S. Car. 383: hvt see
Amer. & Eng Ency Law 728. Heindon v. Lewis (Tenti.), 36 S. W. Rep.
»Kirby v. Lake Shore, etc.. R., 120 U. 953
6. 130; Amy v. Wateriowu, 130 U. S. 320.
§121.] LAW OF CONTRACTS. 107
The fact that the contractor has made no special effort to conceal the
fraud does not give him the protection of the statute in a court of equity,*
but at law the fraud must have been committed by affirmative acts.
Concealment without fraud, it seems, is not sufficient to toll the statute, nor
is fraud without concealment.
In some states the statute is tolled, ^.e., inoperative, only in such actions
for relief on the ground of fraud as were originally recognized in equity,
while in other states and in England the statute is made to run only
from the time the fraud was discovered or might have been discovered
with reasonable diligence. Each case must be decided by the law of the
state by which it is governed. It is sufficient for the purpose of this work
to give a general idea of the law, so that engineers, architects, and con-
tractors may avoid difficulty and litigation.
120. Bad Work Concealed When under Inspection and Supervision of
Engineer.— How far the inspection and supervision of work by the owner's
architect or engineer would excuse the contractor from the charge of fraudu-
lent concealment would be a matter of fact in each case. If there was no
express act on the part of the contractor to conceal bad work, no deception
practiced upon the inspectors, such as enticing them away, or working
secretly at hours when the work was supposed to be idle, or of bribing them
to pass imperfect work, it may well be doubted if poor work not in accord-
ance with the contract would be called fraudulent, or that it could be said
to be concealed. This would be especially true when the fact of an in-
spector's being appointed and every clause of the contract shows that it was
feared, if not expected, that the contractor would take advantage of every
opportunity to slight the work and effect every saving possible to himself.*
Collusion between the contractor and engineer or architect by which the
latter was to pass work or materials which it was his duty to reject or report
to his employer would without doubt amount to a fraud which would give
relief in equity to the owner or proprietor. A failure on the part of one
holding fiduciary relations or relations of confidence and trust to report
what it was his peculiar duty to disclose has been held a fraudulent con-
cealment.'f It has been held that fraudulent concealment by an agent of
the amount collected for his employer prevented the running of the statute.'
A petition based on fraud which was practiced more than the statutory
period before the beginning of the suit should allege that the fraud was
discovered within the period of limitations.*
121. Liability of Engineer for Misconduct after Statutory Period has
Elapsed. — It seems that an engineer or architect or attorney cannot be
prosecuted for misconduct, negligence, or mistake in designing, examining,
1 13 Amer. & Eng. Ency. Law 683. Rep. 197.
2 13 Amer. «& En£^. Ency. Law 729. ^ McCalla ©. Daugherty (Kan. App.), 46
3 Bonner 'o. McCreary (Tex.), 35 S. W. Pac. Rep. 30.
^See Sees. 282, 446, and 463-469, infra. \See Sec. 849a, infra.
108 ENQINEEUINO AND ARCHITECTURAL JURISPRUDENCE. [§ 122»
or inspecting work or drafting papers, etc., after the statutory limit (usually
six years) from the time the act or negligence was committed, although it.
was not known to the employer and was not discovered by him until the-
period of limitation had elapsed. It has been held, therefore, that one wha
has been employed to examine titles or securities and has done so in a negli-^
gent manner, whereby money loaned upon it has been lost, the right of
action dates from the negligence or misconduct.' The cause of action ac-
crues the moment the employee fails to do what he agreed to do.
In some states the time is limited by statute in which a person may
brinff his action after he has discovered the fraudulent concealment. In
Alabama only one year is given, in Michigan and Kansas two years, and in
Colorado three years. In Missouri the discovery must be made within ten
years, and in Kentucky the action must be brought in ten years or it ia
barred, whether the fraud be discovered or not.
An action for breach of a contract will lie at once on a positive refusal
to perform, though the time specified for performance has not arrived."
When extra work or extra expense is required to carry out changes in
the plans of work done under a contract, the period of limitations does not
begin to run while the contract is executory.'
LAW OF CONTRACTS. PROOF OF TERMS OF COLLATERAL CONTRACT.
PAROL OR VERBAL AGREEMENTS.
122. Parol Evidence Not Admissible to Vary or Contradict a Written
Contract.* — Parol evidence of what was said or done before or at the time
of making a written contract is not admissible to alter, vary, or contradict
the express terms of that contract. The proposition is of too long standing-
and is too well recognized as one of the foundation principles of the law to-
be questioned.*
It is a general rule of law that when parties have deliberately put their
engagements in writing in such terms as import a legal obligation, without
any uncertainty as to the object or the extent of such engagement, it is
conclusively presumed that the whole engagement of the parties and the-
extent and manner of their undertaking were reduced to writing.^ In such
case to add to it by implication would be to vary its terms and legal effect.*
' Leake's Digest of Contracts 977; Short As to responsibility when injury results
« McCarthy, 3 B. & Aid. 626; Brown v. fr<)m an undiscovered defect in the engi-
Howaid, 2 B. & B. 73; Howell ■». Young, neering works, see Underhill on Torts 17.
5 B. & C. 259: Wilcox v. Plummer. 4 * Bishop on Contracts 175. 355. 58, and
Pet. 172; Argall v. Bryant, 1 Sandf. 99; cases cited; 17 Araer. & Eng. Ency. Law
Rankin v. Shaetfer. 4 Mo. App. 108- 420.
2 Donovan v. Sheridan (Super. N. Y.), ^ McKinley v. Williams (C. C. A.), 74
24 N. Y. S. 116. Fed. Rep. 94.
3 Gibbons v. United States, 15 Ct. of CI. ® Merchants' Ins. Co. -o. Morrison, 63
174 [1879]: and see Wilkinson v. Johnston 111. 242 [1871]; see also 69 111. 226, 13 111.
(Tex.). 18 S.W. Rep.746; O'Brien v. Sexton A p. 503.
(I11.),30N.E. Rep. 461 [1892]; andKniglit This presumption may be overcome if
«. Knight (Ind.), 30 N. E. Rep. 4S1 [1892]. the parol evidence be admitted without
* See Sees. 559-563, infra.
§122.] LAW OF CONTRACTS. " 109
All conversations and agreements had or made and tending to vary or con-
tradict the provisions of the written contract are inadmissible as evidence to
show the meaning or intention of the parties. The written contract must
be taken to express the final intention and understanding of the parties.
Whether the evidence offered be conversations, correspondence/ or previous
oral understandings with regard to the same subject-matter, it is not admis-
sible if the contract be clear and certain in its terms.^
If there is any one thing that should be impressed upon the minds of
engineers, architects, contractors, and builders alike, as well as upon the
minds of owners, officers, and managers, it is the fact that a written contract
should be complete. It should contain every term and provision, stipula-
tion and condition that the parties are agreed upon. It should embody
every item of prior and contemporaneous agreements that they intend shall
be the basis of the contract. It should not only provide for present and exist-
ing conditions, but should anticipate every difficulty and controversy that may
arise in the execution of the contract or the prosecution of the work. When
the contract is made and entered into is the time to insist that all the terms
agreed upon shall be incorporated in the written instrument; and for either
party to take the word of the other that " this or that is understood," or to
be satisfied with the assurance that " we will make that all right," is to
sacrifice so much of the consideration.
Every man is presumed to know the effect of a contract which he signs,
and he can have no action against the other party for misrepresentations
made to him as to its illegal effect; nor wiH such misrepresentations invalidate
the contract." When there is evidence that the contractor read the contract
sued on, he cannot be heard" to say that he was misinformed by the other
parties as to its legal effect.*
If the intention of the parties be clea. the court will not look beyond
the four corners of the paper for the entir<j contract, nor will it listen to any
testimony as to prior conversations, understandings, correspondence, or
promises without there is an independent consideration to support them.
It was therefore held that where a contract was silent as to the time of
performance of a contract, evidence of a contemporaneous agreement as ta
when it was to be done could not be received to vary the ordinary legi^l con-
struction that it was to be' performed in a reasonable time.' So when aeon-
tract has been signed for the insertion of an advertisement in a paper for one
objection. Brady 'o. Nally (N. Y. App.), of a patent actionable, 8 Amer. & Eng.
45 N. E. Rep. 547. Ency. Law 636, if the person to wl)o'm
' Eaton v. Gladwell (Mich.), 66 N. W. they are made has the same means of in-
Rep. 598. formation.
* Bryan «. Idalio Quartz Min. Co. (Cal.), ^ Kinjn^man & Co. •». Shawley, 1 Mo. App.
14 Pac. Rep. 859; Wonderly m. Holmes Rep'r 281.
Lumber Co., 56 Mich. 413 [1885]; Curtisi *Liljengren Fur., etc., Co. «. Mead
«. Waterloo, 38 Iowa 266 [1874]. (Minn.), 44 N. W. Rep. 306; Boehm ®.
3 8 Am. r. &. Eug. Ency. Law 636. Nor Lies, 18 N. Y. Supp. ^7.
are false representations as to the validity
110 ENGINE ERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 123.
year at a price named, payable quarterly, it cannot be shown that there was
an understanding at the same time that the advertisement could be stopped
at any time if it did not suit,' or that it was agreed at the time of signing
the contract that the advertisement and cut should be submitted to
defendant for his approval.' When a contractor has taken work to be
completed by a certain time or to be 'delivered at a certain place, he cannot
prove that the completion of the work was to depend on the delivery of cer-
tain materials, or on the navigability of certain streams,' or that tlie defend-
ant railroad company was to haul the materials,* or that the contract
price was one suitable for a rough job only,^ or that the owner and his engi-
neer had agreed, before the contract was executed, as to the quality of mate-
rials and as to a standard for comparison."
The rule against admitting parol evidence to alter or contradict a writ-
ten contract applies to the signature of the parties as well as to the body of
the contract.''
123. When Parol Evidence will be Keceived. — Parol evidence of a con-
tract is admissible under the following circumstances: 1. To show that
there is not and never was a legal contract. This will admit evidence to show
that the contract lacked any of the essential elements of a lawful contract,
.the incapacity of the parties, a want or a failure of the consideration, or that
the consideration was illegal or immoral, or that its object or purpose was
illegal or against the policy of the law, that the mutual understand-
ing of the parties was not correctly expressed, or that it was not
executed or acknowledged as required by law, or was not delivered, or
was delivered in escrow or subject to a condition, or that it was obtained
by duress, menace, fraud, or collusion, which,, as is well known, vitiates
all acts, however solemn.® 2. To show that the contract, though
absolute on its face, was and is subject to a condition prece-
dent to its performance. Such evidence must prove the existence of a
separate parol agreement that the obligation should not attach until the
condition precedent was performed or the event had transpired.' 3. To explain
the meaning of technical words and expressions, and to prove the existence
of certain customs and usages. In construction work such technical words and
phrases are those used in the trades, or by engineers and architects in
the practice of their profession ; and the customs and usages are those which
have grown up in the business, and may consist of certain rules by which
' Colieii v. Jockoboice (Mich.), 59 N. W. Rep. 598. Otli^r cases see Monroe «. Per-
Rep. 665. kins, 9 Pick. 298; Rand ®. Mather, 11
2 Coleman v. Rung. 31 N. Y. Supp. 456. Ciisli. 1; 59 Am. Dec. 131.
^McNf-eley ij. McWilliams, 13 0nt. App. ' Biilwrinkle v. Cramer, 3 S. E. Rep.
324 [1887]. 776 [1887].
4 Scott «, Norfolk & W. R. Co. (Va.), eBygrstet v. Winona Mill Co. (MinD.).
17 8 E. Rep. 882. 51 K W Rep. 619 [1892]; 17 Amer. &
i^ Crow?). Becker, 5 Robt. (N. Y.) 262. Eng. Ency. Law 488; Best's Cliaraber-
«.Tones 7). Rislev (Tex.), 32 S. W. R*'p. layne's Principles of Evidenc* 23 >.
1027; Eaton v. Gladwell (Mich.), 66 N. W. » 17 Amer. & Enj;. Ency. Law 436.
§ 123.] LAW OF CONTRACTS. Ill
measurements are made and work is estimated.' It is well established that
parol evidence will not be received of a usage which is repugnant to the
express terms of the contract,' though there are cases in which " black " has
been shown to mean " white/^ and in which " one " has been shown to mean
*^ two or more." * 4. It may be shown by parol evidence in what character
the parties contracted — that one or both were acting in the capacity of an
agent, officer, trustee, or administrator. 5. Parol evidence may be received
of a prior agreement based upon a sufficient consideration as a defense to a
suit for specific performance.^
It is the duty of a court to make an agreement effective if possible, and
oral evidence will be received to identify, describe, or explain a contract.*
If it is incomplete, oral evidence will be admitted to supply matter omit-
ted from the writing where it is apparent from the writing itself that some-
thing has been left out. So when a deed conveys " all my real estate '*
without any other description, evidence will be received to locate the prem-
ises,^ and to show that the parties of a written lease of " four acres out of
lot four " had agreed on certain boundaries thereof."
The facts existing at the time the contract was made, and of the circum-
stances of the parties, and of the building, may be shown when the question
is as to whether a building was to be a two or a three story structure, no
plans having been drawn or prepared.' Oral evidence has been admitted
to show quantities, and to show that certain plans and specifications not
referred to in the contract were submitted to the contractor for his estimate
of cost, and that such plans and specifications were modified by subsequent
parol agreement.® Oral evidence is admissible to identify a prior contract
incorporated into, or specifications referred to, in a contract to erect a
structure, and when identified they may be considered in connection with
the contract to determine whether or no the contract is void for uncertainty.
If the contract and specifications appear inconsistent, such variance may
be explained by oral testimony. If the papers when taken together show
clearly that the specifications are incomplete, evidence may be admitted to
explain them or to supply the parts omitted.'"
If a contract to rebuild a wall fails to show how much of the old wall
is to be taken down, it may be shown by parol evidence what was contem-
> Ford V. Beech, L. R. 11 Q. B. 866. ford (Tex.), 27 S. W. Rep. 790.
2 Myers r. Sari, 80 L. J. Q. B. 9; Mallan « Schneider v. Patterson (Neb.). 57 N.
V. May, 13 M. & W 517. W. Rep. 398 ; Trinley v. McDowell, 24 S.
^Sep. 13 Solicitors' Journal & Rep., pp. W. Rep. 928.
312, 336, 353, and 373. ' Doane College v. Lanham (Neb.), 42 K
4 Coleman v. Ma'\ Imp. Co., 94 K Y. W. Rep. 405 [1889].
229; Howard v. Pepper, 136 Mas«. 28; Hsaacs «. Smith, 55 N. Y. Super. Ct.
Bennett «. Pierce, 28 Conn. 315 ; Hilde- 446 [1888].
brand V. Fogle, 20 Ohio 147. 'Bergia v. Williams, 138 Mass. 544;
5 2 Parsons on Contracts 549, 21 Wend. Comer v. Comer (111.), 11 N. E. Rep. 848
652, 13 Peters 89 ; see also Primey v. [1887].
Thompson, 3 la. 74 ; McKinziu v. Staf- ^^ 17 Amer. & Eng, Ency. Law 443-3.
*8ee Sees. 603-629, infra.
112 ENQINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 124..
plated by the parties;' also, that stone from a certain quarry were to bo-
used;' as to how payments should be made and the place and time of
delivery ; ' as to the meaning of the clause " the entire walls of the build-
ing inside and outside are to be painted " when it is claimed and denied that
the plastering as well as woodwork is to be painted ; * to determine how
many cubic feet (16 or 25) constitute a perch of stone in a contract. In the
the absence of a statute defining a perch, it may be shown that it was-
verbally agreed at the time of the negotiations that the work was to be^
performed at 18 cents per cubic foot and that the party who wrote the con-
tract reduced it to $4.50 per perch of 25 feet ; such evidence was held not
to vary the contract, but to enable the court to interpret it in the sense
intended by the parties.^
Likewise, oral evidence has been admitted to show what was intended by
the words " at the price of two dollars per thousand ',"* " hewn timber to
average 120 ft. and to class B, No. 1 Good''; * "at a price per mile of
road whether or not the side tracks were to be measured as road''; ' "to
make up the track in good running order, well surfaced, ties evenly and
firmly bedded, etc." — whether or no this required the contractor to fill in the
space between the ties with earth or other proper substance.*
In general^ parol evidence is admissible to show a different or some
other consideration than that named in the written contract if it be con-
sistent with that which is expressed and does not defeat the legal operation
of the instrument." When the consideration named in a deed is money, it
may be shown that the consideration was in fact land of the value named, or
that it was marriage,'" or a promise to do something." Parol evidence has
been held admissible to show in what manner the consideration was to be
paid, and to show a distinct and collateral agreement which is not a part of
the contract embraced in writing."
In every case it should be held in mind that the parol evidence must
not be inconsistent with the written terms of the contract. It cannot alter,,
vary, add to, nor contradict the written contract. The evidence must not
change the intention of the parties as expressed in the written instrument,
but it may complete it or explain it.
124. Parol Evidence to Explain Obscure and Ambiguous Contracts. —
Contracts obscure or ambiguous may be made clear and the intention of
» Donlin v. Daedin, 80 111. 608 [18751 'Barker v. Troy, etc., R. Co.. 27 Vt. 766.
2 Centenary Church v. Cline (Pa.), 9 Atl. * Western Union R. Co. v. Smith, 75 111.
Rep. 163 [1887]. 496 [1874].
3 17 Amer. & Etig. Ency. Law 436; » Wood v. Moriarity (R. I), 9 All. Rep^
Duplanty v. Stokes (Mich.), 61 N. W. 427, 17 Amer. & En <?. Ency. Law 438.
Rep. 1015. 10 Tolman ®.Ward,^86 Me. 303 ; Miller ©.
4 Reason 'o. Kurz (Wis.), 29 N. W. Rep. McCay. 50 Mo. 214.
230. 11 Twonipy ?). Crowley. 137 Mnss. 184.
6QuMrry Co v. Clement, 38 Ohio St. 587. '^ j^^le, Bolles v. Sach (Miuu.), 33 N.W»
•Smith v. Aiken, 75 Ala. 209. Rep. 862 [1887], cases cited.
* See Sees. 603-629, infra.
§ 125.] LAW OF CONTRACTS. 113
the parties brought to light by oral evidence of the surrounding circum*
stances, the situation of the parties, the subject-matter, the acts, and even
the conversation of the parties under it.'
Whatever the nature of the writing, the object is to discover the inten-
tion of the parties as shown by the words they have used. To this end the
court may put itself in the position of the parties and view the surround-
ing circumstances, to see how the terms of the contract apply to the
subject-matter of the contract.^ Therefore, under a contract for employ-
ment of an engineer which is not clear as to the length of the term of
service, or the salary to be received, or the kind of work to be undertaken,
oral evidence is admissible to show the situation of the parties at the time
the contract was entered into, the surrounding circumstances — what posi-
tion the employee gave up to accept the employment, what duties his
predecessor had been required to perform, etc.^
Evidence of the acts, conduct, and declarations of the parties may be
given to show their understanding and practical interpretation of contract
when the language used by them is indefinite and obscure.'' Evidence of
such subsequent statements and conduct are only competent to show the
parties' understanding of it, and do not change its express terms.^ The
conduct has no doubt a great, if not controlling, weight in the interpreta-
tion of a contract,* but the statements and declarations of the parties are-
often excluded altogether, whether made before, at the time of, or after the
execution of the contract.^ Where a telegram and subsequent letters are a
part of the negotiations which led up to a contract for the purchase of
goods, they are to be construed together in determining the terms of sale.^
125. Parties may be Held to the Construction they have Themselves
Adopted. — Evidence may be received of the construction put upon previous
contracts of the same general character by the parties by their actions;*
and a subsequent contract with regard to the same subject-matter is
admissible to show how the parties understood the earlier contract/" The
construction of a contract adopted by parties will prevail." A promise of
' Caperton's Adm'rs v. Caperton's Heirs there is ambiguity. Davis?). Shafer, supm^.
(W. Va.). 15 S. E. Rep. 257. « White v. Amsden (Yt.), 30 Atl. Rep.
2 Shrewsbury v. Tuffts (W. Va.), 23 S. E. 972.
Rep. 693. •> Scraggs v. Hill (W. Vn.). 17 S. E. Rep.
3 Excelsior Needle Co. «. Smith. 61 Conn. 185; Garnsev v. Rhodes, 18 N. Y. Snpp.
56 [1892]; Marion School Tp. «. Carpenter 484 [1892]; 'but see Cnnningliam v. M. S.
(Ind.), 39 N. E. Rep. 878; Rogers v. & Ft. C. Tl. Co., w7iere evidence of converm-
Straub, 26 N. Y Supp. 1066; Rhodes v. tion of 'parties^ supplemental to contract was-
Cleveland Roll. Mill Co., 17 Fed. Rep. received ,- ayid see Bfivt v Thompson (Sup.),
406. 41 N. Y. Supp. 909.
* U Amer. & Eng. Ency. Law 578: Davis ^ Joseph v. Richardson. 2 Pa. Super. Ct.
r. Shafer (Cir. Ct.j. 50 Fed. Rep 764: En- Rep 208.
gel « Scott & Co. (Minn ). 61 K W. Rep. » People's Natl. Gas Co. v. Braddnck
825: Leavers v. Clearly. 75 111. 349 [1874]; Wire Co., 25 Atl. Rep. 749.
Lvon V. Motlev. 30 N. Y. Snpp. 218 ^o Brewster v. Bates, 30 N.Y. Supp. 780..
5 Potter V. Phoenix Ins. Co. (C. C). 63 " Rose v. Eclipse Carb. Co., 60 Mo. App.
Fed, Rep. 382. It is admissible only when 28.
114 ENOINEERINO AND ABCHITECTUBAL JURISPRUDENCE. [§ 126.
marriage may be inferred from the acts and conduct of the parties
towards each other/ A defective description of a boundary may be inter-
preted by evidence of the practical construction the parties put upon it
themselves/ The acts of the parties may be shown to indicate whether
side-tracks were to be computed as road under a contract at a price per mile
of road.'
AVhen there is a dispute as to which of two contracts is binding, the
parties may be bound by the one they have adopted. Thus when the con-
tractor insisted that the contract consisted of proposals duly accepted, and
the company claimed that the contract was an unsigned written construc-
tion contract by whose terms the work had been performed, it was held •
that the written contract should hold.*
The rules that a court in construing a doubtful provision of a contract
will follow the interpretation placed upon it by the parties does not apply
to contracts made by a municipal corporation in matters affecting the
public interests;^ and when a board of commissioners has entered in their
proceedings a contract, it is not error to exclude parol evidence of their
version of it.'
Testimony that the stipulations of a contract were the same as those on
a block of printed forms from which it had been taken, is inadmissible
unless it is shown that the witness compared the contract form with those
in the block.''
126. Witnesses Cannot Testify as to the Meaning of a Contract. — A
witness cannot testify touching the construction of a contract; if a ques-
tion arise as to its meaning, the question must be settled by the court.'
Evidence of the opinion of the parties to a contract as to its meaning, not
carried into effect by any act, will not govern its interpretation.' Parol
evidence is admissible to prove the existence of a written instrument, no
attempt being made to prove the contents thereof.^"
When there is a dispute between the parties as to whether the contract
was verbal or in writing, and the evidence is conflicting as to whether the
contract was verbal or in writing, the question is for the jury." The con-
struction of an ambiguous written contract is for the jury, and a charge as
to its meaning is error." Where there is no ambiguity in the terms of a
1 Button V. Hibbard (Sup.), 31 N. Y. ' International & G. K R. Co. -». Startz
Supp. 483; but see Yale v. Curtiss, N. Y. (Tex.\ 27 S. W. Rep. 759.
€t. of App., Feb. 1897. s The Alton, etc., R. Co. v. Northcott.
2 Kinirsland «. Mayor, etc., of K Y., 45 15 111. 49 [1858].
Hun (N. Y.). 198. 9 Shaw v. Andrews (C. C), 62 Fed. Rep.
3 Barker «. Troy. etc. . R. Co. , 37 Vt. 766. 460.
4 Mesrrath v. Gilmore (Wash.), 39 Pac. loSims^j. Jones (S. C), 20 S. E Rep. 905.
Bep. 131; and see Mobile <fe B. Ry. Co. -w. » Jones «. Sherman (Neb.), 51 N. W.
ISTorthington (Ala.), 10 So. Rep. 839 [1892]. Rep. 1036.
5 National Waterworks Co. v. School i^ Ginnuth t}. Blankenship & Blake Co.
Oist. No 7 (Cir. Ct.), 48 Fed. Rep. 523. (Tex. Civ. App.), 28 S. W. Rep. 828; Bloom
« Board t\ O'Connerdnd.), 35 KE. Rep. v. P Cox Shoe Manfg. Co. (Supp ), 81
1006. K Y. Supp. 517.
§ 129.] LAW OF CONTRACTS. 115
contract, it is the province of the court, and not of the jury, to determine
its meaning,* and where the terms are ascertained its meaning presents a
question of law only, and it is for court.''
It is the duty of the court to construe and determine the legal effect of
a written instrument offered in evidence and to instruct the jury thereon,*
and there is no ambiguity or conflict if the intention of the parties to a
written contract be intelligible upon the face of the instrument. Outside
proof of its meaning is not admissible, — its construction is for the court
alone.* Whether certain correspondence constitutes a contract, and its
proper construction as such, are for the court/
127. The Intention of Parties should Control. — In the construction of
instruments or contracts the first rule to be regarded is to follow the inten-
tion of the parties as gathered from the entire transaction, and by looking
at all the provisions of the instrument, and not one alone.
All other rules are subordinate to this one, and when they contravene it
they are to be disregarded. If the language of the contract is plain and
unambiguous, parol evidence is not allowable to ascertain the pretext of the
parties thereto. If it admits of more senses than one, it is to be interpreted
in the sense in which the promisor had reason to suppose it was understood
by the promisee." If the terms of the written contract admit of two mean-
ings, one of which nullifies the contract and the other upholds it, the latter
will be adopted and the former must be discarded.''
128. Rule against Parol Evidence Applies Only in Suits between the
Parties to Contract. — The rule that parol evidence cannot be given to con-
tradict or vary written agreements is limited to the piirties actually con-
tracting with each other by the agreement. It cannot be evoked by a stranger
to a contract.^ It is not excluded in suits between strangers to the written
contract, and a surety has been held such a stranger.' Therefore parol evi-
dence is admissible to establish a contract between a broker and his principal
though it may contradict or vary the terms of a written contract entered
into in pursuance thereof between the principal and the proposed pur-
chaser.*"
129. Contracts Obtained by Fraud or Duress. — Exceptions to the rule
1 Levy V. Kottman (Com. PI.), 32 N. Y. ^ Scanlan v. Hodges (C. C. A.), 53 Fed.
Supp. Ul. Rep. 354.
2 Fiulavson v. Wiman (Sup.), 33 N. Y. « Potter v. Bertbelet, 20 Fed. Rep. 34^
Supp. 347. [1884]; Root et al. v. Johnson. 36 Vt. 64..
3 Bell V. Keepers. (Kans.), 14 Pac. Rep. ' Saunders «?. Clark, 39 Cal. '299.
543 [1887]; Fidelity Title & Trust Co. v. » Coleman v Bank of Elmira, 53 N. Y..
People's Gas Co. (Pa.). 34 Atl. Rep. 339; 388 [1873]; First Nnt. Baiik v. Dunn (N.
Barnliill v. Howard (Ala.), 16 So. Rep. 1; J.), 37 Atl Rep. 908.
Woodburg G. Co. v. Mullikin (Vt.), 30 » 17 Amer. & Eng. Ency. Law 454: Cole-
Atl. Rep. 38. man v. Bank of Elmira, 53 N. Y. 388
* Campbell v. Jimenes (Com. PI.), 23 [1873].
K. Y. Supp. 333. 10 Barber v. Hildebrand (Neb.), 60 N. W.
Rep. 594.
116 ENGINEERING AND AUCHITEGTURAL JURISPBUDENGE. [§129.
forbidding parol evidence are those cases where the validity of the written
instrument is impeached as having been obtained by duress, menace, fraud,
or collusion, which, as is well known, vitiate all acts however solemn or
€ven judicial. To reject parol evidence in such cases would afford protection
to practices which it is the object of the law to suppress. A party cannot
avoid it by setting up his own fraud, nor can other persons claiming under
him,*
If a contrapt is attacked on the ground of fraud, parol evidence is admis-
sible to show the fraud." There must be an allegation of duress, collusion,
fraud, misrepresentation, or mistake, or the evidence must be offered to
prove the sarae.^ In the absence of such allegation, parol evidence will not
be admitted even in a court of equity.* Therefore a contract for the sale of
land cannot be varied by prior or concurrent verbal agreement as to what the
settler would do in consideration of the purchase;* nor when subscriptions
have been made to a common project, and the parties soliciting the subscrip-
tions have made parol representations to the effect " that men of great
wealth will be connected with the enterprise, that great benefit, collateral
improvements, and enhancement of the value of real estate will result,' or
"that certain materials will be used in the building;"' or "that the rail-
road to be built should connect with other railroads," though the route and
termini might be shown.* So in a lease it cannot be shown that the land-
lord made an agreement at the time it was executed to make improvements,"
or tliat, under a lease that was to be null and void and not binding on either
party if the lessee failed to pay his rent, it was intended to give the lessee
iin option to terminate the lease at his pleasure."
If the purchaser had alleged fraud, misrepresentation, or deceit, a court
of equity would doubtless have admitted the evidence, as was done in a case
where a tenant signed a lease of a farm upon the faith of the owner's parol
promise to destroy the rabbits infesting it;*' and in another case where an
inventor as an expert made false representations to a purchaser as to the
value, merits, and utility of an invention." There are cases to the pontrary
where misrepresentations as to the validity, value and utility are held mere
matters of opinion *' and therefore not fraudulent. Representations as to
' Best's Principles of Evidence. (Cham- ' Gerner v. Church (Neb.), 62 N. W.
"berlayne's ed.) 235. See Epigraph, Title Rep. 51.
page. 8 Low ??. Studebaker (Ind.), 10 N. E.
2 Grand Tower, etc., R. Co. v. Walton Rep. 301 [18871.
(111.). 37 N. E. Rep. 920. 9 Lerch 'o. Sioux City Time Co. (la.). 60
-' D.'louche V. Smith (Ga.), 10 S. E. Rep. K W. Rep 611.
438; Strong v. Waters, 30 N. Y. Supp. i» Hall ??. Phillips (Pa.), 30 Atl Rep.353.
64. n Morgan v. Griffith, L. R. 6 Exch. 70
^Brunson v. Henry (Ind), 39 N. E. [18711.
Rep 256; Groome v. Ogden City (Utah), ^^ jjicks v. Stevens (111.), 11 N. E. Rep.
37 Pac. Rep 90; Custean v. St. Louis Land 241 [1887]. And see note. Best's Chamber-
Co. (Wis.). 60 N. W. Rep. 425. Liyiie's Prin. of Evidence 230; Iowa Eco-
*Cnstean'(0 St. Lonis Land Co. (Wis.), 60 nomic Heuter Co. v. American, etc, Co.,
N W. Ren. 425. 32 Fed. Rep. 735.
• Poddock V. Bartlett, 68 Iowa 16 [1885]. i^ 8 Amer. & Eug. Ency. Law 636.
§ 130.] LAW OF CONTRACTS. 117
facts on which the valuation, merits, etc., are based are fraudulent if
false/
Misrepresentations by a nonexpert as to the legality of an instrument or
the legal effect of it are not in general regarded as fraudulent so as to
relieve one from the obligation assumed on the strength of such allegation/
If one is induced to sign a lease by false statements by the owner that
the building leased is JSt for certain purposes, evidence of the misrepresen-
tation may be received.* So when it is alleged that certain stipulations and
provisions were inserted in a contract by fraud, evidence of prior conversa-
tions between the parties is admissible.^ In general, when it can be shown
clearly and undoubtedly that certain oral representations, undertakings, and
promises, material to the subject-matter of a written contract, induced one
of the parties to put his name to it, they may be ajhown by parol evidence,
and the written agreement may be modified, explained, reformed, or alto-
gether set aside by such parol evidence." Such a case is a subscription con-
tract in which it was falsely represented that another person named had
made a similar subscription under the same conditions.^
130. Independent Oral Agreements. — It must not be taken that the rule
against showing a prior or contemporaneous parol agreement forbids parties
making separate written and parol contracts at the same time and as to the
same subject-matter. Any number of independent contracts each having its
own proper consideration may be made, some parol and others written, and
the parol contracts may modify, explain, vary, contradict, or multiply the
written ones. The parol agreement may form part of the consideration
of the written contract, or the written contract may form the considera-
tion for the contemporaneous parol agreement, if the oral agreement is
7iot inconsistent with the written agreement, and if there is evidence
that the parties did not intend the written contract to be a complete trans-
action.
When oral agreements are made at the time written contracts are entered
into, then they should rest upon a separate and distinct consideration; and
when they have been arrived at they should be regarded as distinct and col-
lateral agreements, and not a part of the written contract. Parol evidence
will be admitted of an oral agreement entered into subsequent to the writ-
ten contract if the oral contract is supported by a new consideration, and the
new parol agreement may become a substitute for the old one, or be an
addition to it. If the new oral agreement has taken the place of an earlier
written contract which has been lost, oral evidence may also be received t«
prove the terms of the written contract.
A parol modification of the terms of a written contract, which waa
iSAmer. & Eng. Ency. Law 636. ^Thudium v. Yost (Pa.), 11 All. Rep.
2 Myers v. Rosenbach,25 N. Y. Supp. 521. 436.
^VanAlstyne?). Smith, 31 N. Y. Supp. * Gerner v. Cburcli (Neb.), 62 N. W.
1277. Rep. 51.
118 ENOINEEBIN& AND ABGHITEGTURAL JURISPRUDENCE. [§ 13L
required to be in writing by the statute of frauds, cannot be shown in con-
nection with the written contract.
An interesting case, illustrating this rule, was a written contract for th&
sale of real estate. One of the provisions was, that a certain person should
survey the land. The services of this particular surveyor not being obtain-
able, a verbal agreement was made to procure another, who surveyed the landc
after which the grantor refused to convey the premises. In an action for
the breach of the written contract it was held that the verbal alteration
could not be shown, because such alteration reduced the whole written con-
tract to a mere verbal agreement for the sale of lands, upon which the stat-
ute of frauds provides that no action can be maintained.* However, this,
does not hold that certain terms of a written contract cannot be waived by
parol agreement.^ *
Oral evidence is admissible to show that the time of performance or
completion was extended or the date changed by a subsequent agreement,,
whether the contract be sealed or unsealed, or even within or without the
statute of frauds,' and it may be shown that the terms of a written con-
tract, even one within the statute of frauds, have been waived or dis-
charged.*
131. Subsequent Promises must be Founded upon a Consideration. — A
consideration without doubt is necessary to support such contracts to modify
or rescind a written contract,^ but it" is not to be understood that by consid-
eration is meant a money consideration. The court will, if possible, find a
consideration to support promises for extra work, extension of time, changes
in the plans, specifications, etc. If there have been changes by the owner,
these may afford sufficient consideration for an extension of time, or for
extra remuneration, even though the expense has not been increased. If
the contractor has found the work more difficult than he anticipated, it is
an easy matter for him to allege misrepresentation on the part of the owner
or his engineer or architect, and-" trump up " a, claim which, however triv-
ial, may afford a consideration for a new agreement on the part of tha
owner, it being impossible for the court to ascertain how sincere he may have
been in his claims or what value it may have had at the time." So when
a building fell before it was completed, it being disputed as to whether it
was the contractor's or owner's fault, it was held that the question of doubt-
ful liability was a sufficient consideration to support a new promise by the
owner.'f
^ Dana v. Henry, 30 Vt. 616 [1858]. 444.
=^Hill«. Blake, 97 K Y. 316; 17 Amer. « Hart v. Launmnn. 29 Barb. (N. Y.)
& Eng. Ency. Law 448. 410; Osborne v. O'Reilly, supra; Holmes:
» 17 Amer. & Eng.Ency.Law 449; Luck- v. Doane, 9 Cush. 135; Wilffus v. Wliite-
art V. O^den, etc., 30 Gal. 547; Morrill v. head, 6 W. N. of C. 537; Cooke v. Mur-
Colehour, 82 111. 618. pby. 70 III. 96 [1873].
* 17 Amer. & En£^. Ency. Law 449. 'Brodeck v. Farnum (Wash.), 40 Pac.
'Bruce v. Brown (Tex.), 25 S. W. Rep. Rep. 183.
* See Sees. 559-564, infra. f See Sec 563, infra.
r
§ 131.] LAW OF CONTRACTS. 119
Where a contractor was under a penalty (liquidated damages), to com-
•plete work, it was held that under a release of the contractor from the con-
tract, a promise to pay for day labor, by the owner, was supported by the
fact that the contractors could have abandoned the contract by paying the
penalty, and they had incurred a detriment by keeping at work, which they
were not obliged to do.
The consideration may be found in the mutual promise to annul certain
terms or to rescind the whole agreement and to then enter into a new parol
agreement, the agreements on the one side to rescind being the considera-
tion for the agreement to rescind and the new undertakings on the other
side. That no new and extraneous consideration is necessary in ordinary
construction contracts has been frequently held,* though there are cases to
the contrary.
* See Sees. 69, supra, and 560-563, infra.
PART II.
BIDS AND BIDDERS.
CHAPTEK VI.
THE EIGHTS AND LIABILITIES OF BIDDERS FOR PUBLIC WORK.
THE ADVERTISEMENT, INSTRUCTION^ TO BIDDERS, AND FORMS FOR PRO-
POSALS. FORMALITIES, REQUIREMENTS, AND RESTRICTIONS IMPOSED ON
BIDDERS.
132. Mode of Entering into Construction Contracts. — In treating the sub-
jects of construction and construction contracts it will not be necessary to
go into the preliminaries of organization of companies, or of securing charters,
or floating the stock. These are affairs that usually have been attended to
before the engineer, architect, builder, and contractor are called upon to
lend their assistance. When the company has been created and the privi-
leges, permits, grants, or franchises have been obtained, it is then that the
services of the industrial element are sought.*
When an owner or company contemplates the erection of works large
enough to require the services of an experienced and skilled mechanic, it is
a general practice in this country to invite contractors to make offers or
proposals to do the work required at a price named. The invitations are
something private, and sent to such persons only as the owner or company
may desire to do business with ; or they may take the character of public
solicitations, or advertisements for proposals.
The instructions, explanations, and statements of the terms and specifi-
cations attending such negotiations are frequently of considerable impor-
tance and compass, which parties to the contract and their agents should
understand. The acts and ceremonies attending these negotiations arise
from the desire of the owner or proprietor to retain the privilege of creating
and completing the contract.
The letting of a large construction contract does not differ greatly in
* The engaging and retaining of the professional services of the engineer or
architect, and the relations and duties created by their contract of employment, will be
discussed in a later chapter. See Part IV., Sees. 800-900, infra.
120
§ 132.] BIBS AND BIDDERS. 121
principle from the bartering and selling of every-day life. Before two
parties can enter into a contract they must come to terms, that is, they must
have a common u::derstanding of the terms of their agreement.* This is
essential to a binding contract. The usual way of entering into a contract
is by one party stating certain terms and the other party assenting, both
parties agreeing to be bound by those terms. The formal declaration of an
iigreement to abide by the terms proposed is not necessary. When the
statement of terms takes the form of an offer, and the assent that of an
acceptance of those terms as made, within a reasonable time or before the
offer is recalled, such offer and acceptance constitute a binding contract.
This fact, that a contract can be created by the simple act of accepting an
offer, has been a prime factor in establishing the ceremonies that precede the
execution of a construction contract. Neither the proprietor nor the con-
tractor, the seller nor the buyer, desires to make the initial offer. Each
wants to make an agreement or bargain which is to his best interest, and
whoever makes the offer sacrifices his chance of getting anything better
than he himself has offered. If his offer is accepted, the contract is com-
pleted; while the party to whom the offer was made may decline and solicit
other offers. In every-day business affairs this giveS rise to fencing and
sounding to determine who shall commit himself to the terms of an offer.
If it be a horse to sell, the seller will want the purchaser to make
him an offer, and the buyer will want the seller to name a price. The
buyer wants to buy at the lowest price, and he knows that if he
make an offer it may be accepted, which closes the bargain, and he may have
paid more than he need to have paid had he known the min^d of the seller.
The same principle prevails in larger transactions, but there are several
bidders usually for each contract. Proprietors having work to be performed
insist upon receiving offers instead of making them. This is eminently
just, for it requires the party to prepare and make the offer who is best
qualified to undertake it. A skilled mechanic with a large experience in
contracting and building can certainly better determine the proper cost of
an undertaking, and should therefore be the one to offer terms by which he
will undertake the execution of a contract for such work. Under these con-
ditions the present system of inviting proposals has become universal. PrO'
prietors and corporations having work to be done have found it to their
advantage to insist that it is their just privilege to invite offers or proposals,
not from one contractor but from several.
By announcing that several proposals will be received, and that the pro-
posal will be accepted which is most advantageous to the proprietor, con-
tractors desirous of securing the work are induced to make close estimates
and thus give to the party inviting the offers the benefit of competition.
The contracts for all private works of im.portance, and for nearly all publio
* See Sees. 88-98, supra.
122 ENQINEEBING AND ARCEITECTUBAL JURISPRUDENCE. [§133.
works are entered into only after these preliminary negotiations. The invi-
tations to make offers is called the advertisement for proposals; the offer
itself is called the proposal, tender, or hid; the acceptance of the offer is the
, awarding of the contract, and the completion of the ceremony.
The fact that a proposal or bid is but an offer should not be lost sight of
however much it is enshrouded with instructions, restrictions, and condi-
tions, and that the advertisement is not in general an offer, but an invita-
tion to contractors or builders to make offers/
The act or charter of many public organizations requires that the work
be advertised and proposals solicited from the public.
The advantages of this system of letting work are twofold. (I) If
honestly carried out by both parties, it gives to the owner the benefit of close
competition, and (2) the privilege of accepting the proposal if the offer is a
good one, or of declining it if it is unreasonable. By inviting proposals the
owner retains the privilege of assuming the contract obligation to himself,
while the contractor in making the proposal may have the obligation of a
contract imposed upon him by the mere acceptance by the owner of his
offer in the same terms in which it was made. An offer plus an acceptance
makes a contract, the obligation of which cannot be escaped. An offer r-iay
be recalled or revoked at any time before it is accepted, but not afterwards.
To prevent bidders from recalling their offer, bidders are usually required
to accompany their proposals with a certified check, which is forfeited if the
offer i& revoked.
The advantage of competitive bids for work cannot be overestimated if
they are honestly made and the contract conscientiously awarded to the
lowest responsible bidder. • •
To get such proposals as can be compared they should one and all be
made from precisely the same data, and. with the same means afforded to
all for observation and study. A word or a wink that tends to give one con-
tractor the advantage over another is an evil practice that undermines the
whole system, and is an injustice to the owner and to all the other bidders. If
discovered, it affords a ground for attacking the contract awarded upon such
a bid, and may result in the contractor losing all that he has earned.
133. The Advertisement or Notice to Bidders— Invitation to Contractors
and Bnilders to Make Proposals.
IMPROVEMENT.
PROPOSALS FOR BUILDIN^G
Engineer's Office,
" ■ ' .... Broadiuay, New York Cityy
, 189..
"Sealed Bids [or Proposals] for the construction or erection
or for furnishing all the labor, tools, appliances, etc., and materials
necessary to build, to erect, and to do all the , and to com-
» Lloyd's Law of Buildings (2d ed.), § 56; Forster v. Ulman, 64 Md. 523.
§ 134.] BIDS AND BIDDERS. 123
plete a certain .... [name of structure or work] .... at Or Oil .... [name of way or
stream] ill the town or city of , county of , state of
, are invited, and will be received at the office of ,
engineer or architect, or at the office of the Board of Commissioners of
the Public Works, City Hall, city of , state of , until
o'clock M. of day of the week the ... . day of ,
189. ., at which place and hour the bids will be publicly opened and
read
" The bids will bf? compared on the basis of the engineer's estimate of
the materials and work to be done, which is as follows:
Items, \^ct\ [^] [c] , etc.
" The work is to be commenced within days after the execution of
the contract, and to be continued with regularity until completed, which
must be before the day of , 189 . ,
" The amount of the bond required for the fulfillment of the contract
will be the sum of . . .thousand dollars"; or, "The security required for
the fulfillment of the contract will be ... . per cent, of the contract price."
" The contract will be awarded to the lowest responsible bidder with-
out reserve"; or, " The right to reject [any and] all bids is reserved
if the engineer, architect, commissioners, or board shall deem it for the
best interests of the company, city, or state.
" General instructions for bidders, blank forms for proposals, plans and
specifications and contract forms, and all other necessary infoirnation
may be had [or obtained] at the office of the engineer or architect,
Street,
" Signed
"Dated "
134. The Form of Advertisement to be Adopted. — In adopting the forms
here presented for the letting of construction contracts the author has
adopted what seems to be a rational subdivision, and one that does not depart
materially from established forms in use on public works. Advertising
is expensive, and neither individuals, companies, nor the government can
afford to publish full and explicit instructions to bidders in the general or
technical periodicals. The advertisement need, therefore, contain only
general information such as shall enable a contractor to determine if he
would like to undertake the work. It should describe the character of the
structure, work and materials required, its location, the magnitude of the
undertaking, when it must be commenced and when completed, the amount
of security required, whether or not the lowest bid will be accepted without
reserve, the last day on which the bid will be received, where further infor-
mation may be secured, and who are the parties that invite proposals; and if it
be public work, the attention of the bidders should be invited to the act of
congress or of the legislature, or to the ordinance, under which, or by virtue
of which, the work is undertaken or authorized or by which it is controlled.
This information is ample to advise a contractor whether the job is
in his line, whether it is within his capacity as to the execution of the work
in the time named, whether he can furiiish bonds and has time to make a
careful estimate, and finally, whether he will compete for and undertake
124 ENGINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 135.
the work offered by the parties, and under the supervision of the engineer or
architect named. These facts determined, the contractor will apply for and
receive full instructions for bidders.
When the law provides that the terms of all contracts shall, before tliey
are entered into, be approved by the board of estimate and apportionment,
and another section provides that the commissioner shall have power to
make contracts on certain conditions, and provides that he shall advertise
for proposals to perform the work " in such manner and on such terms and
conditions as he may prescribe," the '"terms and conditions " referred tO'
in the latter section are merely those which the commissioner deems it
necessary to put in the proposals, and not the terms and conditions of tho
contract, but that the tetrms and conditions of the contract to be made must
be approved by the board of estimate and apportionment/
135. As Regards the Advertisement or General Notice to Bidders. — In the
absence of special requirements, boards of commissioners have authority
to designate the official newspaper in which advertisements and notices shall
be published, but such designation cannot continue for a longer period than
their term of office, so as to bind their successors in office.'
The requirements of a statute prescribing the mode and time of advertis*
ing for bids are mandatory, the compliance with which is a condition prece-
dent to the power of a municipality to enter into a valid agreement in respect
thereof. ^ If it be required by statute, ordinance, or resolution that the ad ver-
tisement be published in designated newspapers, the contract will be invalid
if it is not published in all such papers and strictly as required by law or
ordinance." It has been held, however, that when the statute requires work to
be advertised in a newspaper for three weeks, but the ordinance of the city
ordering the improvement provides for publication in two papers, tliat the
proceedings are not rendered invalid because it was advertised in only one
newspaper ; ' and a certificate of publication stating a thing has been pub-
lished "five times" does not show that the statute requiring it to be pub-
lished for five successive days was complied with." When the paper desig-
nated suspended after three publications of the four required, a publication
in another paper for the remaining week was held insufficient ; ' and where the
designated official paper had ceased to be the official paper before the last
insertion of the notice, the notice in it was held insufficient.' If it is pro-
vided that notice may be given by posting in lieu of publication in a news-
paper, an insertion in a newspaper for a time until the newspaper is sus-
pended, and a posting for the balance of the time, is insufficient;" but where-
1 People V, Waring (Sup.), 39 N. Y. 107; 16 Amer. &Enfr. Enov. Lnw 821.
biipp. 193; Lynch v. Mayor, etc., 37N. Y. ^Connersville v. Merrill [liid. App), 4'i
bupp. 798, distinguished. K. E. Rep. 1112.
' Slielden v. Fox (Kan.), 29 Pac. Rep. « ciiandrer 'd. People (111.), 43 K E. Rep.
=*MeCloud v. City of Columbus (Ohio "^ Townsend v. Tjillant. 33 Cal. 45.
S«Pj. 44 N. E. Rep. 95. «BMsey v. Lnvitt. 12 Me. 378.
•*Taylor v. Lambertville, 43 N. J. Eq. ^Falkner?; Guild, lu Wis. 563.
§ li^O.] BIDS AND BIDDERS. 125
the designated paper was merged into another, taking the name of the latter,
it was held sufficient/ If certain public officers are required to designate the
papers in which notice shall be published, and they fail to do so, a publica-
tion in all the papers from which they could have selected is good.'
When an officer has discretion he may designate a paper not published in
the state.^ If the notice is to be published in a newspaper, it should be a
secular paper of general circulation, printed in the English language and on
a week-day. If printed in a supplement to a newspaper, it should have the
same circulation as the newspaper itself.* A mere advertising-sheet has been
held not a newspaper.*
The place of publication is not where a newspaper is printed, nor where
it is sent for distribution, but where it is first given to the public for circu-
lation." A requirement that the notice be inserted in a paper " printed " in
the county is not complied with by inserting it in one " published " in
the county, but "printed" elsewhere.^ A " city paper " must be published
and circulated in the city,*
If it is required that printed notices be posted up, a publication in a
paper is not sufficient.* A court-house and a schoolhouse have been held
public places, but it seems not necessarily "conspicuous" places." If the
charter or act require that a notice be published for a certain length of time,
and the period of publication is one day short of that required, it will
be fatal to all subsequent proceedings.**
If the statute require that the work be advertised for a certain period
prior to the letting of the contract or to the opening of the bids, the failure
to so advertise will invalidate the award."
A mistake in an advertisement that is unimportant does not vitiate the
proceedings so as to require a readvertisement for proposals, in the absence
of any allegation that any one would have bid more than was bid if the
error were not made. It was so held when three of four newspapers
printed correctly tlie date on which the proposals were to be received,
while the fourth paper named a day and date that was impossible."
Authority by a city council to a clerk to issue a notice for bids is not lost
because the clerk made a mistake in his attempt to publish it, if there is no
evidence that any one was misled or harmed thereby." When the charter
»Sage V. Central R Co., 99 U. S. 334. '* ji^ Pennie, 108 N. Y. 3641; Burke v.
2 State V. Gloucester Co., 50 IST. J. Law Turney, 54 Cal. 486: and see Baltimore v.
685; and see Vqo^Xq v. Chill (Sup.), 39 N. Keyser md.), 19 Atl. Rep. 706, in which
Y. Supp. 372. case a bid was accepted wliich was re-
3 Mopley V. Leophart, 51 Ala. 587. ceived six minutes past the time, and one
*16 Amer. & Eng. Ency. Law 822. properly deposited was rejected because
* Tyler t). Bowen, 1 Pittsb. 225. the officer to whom it was delivered was
^ Le Roy v. Jamison, 3 Sawy. <U. S.) 269, late. See also People «. Yonkers, 39 Barb
•' Bragdon v. Hatch, 77 Me. 433. (N. T ) 266.
8 Haskell v. Bartlett, 34 Cal. 281. '^ Appeal of GilfiUan (Pa), 22 Atl. Rep
« Kretsch v. Helin, 45 Ind. 438. 593.
^0 16 Amer & Eng. Ency. Law 820. ^^ Gilmore :3.Utica (N. 7.), 29 N. E. Rep.
" State ?5. City of Bayonne(N. J.), 8 Atl. 841.
Eep. 295 [1887].
126 ENOINEEBINQ AND AECfflTECTUMAL JURISPRUDENCE. [§ 136.
requires that " a special ordinance ordering the work to be done shall be
passed before a public improvement is made, and a general ordinance has
been passed which declared that the council shall order the construction
of the improvement proposed, and directed the engineer to advertise for
bids therefor,^' it was held that the fact that bids are advertised for before
the special ordinance is passed will not invalidate the proceedings/
Usually all preliminary acts and resolutions are held conditions prece-
dent to taking final steps to letting the contract.''
The posting of a notice from 9 o'clock a.m. of the first day and which
remained posted until 4 o'clock p.m. of the fifth day was held to have been
posted five official days.^ An advertisement stating that bids would be re-
ceived up to a certain hour on Saturday, September 19, 1875, when the 19th
was Sunday, was held an unimportant mistake, the notice being otherwise
sufficient as to time.*
When it is required that the board of public works should advertise, an
advertisement issued from the office of the board signed by its president,
and stating that a satisfactory bond must be filed with the board, was held
sufficient.^
136. Instructions to Bidders— Work is Undertaken by What Authority
and under What Restrictions.
PUBLIC WORKS,
IMPROVEMENT.
PEOPOSALS FOR BUILDIN^G
Engineer's Office,
.... Broadway, New York City,
, 1897.
GENERAL INSTRUCTIONS FOR BIDDERS.
"This work is undertaken by virtue of (or in accordance with, or in
obedience to, or to conform to, or to comply with) ordinance ,
(act of legislature, the act of incorporation , or
under the charter of the city of , or the company, or acts of
congress) approved the day of , 189. ., under which act (or
charter, or ordinance) this improvement is undertaken, and to which
the attention of bidders is especially invited.
" The attention of bidders is also invited to the acts of congress
approved 1885, as printed in Vol. 24, page 414, U. S. Statutes at Large,
which prohibits the importation or immigration of foreigners and
aliens under contract or agreement to perform labor in the United
States or territories or the District of Columbia.
" The attention of bidders is especially called to the provisions of
legislative act, chapter 277, Laws of New York of 1894 ; and act chapter
413, Laws of New York of 1895, relating to the dressing and carving of
' City of Springfield v. Weaver (Mo. Rep. 794.
Sup.). 37 S. W. Rep. 509 ; Keane v. Gush- ^ Kueeland v. Furlong, 20 Wis. 437.
inff, 15 Mo. App. 96, disapproved. * Case «. Fowler. 65 lud. 29.
2 Corsicana v. Kerr (Tex.), 35 S. W. ^ Beniteau v. Detroit, 41 Mich. 116.
§ 138.] BIDS AND BIDDERS. 127
stone used in New York state work; and also to the provisions of act
chapter 622, Laws of New York of 1894, relating to the hours of labor
and rate of wages, and to the employment of citizens of the United
States."
137. Necessity for Restrictions and Regulations. — Public work is usually
authorized by an act of congress or of the legislature of the state, or is
undertaken under a charter or franchise bestowed by the government.
The fact that it is public work implies that it is for the benefit of the pub-
lic, and that public interests are involved which must be protected.
To secure competition and prevent combinations and conspiracies tend-
ing to favoritism and to defraud the people and the government, it is there-
iore usual to incorporate into the act or charter a clause requiring the work
to be advertised, bids solicited, and the contract awarded to the lowest
(responsible) bidder.
138. The Requirements of the Act or Charter are Imperative. — When
such an enactment has been made, it is not directory merely, but it is
imperative in the requirement that specifications shall be prepared and
published, the work advertised, and the contract awarded to the lowest
bidder.* The law is interpreted strictly, for when in an act the legislature
-declares that a board of public works "may" advertise for proposals, etc.,
it has been construed to mean that they "shall" advertise for proposals;'
but in another case under a statute which provides that a board shall have
•control of the construction of improvements, and that it may advertise for
proposals and may accept or reject any proposals, it was held discretionary
with it to advertise or not as it might elect." *
When there are two sections to an act, one of which provides that the
board of supervisors "must" contract for publishing the delinquent tax list
with the lowest bidder after ten days' notice of the letting of the contract,
find the other requires the tax collector to publish the delinquent list by a
•certain date, it was held that, on failure of the supervisors to contract for
publishing the list, the tax collector was not authorized to do so.*
Under an act which gave an election to commissioners either to carry on
the works by their own engineers and with labor employed and materials
furnished by themselves, or to let out the whole or parts of the work by con-
tract to the lowest bidder after advertising in the newspaper for proposals,
it was held that, the commissioners having elected to let the work out by
the latter method, they must give it to the lowest bidder, and a contract
-awarded to one who was not the lowest bidder according to the terms and
1 Beaver v. The Trustees, 19 Ohio St. 97, 25 K Y. Supp. 50, 5 Misc. Rep. 36; and
and cases cited; Dallas t). Ellison (Tex.), Santa Cruz Co. v. Heaton (Cal.), 38 Pac.
^0 S. W. H' D. 1128; Greene v. New York, Rep. 693; Smeltzer v. Miller (Cal.), 45
1 Hun ^N. Y.) 24. Pac. Rep. 264.
2 McBrian v. Grand Rapids, 56 Mich. 95. * Smeltzer v. Miller (Cal.), 45 Pac. Rep.
3 Fitzirerald v. Walker (Ark.), 17 S. W. 264.
Rep. 702 [1891]; and see People «. Buffalo,
* See Sees. 50-55, supra.
128 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 138.
specifications advertised and proposed, was unauthorized and void/ Wlieit
commissioners, by a single vote, have once elected the manner in which work,
shall be done, their power of designation is gone.'' Bids for public work need
not be invited unless it is expressly required by statute, charter, or ordi-
nance.^ The provisions of a city charter requiring contracts to be made upon
advertisement and sealed proposals have been held not to apply to contracts,
by the commissioner of public works for public work authorized by special
enactment.* The improvement of a public park belonging to a city has-
been held not a public improvement within an act requiring the city to ad-
vertise for bids for work and materials for public improvements.^ If the
provisions of the law be not carried out, and a contract be awarded in a.
manner contrary to the express requirements of the statutes and charters of
the city or company, the irregularity may be set up as a defense to the-
action on the contract.'
Contracts by a municipal corporation, a county, or the state must ba^
within the act creating them and within the privileges and powers of their
charter, constitution, or organization, or they are void, and the contractor may
recover nothing for his labor and materials. The statutes are obligatory and.
not merely directory.''
If work has been done under a contract which is void for having been
entered into in violation of an express provision of the statute law or the-
charter, constitution, or ordinance, the contractor cannot recover for the
work done or the materials furnished: not on the contract, because the
contract is void, which is equivalent to saying there is no contract; and not
on an implied contract or quantum meruit, because there is nothing from
which to imply a request to do the work except in the manner required by
law; or by request of the public officer who assumed to make a contract
which is null and void, not having the necessary authority.® *
The requirements of the act that, before the awarding of any contract for
any work authorized by the act, the city council shall invite sealed proposals,,
and shall award the contract to the lowest bidder, apply to every contra'ct
authorized by the act, irrespective of the character of the work to be done,
or of the mode in which the expense is to be paid.' If the charter provide
that no contract shall be made for any public work, or for any supplies for
' Dickinson v. City of P., 75 N. Y. 65 » Walsh «. Columbus, 36 Ohio St. 169.
[1878]; Bigler v. Mayor of N. Y., 5 Abb. « Many cases cited in 15 Amer. & Enff.
K. Cas. (N. Y.) 51. Ency. Law 1091.
2 Bigler v. Mayor of N. Y., 5 Abb. N. ' Evans on Agency 211, 212; 15 Amer.
Cas. (N. Y. ) 51; accord People v. Board of & En^. Ency. Law 1084-5 and cases cted ;
Improvement, 43 N. Y. 227. Young v. Mayor of Leomington. L. R. 8=
^Cummings v. Seymour, 79 Ind. 491; App. Cas. 517 [1883]; and see Smith v.
Kingsley v. Brooklyn, 5 Abb. N. Cas. (N. New York (Sup.). 31 K Y. Supp 783.
r.) 1 ; Yarnold «. Lawrence, 15 Kans. « Bonesteel v. Mayor, 22 N. Y 162 ; and-
126; hut see Adamson v. Nassau Electric many cases in 15 Amer. & Eng. Ency. Law
R. Co. (Sup.) 33 N. Y. Supp. 732. 1085.
* Greene v. Mayor of N. Y., 60 N. Y. » Santa Cruz Rock Pavement Co. ©..
S03. Broderick (Cal.), 45 Pac. Rep. 863.
* See Sees. 50-53, supra.
§ 139.] BIDS AND BIDDERS. 12^
the city, and no such work or furnishing supplies shall be commenced, until
the contract therefor has been approved by the council, all contracts must
be submitted to the council for its approval or disapproval, without regard
to auxiliary and supplementary powers to contract conferred upon commis-
sioners, boards, and other officers/
It is imperative that a contractor exercise every precaution to have the
contract in accordance with the law, for although the city officials may
be honest and honorable, and the city be inclined to meet his just claims, yet
any person interested, as any taxpayer, can object and have mandamus issue
against the city to prevent a recovery for anything that has been done under
an illegal contract.*
139. Instructions Should Give All Necessary Information to Bidders. — Any
irregularity in the proceedings directed by the act or charter by which the
work is authorized to be observed may avoid and destroy the contract.
Therefore when public work is required to be let to the lowest responsible
bidder upon notice of the work or material required, such notice should give-
all the necessary information to enable parties desiring to bid to make
estimates. Resort cannot be allowed to mere verbal explanation to ascertain
substantially all that is contemplated to be done, as tliat might lead to favor-
itism and other mischief intended to be avoided by the statute.*
If a charter provide that before proceeding with any proposed public
improvement the detailed estimates of the costs of such work or improve-
ments shall be made, and if the city ordinance provide that the owner
is entitled to notice of the intended improvement, a contract made without
any estimate of the cost and without proper notice of the improvement
is illegal and not binding. The proceedings are void, and the collection of
a tax levied to pay for the improvement may be properly enjoined.' If the
act or charter requires public notice of proposals and that the contract be
awarded to the lowest responsible bidder giving adequate security, and
security be furnished by the lowest bidder, any contract not in strict compli-
ance with the law or charter is unauthorized and void." f If the act requires
that a certain number of days' notice be given of the time for the bids, it is
mandatory and must be complied with.^ The illegality can be pleaded in
defense to any action on a contract which has not been made strictly aa
required by the law.'
^ Common Council of Detroit v. Public ^ Boerd v. Gillies (Ind.), 38 N. E. Rep^
L. Comm. of Detroit (Mich. ), 59 N. W. Rep. 40.
654; People v. Waring (Sup.), 39 N. Y. « Dillon's Muuic. Corp'ns, § 466 (4tli
Supp. 193; an<^ .see Al ford D. Dallas (Tex.), ed.), and cases cited; McDermott v. Board
35 S. W. Rep. 816. of Jersey City, 28 Atl. liep. 424; Sliaw v.
2 Littler v. Jayne, 124 Ills. 123 [1889]. Trenton. 49 N. J. Law 339; State v. Cun-
3 Mills «j. City of Detroit (Mich.), 54 N. ningham (Neb.). 59N.W. Rep. 485; Heidle-
W. Rep. 897. burgh v. St. Francis Co , (Mo.), 12 S. W.
4 In 7-e Eager, 46 K Y. 100; Maxwell v. Rep. 914 [1889]; Littler i) Jayne, 124 Ills.
Stanjlaus, 53 Cal. 389; People v. Gleason, 123 [1888]; Dickinson v. Pouurhkeepsie, 75
, 121 N. Y. 631 [1890]; Smith t>. Mayor, 10 N. Y. 65 [1878]; Davenport v. Klien.-
N. Y. 504. schmdt, 13Pac. Rep. 249 [1887].
* See Sees. 177, 178, infra. \l6e6 Sees. 133, 134, sujyra.
130 ENGINEERING AND AUCHITECTURAL JURISPRUDENCE. [§ 140
When tlio statute required "good and sufficient security for the perform-
:ance of the work." a contract given to the lowest bidder without requiring
■**good and sufficient security" is not legal, and the contractor cannot
recover for the work when done, it not having been accepted or used/ The
neglect to insist upon security is not material where the charter provides for
" good and sufficient security, as required by said board," it not appearing
that the board required any security.'^
Wiien the laws require that certain work be let or franchises be sold, such
statute requires that the transaction be on a cash basis or for cash, and an
offer to pay percentage of the gross receipts, or to do or provide any other
4;hing, in consideration of such a franchise, cannot be considered/
140. There Must be Competition, in Compliance with the Statute or
'Charter. — The power of the city to make contracts is limited and can only
be exercised in the manner prescribed. There must be competition before
a contract can be awarded."
If a charter provides that the contract be given " to the lowest responsible
bidder giving adequate security," officials authorized to let the contract may
not arbitrarily reject the lowest bid and accept a higher bid without facts
justifying it ; there must be facts tending to show that the lowest bidder was
not responsible, or at least some pretense to that effect.^
Canvassing by the engineer, or permission by him to the contractor to
alter the bid where the proposals have been referred to him for calculation
and comparison, or any acts by which one bidder who was not the lowest
bidder is made to appear the lowest. Will render the contract void and unau-
thorized.' The making of a contract at different prices, and according to a
different classification of the kind of work, and with new and material clauses
inserted, which were not offered to the other bidders, will destrov theoblisra-
tions of the contract and render the contractor's rights thereunder null and
invalid. He cannot recover for what his work is reasonably worth.
A contractor should insist upon the contract being executed in the same
terms and according to the plans and specifications upon which he has made
his bid, and whether to his favor or detriment should be no excuse for his
not requiring it. ^ Engineers and commissioners will realize the great detri-
ment they may cause their favorites and friends by seeking to benefit them
or favor them to the exclusion of other competitors. The law is well settled,
and anything which does not fairly and fully satisfy the requirements of the
statute, and does not secure to the state or city the full benefits of the com-
petition which is sought, may render the contract void and not binding upon
the city.'
1 Mackey v. Columbus (Mich.), 38 N. [1887].
W. Rep. 399 [1888]. * People v. Gleason, 121 N Y. 631 [1890].
2 Carey v. East Saginaw (Mich.), 44 N. * Dickinson v. City of Poughkeepsie, 75
W. Rep. 168. N. Y. 65 [1878]; Smith v. Mayor. 10 N. Y.
^ Thompson v. Board of Sup'rs (Cal.), 44 504.
Par. Rep 230, ' Dickinson t). City of Poughkeepsie, 75
4 Shaw V. Trenton, 49 N. J. Law 339 New York 65 [1878].
§ 141.] BIDS AND BIDDERS, 131
141. Public Officers cannot Legalize nor Ratify Void Contracts. — Such
contracts are not merely voidable ; they are void and cannot be made valid
by subsequent acts of the city or its officials.' Nothing is added to the
legality of a claim under such a contract by the common council auditing
and allowing it, for they have no jurisdiction so to do.' Though the
contract was let to one who was apparently, but not in fact, the lowest
bidder, it cannot be made binding upon the city by acceptance of the
materials or by ratification by an officer or otherwise, except in the form
prescribed by law." Nor does the auditing of such a claim by the board of
audit stop the city from denying liability on the ground of fraud in the
making of the contract.* A contract let when the appropriation for the
work was insufficient, is not ratified by a subsequent appropriation.'
Where .the charter requires that, before any improvement shall be
commenced, the city council shall pass a resolution ordering the same to be
done, the council cannot, after the improvement has been completed, pass
an ordinance ordering the same to be done, so as to render an assessment
therefor against the property owners valid.' And when an act provides
that "no person shall be employed or permitted to teach in auy of the
public schools of the state, * * * who is not the holder of a lawful
certificate of qualification or permit to teach, any contract made in
violation of this section shall be void "; it was held that where a teacher
is employed who does not hold a certificate, the subsequent procurement of
such certificate does not render the contract of employment valid.^ If a
city charter provides that a city is not bound by any contract unless author-
ized by an ordinance and in writing, officers of the city cannot bind it by a
contract not in writing.^ A re-awarding of the contract by the common
council over the veto of the mayor and without any question or objection
that the lower bids were formed and made by responsible parties, does not
make it any more valid."
When contracts are required to be let to the lowest responsible bidder
and approved by the governor, and an act makes the payment or acceptance
of money for refraining from bidding a misdemeanor, and the criminal
code imposes a punishment for a conspiracy to prevent bidding, a letting
to a firm, which is formed for the purpose of preventing bidding, some of
whose members have been paid by the others for refraining, is void, not
1 Dillon's Miinic. Corp'ns (4th ed.), § N. Y. Supp. 688.
466. and. casos cited ; Noel v. San Antonio • ^Nelson v. City of New York, supra.
(Tex.). 33 S W. Rep. 263 ; Santa Cruz ^ indianapol s v. Wann (Ind.), 42 N. E.
Pav. Co. «. Broderick (Cal.), 45 Pac. Rep. Rep. 901.
8G3. « Buckley v. City of Tacoma (Wash ),
2 Peoples. Gleason, 121 N.Y 631 [1890], 37 Pac. Rep. 441; and see Ellis i). Cle-
distinguishinq E. R Gas L. Co. v. Don- burne (Tex), 35 S. W. Rep 495.
nelly, 93 N. Y. 557; Arnot v. Spokane ' H-smer v. Sheldon School Dist. (N. D.),
(Wash.), 33 Pac. Rep. 1063; Com'rs v. 59 N. W. Rep. 1035.
Boyle, 9 Ind. 296, and note, 68 Am. Den. ^ Arnot v. City of Spokane (Wash.). 33
293, and 4 Amer. & Eng. Encv. Law 364. Pac. Rep. 1063.
3 Nelson v. City of New York (N. Y. ^ Peoples. Gleason, 121 N. Y. 631 [1890].
App.), 29 N. E. Rep. 814; affirming 5
132 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 142.
being a letting to the lowest bidder within the meaning of the constitution,
and although the contract is approved by the governor and bv an expert
printer appointed under the act, and within the maximum price fixed by it.
An answer setting up a combination in the form of a firm to prevent com-
petition in bidding, that the bids were made and contracts entered into
pursuant to that purpose, and that certain of the conspirators j)aid certain
others for entering into the combination, is sufiiciently specific on general
demurrer; the presuriiption arising from such facts that the conspirators
would otherwise have competed at the bidding. The state is not estopped
by acts of the commissioners of public contracts done on the faith of the
validity of the letting prejudicial to the firm/
142. The Legislature may Ratify Contracts. — The legislature may ratify
.a contract entered into by a municipal corporation for a public purpose
which was ultra vires and void, and thus render it valid and binding. Such
a contract having become valid by a later enactment, it is not affected by a
still later act which required certain other forms and ceremonies which had
not been complied with.'
Legislative enactment will not be held a ratification of illegal acts in the
performance of work unauthorized by a previous act unless the intention
rso to ratify is apparent and beyond question.' A later enactment authori-
zing the Croton aqueduct board " to construct work mentioned and to fur-
nish materials necessary for the same in such places and in such manner
by contract as they may deem the public interests require" was held to
repeal an earlier act which required "that all contracts should be awarded to
the lowest bidder for the same respectively, with adequate security, and
•every such contract should be deemed confirmed in and to such lowest
bidder at the time of opening the bids."*
If the constitution of the state require that the work be advertised and
let to the lowest bidder, the legislature cannot authorize officers of the state
to contract in any other way.^ The legislature cannot, in some states at
least, authorize city officers to pay money to an individual for which there
is no legal and enforceable claim, for it is a '^ gift of public money within a
constitutional inhibition against such gifts." '
143. A Contractor cannot Recover under a Void or Illegal Contract.—
When the contract provides that all contracts for work and supplies for
more than $100 shall be let to "the lowest responsible bidder giving
1 Dement v. Rokker (111.), 19 N. E. text, but there are cases to the contrary.
Hep. 83 [1889]. A collection of cases in Dillon's Munic.
2 Brown «. Mayor. 63 N. Y. [1875]; Corn'ns (4th ed.), § 465. note
reversing Brown «. Mayor. 3 Hun. 685 ; ^ Kingsley v. Brooklyn, supra.
bat see S;iult vSte. Marie ■». Van Deusen, 40 * The People ■». The'Croton Aq Board,
Mich. 429; Palmer 1). Tingle (Ohio). 45 49 Barb. 359 [1867].
N. E. Rep 313; Mitchel v. Milwaukee, ^ jyjulnix v. Mutual Ben. L. Ins. Co.
18 Wis. 92; PearsiU v. Gt. Northern Ry. (Colo.). 46 Par Rpp. 123.
Co. (C. C). 73 Fed. Ren. 983 ; Clinton ij.* « Conlin «. San Francisco (Cal), 46 Pac»
Walliker (Iowa), 68 N. W. Rep. 431. Rep. 279.
The law is generally as stated in the
§ 143.] BIDS AND BIDDERS, 133
adequate security," a letting of a contract to one not the lowest bidder
without showing that the lowest bidder is not responsible, nor his security
is inadequate, nor any pretense to that effect, is illegal and void, and the
contractor who has done work under sucli a contract cannot recover for his
work.' Municipal or public corporations are not liable for tlie value of
materials furnished under illegal or forbidden contracts when the munici-
pality cannot choose whether or not it will retain or reject the benefits
of such work or materials;" nor will the fact that the contract was let
to the contractor as the lowest bidder enable him to recover. He cannot
recover the value of the materials furnished under a contract fraudulent
or void.' . .
A county is not liable, therefore, for a court-house erected upon public
ground under a contract made in disregard of a statute that forbids con-
tracts for public structures to cost more than $500, unless to the lowest
l)idder, upon plans and specifications previously adopted, even though the
cou'fity use the buildings. The requirements of such a statute apply to
contracts for parts of such structures. The rule applies to alteration or
additions, in the course of construction under a legally made contract, the
cost of which exceeds $500. If bids are not invited and the contract
iiwarded according to law, the county is not liable for the price or value of
the work so undertaken.*
When the law prescribes a certain method for the exercise and execution
of special powers conferred they must be carried out as required. The con-
tractor cannot recover, notwithstanding a statute exists that provides that a
contractor shall be entitled to recover if the work has been done and
materials furnished in good faith, under a contract with the county authori-
ties, in making which they have not pursued the forms prescribed by law.
Such a statute was held to have no connection with the cases in point.'
A sewer assessment, valid on its face, is void if the contract was let with-
out advertisement for proposals, and an owner of assessed property may
recover a payment made by him in ignorance of the invalidity."
If county commissioners have authority to contract, and work is done
and materials furnished with their knowledge and consent, and they have
been accepted and used by the c-ounty, it is generally held that the con-
1 Brady v. Mayor. 68 K Y. 813 ; McDon- State v. Biddle (Com. PI.), 3 Ohio K. P.
aid v. Mnyor, 68 N. Y. 23 ; Dickinson -». 173; and see Hovey v. Wyandotte Co.
Poiighkeepsie, 75 "N". Y. 65; People v. (Kans.\ 44 Pac. Rep. 17; Townsend v.
Gleason (N. Y.), 25 N. E. Rep. 4 [1890]. " Holt Co. (iN^eb.). 59 N. W. Rep. 881; Lit-
2 Richardson v County of Grant, 27 tier v. Jayne, 124 111. 128 [1888]. Con-
Ped. Rep. 495 ■ Dickinson v. City of P., tract for eight statues ; so held when the
75 N. Y. 65 [1878]: People v. Gleason, contractor kept at work on a public biiild-
121 N. Y. 681 [1890] ; Bigler v. Mayor ing after he had instructions to stop work,
(N. Y). 5 Abb. N. Cas. 51. Epperson v. Shelby Co., 7 Lea (Teun.)
3 Nelson v. City of N. Y., 29 K E. 275.
Rep 814: afirming b '^ . Y. Supp. 688. ^ jjeidleburgh v. St. Francis Co. (Mo.)
4 Richardson v. Grant Co. (Ind.), 27 Fed. 12 S. W. Rep. 914 [1889].
Rep. 495 [1883]; Buchanan Bdge. Co. v. « Mutual Life Ins. Co. «. City of N. Y*
Walters (Com. PL), 3 Ohio K P. 176; (Sup.), 29 N. Y. Supp. 980.
134 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE [§ 144.
tractor may recover the reasonable value of his work and materials without
an express contract.* There must be no statute which requires an express
contract. ^
■ 144. Labor Laws and Limitations Must be Complied With. — The adver-
tisement, proposal, and award of the contract must conform to the laws,
charters, and ordinances enacted with regard to such work, not only as
regards the manner of soliciting proposals, but of entering into the contract.
If there are general statutes, such as those prohibiting foreign contract
work, or limiting the number of hours labor per day, or the employment of
aliens or minors, the bids and contracts must be made and executed in con-
formity with such laws and ordinances,^ and they should be brought to the
notice of contractors in the instructions to bidders, and the bidder should
be required to observe them in his proposal and estimate. They should be
made separate stipulations in the contract. This advice is given for the
benefit of the bidder as well as the public officer. It is the duty of the
public officer to proceed in accordance with the laws enacted, without ques-
tioning their constitutionality or legality, so long as there is no conflict in
his various duties; and if the bidder will have his proposal considered, he
must make it conform to the standard adopted and by which the bids are
to be judged. If he does not do this, his bid is pretty certain to be rejected
as informal. The constitutionality or legality of such labor laws can be
tested when they are violated.
Laws which forbid contractors to accept more than eight hours for a
day's work, except in cases of necessity, have been held not to abridge the
privileges of citizens under the United States constitution, art. 14, sec. 1,
or to deprive any citizen of his rights and privileges under .the constitution
of the State of New York, art. 1, sec. 1."*
In Colorado a different decision was reached, and the court held that
*'abill prohibiting mining and manufacturing companies to contract with
their employees for labor for more than eight hours a day is in violation of
the rights of parties to make their own contracts, under the constitution of
the United States (fourteenth amendment), and the bill of rights of the
constitution of Colorado." While a city council may by ordinance designate
the number of hours laborers shall work on the public works of the city, it
cannot make a violation of such ordinance a misdemeanor.^
In Indiana the act providing that eight hours shall constitute a legal
day's work applies only where the employment is by the day.'' Contractors
^Madisou Co. v. Gibbs, 9 Lea (Tenn.) * White, J., dissenting in People v.
383; and see Atkins v. Barnstable Co.. 97 Beck (Super. Buff.), 30 N. Y. Supp. 473.
Mass. 428. ^ In re Eight-Hour Law (Col. Sup.), 39
2 Walcott V. Lawrence Co.. 26 Mo. 272; Pac. 'Re \ 328; semble, Hellman v. Sboul-
Lehigb Co. v. Kleckner, 5 W. & S. (Pa.) ters (Gal.), 44 Pac. Rep. 915
181; 4 Am. & Eiig. Ency. Law 364. « State v. McNally (La.), 21 So. Rep. 27.
3 People V. Croton Aq. Bd , 26 Barb. ■" Helpbenstine ??. Hartig (Ind. App.), 31
(N. Y.) 240; Wiggins v. Phila., 2 Brws. N. E. Rep. 845.
444
§ 144.] BIDS AND BIDDERS. 135
and builders usually avoid the law by hiring all labor by the hour and paying
them accordingly.
An act of the legislature which requires employers to pay wages once or
twice each month between fixed days has been held to impair the obligation
of the contracts/ and violates the Pennsylvania constitution, which declares
that all men have certain inherent and indefeasible rights, among which are
those of enjoying and defending life and liberty, of acquiring, possessing, and
protecting property and reputation, and of pursuing their own happiness.'
In Illinois such a law " was held unconstitutional, as a taking of property
without due process of law, and as being class legislation.*
The Ehode Island courts have maintained the- constitutionality and
legality of a statute which requires every corporation, other than religious,
literary, or charitable corporations, and every corporated city, but not
including towns, to pay the wages of their employees weekly, all wages
earned by them to within nine days of such payment.^
Some other examples of recent legislation on the subject of wages
are statutes which require the employers to pay their employees their
wages earned by them in full on the day of their discharge, without
abatement or reduction, and providing a penalty for their failure to pay as
the statute requires. The laws as enacted in some states required the wages
to be paid on the day of discharge, notwithstanding the fact they might
not be due until a later day by the terms of the contract of employment,
which had the effect of impairing the obligation of contracts or of limiting
the right to contract, and were therefore unconstitutional — at any rate so
far as natural persons were concerned. In respect to corporations the courts
have held that under a power reserved in the charter to alter and repeal
laws relating to the formation and organization of corporations, that the en-
actment was valid. That all the powers a corporation has were created and
granted by the legislative assembly, and that by accepting the charter the
company agreed that they might be amended according to law.^ The
Ehode Island court went further, and held that the power of a corporation
to contract, granted by its charter, was not such a property that modifying
it or limiting it by the legislature could be called a taking away of the com-
pany's property without compensation/
A law which requires railroad companies to pay its employees what is
due them within 'fifteen days after demand therefor, and imposes damages of
^ Commonwenlth vi. Isenberg (Quart. Island Pub. Laws, ch. 918, sees. 1, 2.
Sess.), 4 Pa. Dist. Rep. 597. « State v. Brown, etc. Mfg. Co. (R. I.)
2 Commonwealth n. Isenberp: (Quart. [1892], supra; Leep v. St. Louis, etc., R.
Sess.l, supra; Godcharles v. Wigeman, Co , 58 Ark. 407.
113 Pa. St. 43i; but see, conira,'Q.Q.nQ,ock v. Herein is one feature at least where a
Yadeu, 121 lud. 366. corporation doing business, as such, is at a
^ Act approved April 23, 1891. disadvantage with a natural person.
''Braceville Coal Co. v. People, 147 111. ■" State v. Brown, etc., Mfg. Co. (R. I.)
66. [1892], 8up)'a ; but see, contra Braceville
^ State D. Brown, etc., Mfg. Co. (R I.), Coal Co. v. People, 147111. 66.
89 Am. & Eng. Corp. Cas. 190 ; Rhode
136 ENGINEEBma AND ARCHITECTURAL JURISPRUDENCE. [§ 145.
twenty per cent, of the same due for a failure to comply with such law, was
held unconstitutional as being special or class legislation/
Statutes requiring contractors and employers to pay their help wages in
lawful money, and prohibiting payment by orders, " store-pay," etc., have been
held constitutional where their application has been general and to all classes
of employers.' But when the laws require that mine owners and manufactur-
ers shall pay their help in lawful money of the United States, at regular
intervals, and fails to include persons and companies engaged in other pur-
suits, then it is class legislation and unconstitutional. It has been so held
in West Virginia, Illinois, Missouri, Pennsylvania.'
Under the laws of State of New York it is a misdemeanor punishable
with a fine for a contractor to employ any one but citizens of the United
States on state or municipal work. Recently the supreme court of the state
rendered a decision that the law could not be enforced with regard to
Italian laborers, as it conflicted with the treaty between the United States
and the king of Italy, which guarantees the latter's subjects residing within
the territory of the former country all the rights and privileges with respect
to trade and employment that are enjoyed by citizens."
The constitution and laws of the states are subordinate to every treaty
made by the authority of the United States, and if the laws of any state refuse
certain rights to foreigners or aliens which the treaty of their country secures
to its subjects, then such laws are void.^ A statute that forbids aliens who
cannot qualify as electors from fishing in the waters of the state was held in
violation of our treaty with China, and therefore void.* The right to reside in
a state implies the privilege of trading and laboring, and a statute which for-
bids certain aliens from working in a mining claim, whether for themselves or
for others, was declared null and void.'' That the states as well as their citi-
zens are bound by treaties of the Federal government cannot be doubted. *
145. Form of Notice and Instructions. — vThe notices usually require
certain declarations by the bidder, which he must make to entitle his bid to
consideration, and specify certain reasonable restrictions and qualifications
that are made necessary to become a bidder.
NOTICE TO BIDDERS. GEIfERAL IN^STRUCTIONS AND CONDITION'S.
Notice : — Bidders are advised that any and all bids deficient in any of the following
requirements may be rejected as informal.
' San Antonio, etc., R. Co. ■». "Wilson ^ \ Amer. & Eng. Ency. Law 465, and
(Tex. 1892), /:0 Amer. & Eng. Corp. Cas. cases cited.
513. « In re Ah Chong «. U. S., Pac. Coast L.
2 Peel Splint Coal Co. v. State (W. Va.), J., June 12, 1880.
15 S. E. Rep, 1000. ' Chapman v. Toy Long, 4 Sawy. (U. S.)
3 23 Amer. & Eng. Ency. Law 936-7; hut 37 : Baker v. Portland, 5 Sawy. (U. S.) 566.
see Hancock i), Yarden, 121 Ind. 866, » The La Ninfa (C. C. A.), 75 Fed. Rep.
contra; and see Shaffer v. Union Min. Co., 513 ; The Alexander (C. C. A.), 75 Fed.
55 Md. 74. Rep. 519 ; and see Hellman ■». Shoulter»
^ Justice White, in People v Warren, 13 (Cal.), 44 Pac. Rep. 915.
Miscl. Rep. (N. Y.) 615 [1895].
§ 145.] BIDS AND BIDDERS. 137
1. Capacity to Contract.
No bid will be accepted from, or contract awarded to, any corporation
until it shall have furnished satisfactory proof of its legal capacity to
enter into and perform the same contract.
2. Bidders in Arrears or Default.
No bid will be accepted from or contract awarded to any person or
corporation who is in arrears to the Proprietor, State, or City, upon debt
or contract, or who is a defaulter as surety or otherwise upon any obli-
gation to the Proprietor, State, or City.
3. Bidder must he a Practical Contractor or Builder.
Proposals from parties who are not known to be regularly and practi-
cally engaged in the class of work called for by the drawings and speci-
fications, and to possess ample facilities for doing the same, will not be
accepted.
4. Bidder must be Qualified.
The bidder must satisfy the engineer or commissioner of his ability
to furnish the materials and perform the work for which he bids.
6. Wo Assistance from Officers or Employees.
Proposals must be prepared without the assistance, additional infor-
mation, or suggestion of any person belonging to, employed- by, or hold-
ing ofl&ce in the Company, State, or City.
6. Government Officers can have no Interest.
In work for the Federal Government this clause 's often inserted :
No member of or delegate to Congress, nor any person belonging to or
employed in the service of the United States, shall have any in-
terest in the contract for this work or any benefit that may arise there-
from; but if the contract be made with an incorporate company for
its general benefit, this rule will not be construed to extend to this con-
tract so far as it relates to members of Congress.
7. No Interest in Other Bids.
Reasonable grounds for supposing that any bidder is interested in
more than one proposal for the same item may cause the rejection of
all proposals in w^hich he is interested.
8. All Persons Interested must le Named.
Bidders are required to state in their proposals or estimates their
names and places of residence, their business and the names of all per-
sons interested with them therein; and if no other person be so inter-
ested, they shall distinctly state the fact.
9. Bid J Fair in all Respects.
The proposal must state that it is made without any connection with
any other person making any bid or estimate for the same purpose, and
that it is in all respects fair, and made without connection or collusion
with any other person making proposals for the same work or materials.
10. Statement that no Officer or Employee is Interested.
Bidders are required to state that no person employed or appointed
by virtue of any city ordinance, legislative act, or act of Congress rela-
tive to the [name of work] has any interest in the proposal
or contract; that no member of the Common Council, Head of a De-
partment, Chief of a Bureau, or any Deputy thereof, or Clerk therein.
138 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 146.
or any other Officer of the State, City, or Corporation is directly or indi-
rectly interested therein, or in the supplies or work to which it relates
or in any portion of the profits thereof.
11. Declaration as to Truth of Statements.
The proposal or estimate must be verified by the oath in writing of
the party or parties making the same, that the several declarations and
matters stated therein are in all respects true; and if more than one
person is interested in the proposal, it is required that the verification be
made and subscribed by all parties interested; in case of a firm, by each
and every member of the firm.
146. Bidders May be Required to Possess Certain dualifications. — The
extent to which bidders may be required to conform to the "red tape,'*
so called, which is prescribed in the instructions to bidders, and which is so
distasteful to practical contractors and builders, must be determined by its
reasonableness; and as the powers conferred upon public officers are largely
discretionary, it may be said to be almost unlimited. The recording of all
information and data as to the parties, their names, addresses, names of
members of firms and officers of corporations, and the authority by which
they act is necessary to good business methods.
When commissioners or a board of public works have been authorized to
invite proposals and to award contracts under certain acts or laws, they may
prescribe in their notice to bidders any reasonable formality to be observed
that does not interfere with or prevent fair competition, even though the
court can assign no reason for or purpose to be served by the specification
or requirement.^
Neglect on the part of the bidder to conform strictly to the forms and
reasonable requirements so prescribed will be fatal to his chances of receiv-
ing the award of the contract. No bid should be received that does not
comply with the instructions to bidders. If -a proposal is informal and
irregular, it cannot properly be considered." A reference in the bid to
" plans," " specifications," and " diagrams " has been held to be to the plans,
etc., furnished the bidder and from which "he was supposed to make his
estimate.^ The bid must not be lacking in definiteness: it must be clear as
to quantity, quality, and price. A bid to supply materials ^^ at what it
cost to lay them down" is too indefinite." A specification for electric lights
which stated the candle-power, but failed to name the system, was held snf-
ciently definite." The omission in a proposal of two items of comparatively
insignificant value will not render invalid a bid which is otherwise proper in
form.'
» Re Marsh, 83 N. Y. 435 [1881] ; State » See Wigdns ^. Pliilarlelpliia 2 Brews.
V. Governor, 22 Wis. 110 [1867]; Favman (Pa.) 444; Weed t\ Be.-iclj. 56 H(»w. Pr.
«. Comm'rs, 21 Ohio St. 311 [1871] ; Inter-. (N. Y.) 470; lie Mnrsli, 88 N. Y. 431.
state, etc., Co. -p. Citv of Phila. (Pa.), 30 « Sexton^'. Chioneo, 107 111. 323.
Atl. Rep 383; May ?)! Detroit, 2 Mich. N. ^ State «. York Co. Comm'rs. 13 Neb. 57.
P. 235; State 'o. Board, 42 Ohio St. 374; ^ Detroit v. Hosmer (Micii.) 44 N. W.
hut see People v. ContracMig Board, 46 Rep 622.
Barb. 254 [1865]. « Stale ®. York Co. Comm'rs, supo'a.
§ 148.] BID8 AjSD bidders. 139
Tlie reasonableness of the first requirement, that corporations, and all
piirtius, for that matter, should demonstrate their capacity to contract, is too
evident to require discussion. Legal capacity of the parties to contract is
the first element of a binding agreement.
147. Restrictions which Exclude Certain Persons from Bidding. — The
reasonableness of a restriction which denies certain persons the privilege of
bidding is not so apparent in that it renders it possible for the parties hav-
ing the power to award the contract to foster favoritism by excluding ex-
perienced as well as inexperienced persons who have been so unfortunate
as to have had differences with public officers. A clause that provides that
bids from " persons in arrears to the government or who are in default
either as contractors or as sureties will not be received," or that "the bidder
must be known to be regularly and practically engaged in the class of work
bid for," must give to some one the determination of these questions. If a
public officer is inclined to be very exacting or officious, he is certain to raise
these questions. Whether or not a contractor i$ in arrears or default is a
question that sometimes requires a long time to settle conclusively; and the
amount of experience a man should have had to be capable of undertaking
certain work, the precise character of which may never before have been met,
would be a question which no two persons would determine alike. If such
questions were decided by an engineer or officer arbitrarily, and the courts
subsequently found that the contractor was not in arrears or default, or that
he was capable and his bid had proved to be the lowest bid for the work, it
might prove an unhappy restriction, the reasonableness of which would be
questionable. Decisions of boards under such restrictive clauses should re-
ceive the closest scrutiny of the courts.
In Pennsylvania it has been held that a court would not control the dis-
cretion of public officers in such a case, and that it was proper to refuse a
contract to the lowest bidder, although he was pecuniarily responsible, if he
had previously defrauded the city by furnishing inferior supplies, even though
he had not been judicially convicted of the act;* while in another case it
was held that a city council could not arbitrarily refuse to entertain a bid
for city printing because the bidder was not the owner of a newspaper.^
To be able to demand an award of the contract the lowest bidder may
be required not Only to offer adequate security for the performance of the
contract, but he must also be able to undertake what is expected or demanded
of him.'
148. There Must be No Collusion or Other Efforts to Prevent Competi-
tion.— The reasonableness of a requirement that the contractor shall not
have had assistance or advice from employees or fiduciaries of the city or
any department of public works, and that no one elected to office or holding
' Douglass 'U. Commonwealth, 108 Pa. Rep. 414.
St. 559. 2 People v. Dorsheimer, 55 How. Pr.
« Berry i?. Taeoma (Wash.), 40 Pac. (N. Y.) 118.
140 ENOINEEBING A^D ARCHITECTUBAL JURISPRUDENCE. [§ 14a
positions of trust and confidence should have any interest in the proposal or
contract, are manifestly reasonable and just when such acts or interests by
the parties mentioned are contrary to the express policy of the law and of
good government.*
A statute prohibiting any councilman of a city from being interested in
any contract with the city has been held to apply to a member of the council
who is a stockholder and secretary of a corporation haviug a contract for
lighting the city, even though the member was elected alter the contract
was executed.^ A court of its own motion may institute a prosecution
against a public officer for being concerned in a public contract by direct-
ing the grand jury to investigate the matter, and after a presentment by
them directing the district attorney to submit an indictment."
That bidders should be required to state the names of all parties inter-
ested in the bid, and that the bid is made without connection with any other
bidder, and that it is in all respects fair and without collusion or fraud, can-
not be questioned. It is a uniform doctrine that any combination at public
or private sales having the effect of preventing competition in bidding ia
against the policy of the law and avoids the sale.' The same doctrine ap-
plies to bidding for public work in response to invitations for tenders by
which competition is sought. A combination of contractors for the pur-
pose of destroying competition and securing to one a contract which the law
requires should be awarded only after competition is against public policy
and illegal, and if it results in unreasonable prices the proposal may be
rejected or the contract repudiated or annulled/f
Any agreement between parties designing to make bids, tending either
directly or indirectly to restrain or lessen rivalry and competition between
them, is void as against public policy, even though it may not appear that
such agreement did really produce any result detrimental to public interests.
This is true in auction sales, but it seems that the auctioneer or owner
must have been a party to the collusion or deceit. The fact that a person
by mistake believed himself employed to attend an auction sale as a
"puffer," and by making fictitious bids induced one who was the highest
bidder at the sale to bid more than he would otherwise have done, does,
not render the sale void as to the owner if the auctioneer and owner had
no knowledge of such person's conduct.^ The fact that several of the
highest bids made were not enforced by the owner does not entitle
* Commonwealth i). De Camp (Pa. Sup.), 25 S. E. Rep. 693; Jennings Co. Com'rs
85 Atl. Rep. 601. -u. Verbarg, 63 Ind. 107.
« Commonwealth v. Hurd (Pa.), 35 Atl. * People v. Stevens, 71 N. Y. 527; People
Rep. 682. v. Lord, 6 Hun 390; Wood worth v. Ben-
3 Durfee v. Moren. 57 Mo. 374 [1874] ; nett, 43 N. Y. 273; Gulick v. Ward, 10 N.
Saxton V. Sieberlin^ (Ohio), 29 N. E. Rep. J. Law 87.
179; and see Locke «. Willingham (Ga.), * Locke v. Willingham (Ga.), 25 S. B.
Rep. 693.
* See Sees. 42, 85, supra, and 512-518, infra.
\See Sec. 82, Chap. 3, Part I , supra.
§ 148.] BIBS ANB BIBBERS. 141
another highest bidder for a different lot offered at the same time to rescind
his bid.^
Agreements between two contractors, sending in distinct sealed proposals^
that if the contract should be awarded to eitlier, both should share equally
in the profits, if any, or contribute equally for losses, has been held against
public policy and void." But agreements between bidders for a public
improvement to become partners in doing the work if either of them
secured the contract, and that any benefit should inure to the firm, have been
held valid and binding when it did not appear that the intent, effect, or
necessary tendency of the contract was to stifle fair competition.^ *
An interesting case is where two contractors by previous agreement
made a bid for their joint benefit, in the name of one of them and a third
person, for the construction of certain city improvements, and the contract
was awarded to them. One of them, with the other's knowledge and
consent, had made a separate bid, at a much higher figure, which was not
seriously intended. The city engineer's estimate was higher than the latter
bid, and there were three other bids still higher. Under these circumstances
it was held that, even if the second bid was put in for a fraudulent purpose,
there was no room for the inference that it had any influence in the
making of the award; and, as the attempted fraud was therefore unsuc-
cessful, it could furnish no ground for refusing to compel one of the con-
tractors to account to the other for his share of the profits made under the
contract.*
A statute that provides that the contract shall " in all cases be let to the
lowest responsible bidder " has been held not to permit the substitution of
another person as contractor in place of the lowest bidder, and further that
any contract based upon such a substitution is void. The lowest bidder was
to have a bonus for the contract.^! If as a result of illegal combinations to
prevent competition a contract is let at an unreasonable price, the party
defrauded may repudiate the contract and recover damages.'
A secret contract, between persons proposing to bid on the construction
of a public work, by which their bids are to be put in, apparently in com-
petition, but really in concert, with the intention of securing as high a price
as possible, and dividing the profits, will not be enforced, though one of the
parties secured the contract, executed the same, and received the profits.'
A note given in part consideration of an agreement to refrain from bidding
' Locke V. Williugham (Ga.), 25 S. E. Brennan, 34 Neb. 129; contra Atcbeson
Rep. 693. v. Mallon, 43 N. Y. 147.
2Atcheson v. Mallon. 43 N. Y. 147; * McMiillen ©. HoJffman (C. C), 75 Fed.
Woodworth v. Bennett, 43 N. Y. 274; Rep. 547.
Hunter v. Pfeiffer, 108 Ind. 197 [1885]. « Hannah v. Fife, 27 Mich. 172.
3 Breslin v. Brown, 24 Ohio St. 565; « People v. Lord, 6 Hun (N. Y.) 390,'
McMnllen v. Hoffman (C. C), 75 Fed. Peop'e ??. Stevens. 71 N. Y. 527.
Rep. 547; acord, Flanders «.Wood (Tex.), ' McMullen v. Hoffman (C. C), 69 Fed.
18 S. W. Rep. 572; and see Whalen v. Rep. 509, 75 Fed. Rep. 547.
* See Sec. 149, infra. t See Sec. 15, aupra.
142 ENGINEEBING AND AE CHI TEC TUBAL JURISPRUDENCE. [§ 148.
at a public sale of goods is invalid except in hands of an innocent pur-
chaser/
Any combination of contractors by which the privilege of bidding is
secured 'by one without competition is illegal, though not criminal in
Indiana, and if it results in letting the contract at unreasonable prices, the
proposals may be rejected or the contract repudiated. A fraudulent bid
i-enders the contract, with the bidder making, it null and void.'' Any promise
of reward to induce another contractor who had intended to bid not to bid
renders the contract null and void.^ Any fraudulent practice, such as
collusion between public officers and the contractor, will have the same effect.*
In Indiana such a combination among the contractors to make high bids and
secure an exorbitant price for the work and to divide the profits has been
held not to be a crime.*
148n5. Possibility of the Law Being Used to Escape Onerous Contracts. —
The position of a contractor undertaking public works is a precarious one
indeed, when a slight omission of duty by the council or a neglect of duty on
the part of a public officer may destroy his supposed rights in a construction
contract, or prevent him absolutely from recovering for work done and
materials furnished, no matter how conscientiously and skillfully performed.
That a man's rights and compensation for an honest effort performed in
good faith should depend upon the acts and misfeasance of another over
whom he has no control, is a hardship which justice can never require. It
may be the effect of a necessary law, but it is wholly wanting in equity.
It has been suggested that a strict application of the law might afford the
contractor an avenue of escape from a burdensome undertaking, as when he
has made a mistake in his estimate and proposal, or when the conditions are
such that he desires to evade the performance of the contract. With the
aid of some subordinate officer a fictitious case of collusion or some
irregularity could be worked up which would render the award or contract
void or illegal, and render it necessary to readvertise the work, to the relief
and escape of the cunning contractor. From what has preceded it would
not seem necessary to secure the assistance of a public officer, but fellow
contractors might afford relief by exposing a fake combination to prevent
competition in bidding. If such irregularities -were made out and the lowest
bidder was not shown to be a party, the city or state could not equitably
retain his certified check nor hold his bondsman for his failure to enter into
or to complete his contract. If the state or city refused to enter into the
contract or was enjoined from so doing, the contractor could hardly be made
to suffer iTi consequence. There are cases where conspiracies have been
^ Atlas National Bank u. Holin(C. C. A.), ^ Nelson ®. New York, 5 N. Y. Supp.
71 Fed. Reo. 489. 688, s. c. 29 N. E. Rep. 814; In re D. & H.
2 15 Ame'r. & Eng. Ency. Law 1100. C. Co., 8 N. Y. Supp. 352 ; In re A^ider-
•^ Jenuinirs County Comm'rs «. Verbarg. son, 109 N. Y. 554.
63 Ind. 107; Woodworth v. Bennett, 43 •* State v. Bruner (Ind.), 35 N. E. Rep.
N Y. 273; Gulick v. Ward, 10 N. J. Law 2S.
87.
§ 149.] BIBS AND BIDDERS. 143
formed to secure contracts, but the author has found none in which tho
object has been to get rid of them. In New York it has been decided that
a contract secured by corrupt means was voidable only at the election of the
city, one of the parties.*
Some of the cases seem to have anticipated the possibility of such a con-
spiracy and evasion, as in those cases where the courts have lield that the
attempt to prevent competition must have been successful to avoid the
contract, that to render the bid or contract void the result must have been
a letting at an unreasonable price.' For a contractor to prove that the work
had been let at an exorbitant price or that the public interests had suffered
might not be an easy matter, especially when he himself was in a tight place
on account of having bid too low.
149. What is Good Evidence of Fraud and Collusion of Public Officers
and Servants. — An estimate of the quantity of work which was only a ran-
dom guess, and made the amount of stone excavation at more than double
and the earth excavation at less than one-half the actual amount, was held
not an estimate that would form a basis for a valid contract; that such an
estimate, taken in connection w^ith a bid of more than five times the actual
•cost of excavation earthwork and less than one and one-half per cent, of the
actual value of stone work, thus showing on its face, according to the engi-
neer's estimate, that he was the lowest bidder, when he really was the high-
est bidder, raised a just inference of fraud and collusion.^* So it may be
«hown in proof of fraud that the bidder had offered to sell materials at
prices lower than those stated in his bid.*
The facts that the bidder secured the contract as the lowest bidder by
putting in an unbalanced bid; that the city officers, exercising the option
given them by the contract, only called for those materials the price for
which was in excess of the fair price, and in greatly increased quantities;
and that the advertised estimated amount of some of such materials was
greatly less than the amount actually needed at the time, — are sufficient to
show fraud and collusion in the letting of the contract. \
Public officers having public works in hand are presumed to know the
usual prices paid for work, and evidence that a higher price was agreed upon
than was shown by the city bid-book to have been paid before and after the
contract, for similar work, was held .competent as bearing upon the alleged
combination and collusion of the commissioners. Discretion and good judg-
ment must be exercised, and such contract be fairly made, and at reasonable
1 Devlin v. New York (Com. PI.), 23 N. N. E. Kep. 623: and nee McMillen ®. Hoff-
Y. Supp. 888. man (C. C), 75 Fed. Rep. 547.
2 15 Amer. & Eng Ency. Law 1100. ^j^elson ^ jvq-g^ York (App.), 29 N. E
3 In re Anderson (N. Y.), 17 N. E. Rep. Rep. 814, affirming 5 N. Y. Supp. 668.
209 [1888] ; hut see contra in Reilly v. ^ Nelson v. New York, supra.
-The Mayor, 111 N. Y. 473 [1889], s. c. 18
* See Sec. 54, Chap. I., mpra
144 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 150.
prices, with due regard to the interests of those concerned, or a court of
equity will relieve against them/
In general, contracts are not void as against a public officer if from the^
agreements it does not appear that their intent, effect, or necessary tendency
is tu stifle competition.' Therefore, a contract between several architects, who-
had each put in plans and specifications in competition for the erection of a
public building, to retire from further contest and let the plans alone
compete, and that whichever plan should be accepted all should share^
equally in the remuneration, is not against public policy, the competition
not being in the least influenced by the agreement/
Likewise when one of the parties who had filed his bid and another who was-
about to file his bid entered into an agreement to become partners in doing
the work, in the event of either party being the successful bidder, both to
share the profits alike, the agreement was held not against public policy, it
not appearing that the intent, effect, or necessary tendency of the contract
was to stifle competition." *
150. Oath as to Truthfulness of Statements. — It seems that bidders may
be required to verify the statements made in their proposals under oath, and
that when the bidder is a firm, each partner may be required to make oath
to the truthfulness of the statements made.*
If a question be raised as to the truth of statements made in proposal,
which on its face entitles the bidder to the contract, it has been held that a
board of public officers could not decide the question- against the bidder and
award the contract to another without giving him an opportunity to be
heard;' f and in this case the board was clothed with discretionary powers^
providing that contracts should be awarded to the lowest bidder. who fur-
nished such security as the board approves, unless in the interests of the
public the board determines to reject all bids.
MATTERS TO BE CONSIDERED IN" PREPARIN^G BIDS.
151. Forms to be Used and Formalities to be Observed. —
1. Made i7i Triplicate.
All bids must be made in triplicate upon the printed forms obtained'
at the office of the Engineer, No Street, City of r ^
County of , State of , and must be accompanied by a
copy of the Advertisement, Instructions and Conditions, the Specifica-
tions, and Contract.
2. Addressed and Indorsed.
All proposals must be addressed to the Engineer, to his-
»Cook V. City of Racine, 49 Wis. 243 '^Breslin?). Brown, 24 Ohio St. 565; ae-
[1880]. cm^d Giilick v. Webb (Neb), 60 N. W.
2Whalen v. Brennan (Neb.). 51 N. W. Rep 13.
Rep. 759; Breslin v. Brown, 24 Ohio St. ^ People '». Croton Aqueduct, 26 Barb.
665. (N. Y.) 240.
3 Flanders v. Wood (Tex.), 18 S. W. « Connolly i). Board (N. J.), 30 Atl. Repv.
Rep. 572 [1892]. 548.
* See Sec. 148, supra. f Compare Sec. 147, supra.
§ 151.] Bins AND BIDDERS. 145
office, and indorsed " Proposals for the Construction [Building of]
, with the name [or number] of the person making the bid or
proposal and the date of its presentation.
2\ Indorseinent and Time of Delivery.
The proposals must be delivered at the office of the Engineer,
in a sealed envelope, addressed to , Engineer, , indorsed
" Proposals for the Construction [Erection] of, etc., , at or
before 12 o'clock, Monday, 18 . . .
3. No Bids Received after Date Named,
Any and all bids received after the hour named [fixed] for delivering
the proposals will not be opened or considered unless all of the bids
then presented shall have been rejected and reconsidered.
4. Prices to be Written Out.
The prices must be written out as well as expressed in figures, in the
respective columns provided for the same.
5. Blank Forms Furnished must he Used.
Bidders are required, in making their bids or estimates, to use the
blanks prepared and furnished for that purpose by the Engineer, a copy
of which, together with the forms for the Contract and Bond, including-
the Specifications and Plans, can be obtained upon application therefor
at the office of the Engineer.
5\ Blank Forms.
Each bidder must obtain blank forms of proposal, and prepare and
submit his proposal thereon. The original drawings named in tha
specification will be retained on the files of the office of the Engineer
(Architect), but tracings or copies of the same will be prepared for th&
use of the bidders.
6. Proposals must he Confined to the Estimates.
Proposals or estimates must contain neither more nor less than is-
called for in the advertisement or provided for in the blank form of
proposal and the Specifications and Plans. Any bid which does not
contain bids for all items for which bids are iiivited, or which contains
bids for items for which bids are not asked, will be considered informal.
No change shall be made in the terminology or phraseology of the
proposal.
6\ Proposal must he Regular.
Proposals that contain any omission, erasures, alterations, additions,
or items not called for in the Specifications, Plans, and Bill of Quantities
contained in the blank form of proposal, or that contain irregularities
of any kind, may be rejected as informal.
6"\ Alterations should be Explained if Alterations are Permitted.
Alterations by erasures or interlineations should be explained or
noted in the proposal over the signature (or number) of the Bidder.
7. Unbalanced Bid not Acceptable.
Any bid in which the prices stated for the several items are unbal-
anced may be rejected.
8. Bids may not he Withdravjn nor Changed.
Permission will not be given to withdraw, modify, or explain any pro-
posal or bid after.it has been deposited with the Engineer.
8\ Rids may be Withdrawn.
If a bidder wishes to withdraw his proposal, he may do so after it has
been delivered to the Engineer at any time before the time set for
opening the proposals, without prejudice to himself.
146 EliQINEEBING AND ARGHITEGTURAL JURISPRUDENCE. [§ 151.
9. Bidders Agree to Forms Furnished.
Parties making bids are understood to accept the terms and condi-
tions contained and expressed in the forms of Contract, Specifications,
Plans, etc., annexed to the proposal submitted.
10. Forms must he Kept Intact.
No bid will be received if detached from the other forms with which
it is bound; the entire package must be delivered unbroken and in good
order, complete in all respects.
11. Drawings must be Returned.
Parties obtaining copies of the Plans and other drawings must return^
them to the Engineer within days from the date of receipt.
12. Estimate of Qua7itities.
The following is a statement, based upon the estimates of the
^Engineer, of the quantity, quality, nature, and extent, as nearly as
possible, of the work and materials required, and the several bids will be
tested and compared by the quantities given in this estimate:
Prick
3,000 cubic yards Rock Excavation $......
5,000 " " Earth " $
4,000 '' " Filling $
1,000 " '' Rubble Masonry $
500 " " Concrete $
800 square yards Paving to be furnished and laid %
1,000 linear feet of Curb and Guttering .$.....•.
10,000 feet, board measure. Pine Lumber $
1,800 pounds Wrought Iron $....,.
etc. etc. etc. etc.
12\ Estimate of Qua7itities.
The bids will be compared on the basis of the Engineer's estimate of
the quantities of work to be done and the materials to be furnished,
"which are as follows:
Item \a]. 10,000 feet B. M. Pine.
Item \b\. 20,000 Paving Bricks,
etc. etc. etc.
13. Estimate is Approximate.*
The above-mentioned quantities, though stated with as much accu-
racy as is possible in advance, are approximate only, and bidders are
* required to submit their estimates upon the following express conditions
ivhich shall apply to and become a part of every estimate received: —
a. Bidders must determine quantities for themselves.
h. Bidders must satisfy themselves by personal examination of the
location of the proposed works, and by such other means as they may
prefer, as to the accuracy of the foregoing estimates of the Engineer and
the nature and extent of the work to be performed according to the
Specifications and Plans, and shall not at any time after the submission
of his proposal dispute or complain of such statement or estimate of
the Engineer, nor assert that there was any misunderstanding in regard
to the work to be done or the materials to be furnished.
c. Bidders should make an inspection and estimate.
13^ Contractor should Make Personal Exami^iation.
Before submitting a proposal each bidder should make a careful
* See Sees. 588-589. infra.
151.J BID8 AND BIDDERS. 147
examination of the drawings and specifications, and fully inform himself
as to the quality of the materials and character of the workmanship
required, and he should visit the locality where the work is to be done
and make a careful examination of the place where the materials are to
be delivered, for should his proposal ^je accepted he will be responsible
for any and every error in his proposal resulting from his failure r,o do so.
IS''. Estimate is Correct.
The quantities given above are correct, and are the quantities that will
be used in the final estimate. The prices bid must include all items of
expense attending the work as herein specified.
14. Work and Materials are Itemized. Bid is for Whole Work.
In the form of proposal the materials to be furnished and the work
to be done are itemized for the purpose of comparing the bids and as a
basis for the monthly estimates, but if the contract be awarded it will
be as a whole.
15. Itemized Bid Required.
Bidders must state the proposed price for each separate item of the
work by which, together with the time required to complete the work,
the bids will be compared; but each bid must cover the entire work,
and no partial bids will be received.
16. Nothing Allowed for Work not Mentioned.
Work or materials not specified, and for which a price is not named in
the contract, will not be allowed for nor considered.
17. Qiiantities may be Increased or Diminished.
It must be understood that these quantities are given merely as a
basis for comparison of bids, and the right is expressly reserved to
increase or diminish the quantities or altogether omit any items that in
the judgment of the Engineer may be deemed unnecessary.
18. No Claims for Damages or Extra Work.
Such additions or omissions do not entitle tlie contractor to any claim
for extra work in the completion of the work, or to any other claims for
damages, if the quantities of work and materials should prove to be
greater or less than estimated.
18\ Additions and Changes to he at Contract Prices. No Extra Claims.
It must, therefore, be expressly agreed that the Engineer may, in
his discretion, and either before or after the commencement of the
work, increase or diminish the quantities to an extent not exceeding
thirty [30] per cent, thereof. If the quantities be increased, the
increase shall be paid for, but only for the actual amount thereof, and
at the price fixed in the contract; and if the quantities be diminished,
such diminution shall not in any case constitute a claim for damages or
anticipated profits on the quantity or quantities so dispensed with, but
only the quantities actually delivered and accepted and the work done
and approved, will be paid for.
18\ Engineer may make Additions, Omissions, and Alterations at
Market Price.
The successful bidder must understand that the right and pi'ivilege-
is reserved to the Engineer to make any additions to, omissions from,
changes or alterations in the materials and work called for by the-
drawings and specifications and contemplated by or embraced in his
proposal; and that any addition to, or omission from, said materials or
work is to be made on the basis of the contract unit value of the
work or materials referred to; and that any changes in the quality of
148 ENGIKEERING AND ARCHITECTURAL JURISPRUDENCE, [§ 162.
the materials or alterations in the work are to be made on a basis ol
market rates prevailing at the time that such changes or alterations are
ordered; and further, that no claim for compensation for any extra ma-
terials or work shall be made or allowed without the same has first been
agreed upon and specifically authorized in writing by the Engineer, under
the approval of the owner, commissioner, etc.
19. iSdfnples to be Submitted,
Each bidder must submit with his proposal, at his own expense,
samples of the materials and workmanship [finish] which he proposes
to use [furnish], the samples to have the name of the bidder, the title
and location of the work, and the date of the proposal, plainly marked
thereon. Each sample of stone must be ... . inches by inches
by inches, one face showing natural fracture, and the other faces
showing different styles of finish, with the location of its quarry dis-
tinctly marked upon it. The samples submitted with the proposal of
the successful bidder will be retained, and when required he must at
his own expense furnish duplicates of the samples.
20. Quality of Materials to be Considered.
The character of the materials proposed will be considered, and if it
be deemed to the interests of the city, state, or company, or owner for
this or any other reason to accept any proposal other than the lowest,
the right to do so is expressly reserved.
20'. Materials Offered and Time required to Complete will be Considered,
Each bidder may understand that the quality of the materials offered
and the time stated for the supply of the materials and the completion
of the work will be considered in the matter of acceptance of the
proposal. The value of a day in estimating the time required for per-
formance will be $ ... .
21. Materials furnished by City, State, or Oivner.
The following-named materials [and labor] will be furnished to the
bidder by the city, state, or owner at the prices given in the blank form
of proposal or bill of quantities, the same to be included in the bidder's
estimate and proposal.
22. Patent Rights.
Each bidder must understand that he is to protect and indemnify all
persons acting for and in behalf of the city, state, or owner for any
liability which may be claimed by any party on account of any patent
rights connected with any of the materials, articles, or processes used
or employed in the work or in its performance, or any contemplated or
embraced in his proposal.
23. Bid for a Part or the WJiole,
Bidders are requested to state whether their bids must be considered
as a whole or whether a part thereof may be accepted.
24. Tenders.
Tenders are to be made in the form of a lump sum, which sum must
be taken to cover the cost of the completion of the work in every re-
spect, in accordance with the specifications and drawings.
FORMALITIES TO BE OBSERVED.
152. Propriety of Certain Requirements and Restrictions. — Any restric-
i;ion or requirement imposed upon a bidder which will facilitate the business
of letting the contract and secure uniformity and a standard for comparison
§ 154.] BIDS AND BIDDERS. 149
■of the bids, and not entail too much work or expense upon the contractol*,
oan without doubt be considered reasonable, and within the discretion
iiccorded to public officers by our courts. Such requirements are those
which insist that proposals shall be made upon printed forms in triplicate
iind shall be delivered by a certain day named, and that the prices shall be
written out as well as expressed by figures to give greater certainty and to
guard against mistakes, and many other similar requirements. The act of
the board in directing the city engineer to reject bids for public im-
provement unless accompanied by an offer to purchase bonds has been held
not a ground for attacking a contract actually made, it not appearing that
the bids were influenced by that fact.^
153. There should Be a Standard for Comparison of Bids. — In order to
have a fair and equitable comparison, it is essential that all should have the
same data concerning the same subject-matter, and that the bidders one and
all be furnished with the same information or be afforded the same means
of acquiring it.
An act or a charter which requires a contract " to be given to the lowest
responsible bidder " has therefore been held to render illegal and void a
contract awarded on plans and specifications prepared by each of the
different bidders. The court says the term lowest bid necessarily implies
a common standard by which to measure the respective bids, and that
a common standard must Tiecessarily have been previously prepared of
the work to be done ^ Such a letting not only prevents the competition
which it is the object of the statute to secure, but furnishes no standard by
which the board can determine the lowest bid, and gives an opportunity for
favoritism in awarding the contract.^
154. Full Information as to the Work should Be Furnished. — A pro-
vision that certain contracts shall be lot to the lowest responsible bidder
after advertising for bids requires that information shall be given to
■bidders which will enable them to bid intelligently.* They should be
informed either by the notice of letting or by proper specifications of the
amount of work embraced in each contract, the time within which it is to
be completed, the manner in which it is to be done, and the quality of the
materials to be furnished.^
It is the manifest duty of the contracting officer or board which is
authorized to make such public improvements to prepare plans and specifi-
cations, and to give a detailed statement or estimate of the work and of the
^ Ric ' «. Board of Trustees (Cal.), 40 Pac. Rep. 622 [1890]; and see Kneeland v. Hos-
Rep. 551. mer, 20 Wis. 437.
^Urazel v Pittsburgh (Pa.), 20 Atl. Rep. ^ Kneeland v. Furlong, 20 Wis. 437; see
<)93 [1^90]: hut see State v St. Bernard Peeples v. Byrd (Ga )/25 S. E. Rep. 677;
'(Ohio), 10 Ohio Cir. Ct. Rep. 74; and. awe? seg Otis «. City of Chicago (111. Sup,),
-Connersville ■». Merrill (Ind. App.), 42 N. 43 N. E. Rep. 715; semhle, Guaranty &
E. Rep. 1112. T. Co. v. Chicago (111. Sup.), 44 N. E. Rep
3 Ertle v. Lenry fCal.). 46 Pac. Rep. 1. 832 [1896].
4 Detroit ®. Hosmer (Mich.), 44 N. W. '
150 BNOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 155.
kinds and quality of the materials required, for the purpose of affording
bidders data from which to estimate the cost of the undertaking and to
induce fair and honest competition/ It has been held that the bidder can-
not be required to furnish his own plans." The notice must provide for
plans and specifications."
Such provisions in a city charter or special enactment, that contracts for
public works shall be let to the lowest responsible bidder after advertising
for bids, require that such information be given as will enable the bidder to-
bid intelligently, and that the same requirements, estimates, and specifica-
tions be given each and all the bidders, and that they shall bid upon the
same work and materials and under the same specifications.* Such estimates-
and specifications must be definite as to quantity as well as to quality of
materials required, or the contract will be void/ They should be rendered
upon a cash basis.* Under a charter requiring ordinances for public work
to specify the materials to be used, an ordinance is void if it fails to specify
the materialj^ but the notice need not specify that an asphaltum pavement
proposed is to be of a certain kind of asphaltum.® When the statute
requires that the nature, character, locality, and a description of the
improvement proposed shall be set forth, an ordinance providing for the
paving of a street or the construction of a brick sewer "with necessary
manholes" is not defective because it fails to specify the location of the
manholes and catch-basins.' The exact amount of paving composition
required per square yard need not be specified.*" An act that requires tiie
advertisement to " specify briefly the locality to which it is limited, and the
time in which it must be completed," does not render it necessary to give
the dimensions of the improvement nor the materials of which it is to be
built."
155. The Bid Should Contain neither More nor Less than is Called for
by the Instructions, Plans, and Specifications. — The standard adopted, the
necessity of requiring bidders to conform to it, and to include neither more*
nor less, is at once apparent. The addition of one single item, such as a
different kind of stone, brick, or timber, a different quality of work, or a
longer or better guaranty, destroys the equality and renders the bid worth-
less for comparison with the others which conform to the standard." It
* McBrian v. Grand Rapids, 56 Mich. 95; ^ Verdin -». St. Louis (Mo. Sup.), 27 8..
and see N. P. Perrine Co. v. Pasadena W. Rep 447; Otis v. Chicago (111 ) 43 n'
(Cal.), 47 Pac. Rep. 777. E. Rep. 715.
2 People v. Com'rs, 4 Neb. 150. ' City of Spriugfield v. Matlms 1'^4 111
3 Wilkins^. Detroit, 46 Mich. l':0. 88 [1888]; Vane v. City of Evanston (111*
4 City of Detroit v. Hosmer (Mich ), 44 Sup.). 37 N. E. Ren. 901; Cochrjin v Hyd&
N. W. Rep. 632. Park (111.), 27 N. E. Rpp. 939 [1891]. "
^ Bigler v. New York, 5 Abb. N. Cas. ^^ Wood v. ChicaL^o (III ), 26 N E. Rep
(N. Y.) 51; Reilly v. New York, 54 N. Y. 608.
Super. Ct. 463. " Main^. City of Fort Smith (Ark.). 55
« Kansas Town Co. v. Argentine (Kans. S. W. R. 801 [1887]: avd s^e Felker v
App.), 47 Pac Rep. 542 [1897]. New Whatcom (Wash ), 47 Pac. Rep 505
■> Verdin v. St. Louis ~(Mo. Sup.), 27 S. [1897].
W. Rep. 447. '^ ^^eed u. Beach, 56 How.Pr.(N. Y.) 470.
§ 155.] BID8 AND BIDDERS. 161
cannot benefit a contractor or builder to include in his proposal other or
more or better labor and materials than are specified in the advertise-*
ment. Under an act or charter requiring the work to be advertised, pro-
posals, received, and the contract to be given to the lowest bidder, the bid
can be regarded only as a proposal for the labor and materials so advertised
for, ^nd if the price is not lower than that of any other bidder whose pro-
posal embraces only the labor and materials called for in the advertisement,
he is not entitled to have the contract awarded to him.*
Bids submitted according to certain specifications which contain a war-
ranty of durability for six years cannot be compared with a bid that con-
tains a warranty for more than six years. If the additional warranty were
considered and influenced the award to one who was not the lowest bidder,
the contract will be void.'' When bids were asked for a storage reservoir
capable of holding a water-supply for 100 days' delivery at the rate of
50,000,000 gallons per diem, the contract was not lawfully awarded to a
bidder solely because of his having offered to provide a storage capacity
sufficient for 250 days.' The same was held of a case where a contract was
awarded to one who was not the lowest bidder, but who had furnished
specimens which were not called for in the notice asking for bids, the
contract having been given to him because of the greater fitness for use as
shown by the samples. The contract was declared void, as contrary to the
charter.* Samples or specimens furnished cannot be compared, and the
lowest price then determined by reference to the comparative fitness of the
specimens, unless the advertisement has asked for samples and proposals to
do work according to such samples, so that all should bid with the same
understanding.^ When samples of materials which the bidder will use
have been furnished as required by the instructions to bidders, and the
sample of the lowest bidder is not acceptable to the engineer as provided in
the contract, he cannot demand the award of the contract, nor can it be
given to him, even though he does offer to use brick of another kind which
eomes up to the requirements of the specifications.'
While the acts and requirements of a board of public works are subject
to review by the courts, yet, the acts being discretionary, the' courts do not
interfere unless the motive be fraudulent or does positive injury. They
tolerate restrictions and requirements for which they can assign no just
cause, and that are frequently burdensome to bidders.^ *
^ Boren v. Com'rs of Darke Co., 21 Ohio ^ g^ate v. City of Trenton, 49 N. J. Law
St. 311 [1871]; but see Weed v. Beach, 339.
56 How. Pr. (KY.) 470, where it was held ^ Van Reipen v. City of Jersey City
that when state officers had made an effort (N. J. Sup.), 33 Atl. Rep. 740.
to obtain bids in a certain form and liad * State v. City of Trenton, supra.
failed in the attempt, that they might, as ^ Shaw v. Trentou, 49 N. J. Law 33ft
against such faulty bidders, examine all [1887],
tile bids, and according to their best judg- * Hermann v. State, 11 Ohio Cir. Ct. Rep.
ment award the contract to the lowest 503.
[regular] bidder. ' Semble, Re Marsh, 83 N. Y. 431.
* See Sec. 146, supra.
152 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 156.
When the bid is accepted the bidder is bound only by the specification
shown him at the time he makes his bid.' If other specifications are shown
him when he executes the contract and he agrees thereto, they become a
j)art of the contract and he is bound by them.' Statements or explanations
by members of the board or its clerk will not be accepted in contradiction
to the terms of the formal invitation to bidders. Clerks, engineers, and
individuals have no power to vary the terms of the advertisement nor to
volunteer additional information not given to all bidders. If a contractor
acts upon representations by such unauthorized persons, it seems he does it
at his peril, and must take the consequences.'
156. Contract Must be Strictly According to Terms of Advertisement,
Plans, and Specifications by which Bids were Invited. — It is obligatory upon
the officers of a city or state to execute the contract strictly in accordance
with the terms and specifications by which the bids were made.* The
letting of a contract containing provisions materially more favorable to the
contractor than the requirements under which the bids were invited and
received destroys the benefit of the competition intended to be realized by
the statute. Such contracts are illegal, and their performance may be en-
joined.^ Neither the quantity nor quality of the work or materials nor the
conditions prescribed can be changed, nor new burdens imposed, nor any
alterations made, nor any new undertakings or pledges of the contractor
be considered in awarding the contract.' So when the instructions require
that the price paid for earth excavation should be one fourth that bid for
rock excavation, it was held not improper and that a bid which named
^1.77^ for rock and 44f cents for earth might be rejected for not conform-
ing to the specifications, the price for earth works not being precisely one
fourth that of rock excavations.''
The making of a contract to pave a street 37 feet wide, when the bids
were received for a street 42 feet wide, omitting a space of five feet between
the rails of a street-car track which it was the duty of the car company to
keep in repair, was held not such an irregularity as would warrant the
setting aside the assessments in view of the fact that the specifications did
include the space between the rails, and that the cost thereof was not
included in the assessment, and there was no showing of injury resulting to
property-owners.^
157. When Amount of "Work Cannot be Determined.— When plans and
specifications have been made and estimates prepared of the amount and
1 Hobbs?). Texas, etc., R. Co. (Ark ). 55 ^ Wickwire ®. City of Elkhart (lud.
S. W. Rep. 586 [1887]; Hughes v. Clyde. Sup.). 43 K E. Rep. 316.
41 Ohio 8t. 3;59. e jq-agji ^,. gt Paul, 11 Minn. 174; People
2 Elirin i). Joslyn (111.), 26 N. E. Rep. v. Board of Improvement, 43 N. Y. 227;
1090 [1891]; see also 108 111. 323, and 118 Nichols v. State (Tex.), 32 S. W. R( p. 452.
111. 567. '' Matter of Petition of March, 83 N. Y.
' Lanffley v. Harmon (Mich.), 56' N. W. 435 [1881].
Rep. 761: Littler v. Jayne (111.), 16 N. E. « Vo£?ht v. Buffalo (N.Y. App.), 31 N. E.
Rep 374 [1888]. Rep. 340, reversing 14 N. Y. Supp. 759.
4 Smith v. Mayor, 10 N. Y. 504.
§ 157.] BIDS AND BIDDERS. 153
kind of work and materiuls required, it becomes a comparatively easy
mutter to get bids upon the same basis; but when the quantity and charac-
ter of the work cannot be determined, the standard of comparison must be
an approximate oue. In such cases it is not only prudent but necessary to
so describe the work that a comparison can be made of the several pro-
posals without knowing the aggregate and exact cost of the whole work.
This is usually accomplished by inviting bidders to name prices per unit of
measure, the quantities being given approximately only, to enable the con-
tractor to determine at what price he will undertake a job of the same size
estimated. In such cases it is customary and prudent to insert a statement
that the quantities named are approximate only, and that the contractor
must be his own judge as to the correctness of the estimate given, both as to
quantity and kind.*
Every important item contemplated in the work must be included in
the advertisement and specifications under which tenders were made. A
part of the work may not be given outright to one person or party, nor can
a price be fixed for a considerable part of the work and the remainder be
given for competition. A contract which fixed the expense of part of the
work by agreement between the contractor and the commissioner of public
works, and not by competitive bidding, as required by law, is void as to
such part.' A price cannot be fixed for rock excavation in an advertise-
ment for proposals for constructing a sewer, because it is in violation of the
charter of the city which requires contracts for work and supplies to be
founded on sealed proposals and given to the lowest bidder."
It is a violation of the law for public officers to test the bids by a com-
parison which omits a substantial part of the work to be contracted for.
A contract awarded upon a comparison of bids which omitted an estimate
of the rock excavation anticipated to be met was, therefore, held illegal and
void.'
It has been held that the ratio of the price of rock excavation to that
of earth excavation might be fixed as four to one.* A minimum price to be
paid for labor cannot be fixed, and a contract awarded upon the basis of
such a specification is in violation of the statutory provision requiring work
to be awarded to the lowest bidder.'
Extra work that has not been mentioned in the announcement of the
work and prices named in the proposals cannot be ordered unless excepted
by the statute or especially provided for in the charter. Thus an accept-
-aiice of a bid to do rock excavation and other work which omitted the
consideration of rock excavation, and undertook to pay what the rock
' Mutual Life Ins. Co. v. New York (N. City (111.), 33 N. E. Rep. 602 ; Re Maban,
Y App.), 39 N. E. Rep. 386. 20 Hun (N. Y.) 301.
'Merriam on Petition, 84 N. Y. 596 ^ Brady ij. Mayor, 20 N. Y. 312 [1859].
{1881]; see also Village of Hyde Park v. *Re Marsh, 83 N. Y. 435 [18811
€arton, 132 111. 100 ; Lake Shore R. Co. v. Trame v Felix (Pa.), 31 Atl. Rep. 375.
* See Sec. 151, art. 13, supra, and Sees. 588-589, infra.
154 ENGINEERING AND ABCEITECTUBAL JURISPRUDENCE. [§ 157.
excavation was reasonably worth as extra work, was declared against the
policy of the law/ Under a contract by a city which provided that the
architect might direct deviations and the increased cost be added to the
agreed price it was held that the city was not bound by the architect's
promise and order for piling, necessary for securing a firm foundation,,
because it had not been advertised and mentioned in the specifications for
the work and proposals received for its construction/
The contract as drawn and executed must not include extra work, nor
contain other or different classifications than those competed under and
included in the proposals.^ The prices must not be changed when the con-
tract is given from those named in the bid, nor provisions made for extra
work, as an allowance of 15 per cent, additional to the actual cost, when no
such provision has been put in the notice for proposals. If such acts are
committed, they may render the contract void and leave the contractor with-
out any recovery for the work he has done. " For," says the court, " though
this principle of the law may work hardships, yet it is better that an indi-
vidual should occasionally suffer from the mistakes of public officers or
agents than to adopt a rule which by improper combinations or collusions
might be turned to the detriment or injury of the public." *
It does not matter that the bid is the lowest, or that it is less than the
amount appropriated specially for the work; the difference between the sum.
bid and the amount appropriated cannot be recovered, as such additional
contract is not binding on the state, because not let in the manner provided
by law/ However, it has been held in New York State that when the
appropriation for a public work is limited, and a contract is made for it
according to a plan to be adopted, and with a proviso that the cost shall be
limited to a certain sum, if the price agreed upon is within that amount it
is a valid contract, even though it reserves authority to make such changes
of detail as may be necessary, and authorizes the engineer directing the
work to determine the price of the extra work required."
Any property-owner or taxpayer may maintain a suit to enjoin the prose-
cution of work under an illegal contract or the payment of the prices specified,
even though it be conceded that the suit is brought in lieu of a suit by an
unsuccessful bidder.'
Extras cannot be ordered, for if that were allowed the statute would be
no safeguard to the public interests. The contract might include but a
' McBrian v. Grand Rapids, 56 Mich. 95 93 U. S 247-257, 96 U. S. 691, 2 Clifford
[1885] ; Brady v. Mayor, 20 N. Y. 313 590; Texas Transp. Co. v. Boyd, 2 S. W.
[1859]. Rep. 364.
'Stuart f). Cambridge, 125 Mass 102; ^jsrichols v. State (Tex.), 32 S. W. Rep.
Litler «. Jayne (111.), 16 K E. Rep. 374 452.
[1888]; but see Fleming v. Suspension «Kingsley v. Brook'yn, 78 N. Y..200
Bridire, 92 N. Y. 368 [1883]. [1879].
afullock^j. Webster County (Neb.), 64 ' Moynahnn v, Birkett, 31 N. Y. Supp.
N. W. Reo. 705. P93 • Mazet «. Pittsburgh (Pa. ), 20 Atl. Rep.
4 Dickinson v. City of Pougbkeepsie, 75 693 [1890].
N. Y. 65 [1878] ; and see also 11 Minn. 174,
§ 157.] BIDS AND BIDDERS. 155
m
part of the work, while a larger and more profit-paying part could be ordered
as extras.' Thus uuder a contract awarded by a village to the lowest bidder
to do flagging, paving, and curbing, the village having undertaken to do the
necessary grading and to furnish the sand and gravel, it was held that the
contractor could not recover for the sand and gravel he had furnished in
obedience to a resolution by the trustees of the village requiring him to do
so, as the resolution was in violation of the city charter, which required that
sealed proposals for work should be advertised for and the contract awarded
to the lowest bidder.'' It has been held that where a contract was let for the
laying of Nicholson pavement (patented) and ordinary stone cross-walks,
after proposals for Nicholson pavement only the assessment for the work
could be vacated.^ Yet in another case it was held that where a contractor
did work necessary to carry out his contract, either as extra work or to
meet exigencies unforeseen when the contract was made, he was entitled to
recover therefor on a quantum W2erwi7, though the city charter provide that
if any work shall involve an expenditure exceeding seventy-five dollars it
shall be done by contract let to the lowest bidder/
The contract must be confined to the work and materials contained in
the proposals. Nothing can be added or omitted without due notice having
been given, as the object of the law is to secure competition and the benefits
to be derived from it. The contract must be the same that was advertised.^
A change by public officers of a foot in the depth to be dug for curbing,
and permission to the contractor to appropriate stone that was by the speci-
fications to be used for filling in a certain place, he furnishing earth which
could be used on the street, are unauthorized and void. The proposals
made by the contractor and the specifications form the only basis of a con-
tract, and no contract can be made under any oth6r terms.
If the contractor execute work not in strict conformity to such specifica-
tions and proposals, he is entitled to no compensation for his work, for there
is no contract, and none can be implied." A recent case has even decided
that where, after letting the contract for grading a street according to plans
and estimates, an ordinance was passed changing the grade, but no new plan
or contract was made, though the grading was done in accordance with the
last established grade, an assessment for such work was invalid.^ A change
in the lines or levels which lessens the amount and the cost of the work may
render the contract inoperative, and invalidates the assessment.® A board of
' McBrian v. Grand Rapids. 56 Mich. 95. « Bonesteel v. The Mayor, 22 N. i . 162
2 Parr v. Village of Greenbush, 11 New [1860] ; but see Barkley v. Oregon City
York 246; and see also 76 N. Y. 463 ; hut (Or.), 33 Pac. Rep. 978.
see Brvson v. Jolinson Co. (Mo.), 13 S. ' City of Argentine ?). Simmons (Kan.),
W Rep. 239 ; McBrian v. Grand Rapids. 37 Pac. Rep. 14 ; Argentine v. Dagett. 37
m^\c\\.^o[\^Qh], and oiJier cases reviewed Pac. Rep 14; «ewiJ^« Hague «. Philndel-
therein. phia, 48 Pa. St. 527 [1865] ; but see Fuller
^Re Eager. 46 N. Y. 100. v. Grand Rapids (Mich.), 63 N. W. Rep.
* Abel Is V. City of Syracuse (Sup.), 40 N. 530.
Y. Supp. 233. ** Warren v. Cbandos (Cal.), 47 Pac. Rep.
^ Nash V. St. Paul, 11 Minn. 174. 133.
156 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 15a
public works bus no authority to exact from the contractor a bond that the
pavement will last for five years where it is not required by the resolution of
intention/ If, as is sometimes tlie case, the charter of the city provides that
repairs shall be paid for by the city, and improvements by the property-
owners benefited, the same to be let to lowest bidder; an ordinance, adver-
tisement, and letting of a contract for the construction and maintenance
(or repair) of a street together and to be paid for by either party alone, is
void, being in violation of the charter.' *
158. Right to Make Changes and Alterations Reserved. — Whether public
oflBcers can reserve the right to make changes and alterations in the specifi-
cations by giving notice of such reservation in the advertisement for proposals
may well be doubted. Certainly not if the work were for a lump sum, nor
under any circumstances which might foster favoritism or lessen the obliga-
tions or work which the contractor had assumed. Labor and materials paid
for by the unit of measurements must be subject to such changes, and it can
work no hardships to the public nor to the contractor. Even when it is pro-
vided in the contract that the contractor shall make any alterations in the
form, dimensions, or materials when directed by the board of public works;
that the work shall be prosecuted in such order and at such places as the
board of public works may direct; that the excavations be made to depths
shown on profile and plans on file, of such widths and in such directions as
may be necessary; that any work required to be done that is not specified shall
be done in accordance with the directions of such board, it is held that the
board was not authorized to order any material change in the plan as to loca-
tion or course of a sewer (which was being done at a price per linear foot),
without the approval of the city council." If in the construction of works it is
anticipated that difficulties, requiring changes, will be encountered, or that
the work may become much more burdensome, as by the meeting of quick-
sand, hard-pan, or rock excavation, which would largely increase the cost, and
the extent of which it may be impossible to ascertain in advance; such contin-
gencies should be mentioned in preparing the specifications and contracts, and
their payment be provided for, so that they may be taken into account by bid-
ders in making their proposals by the cubic yard, linear foot, unit weight, etc.*
159. Instances Where Contract has been Sustained. — The fact that plans
for street improvement were in the alternative is immaterial in the absence
of proof that anyone was misled or prevented from bidding, or that the cost
of the work done was enhanced thereby.^
Such contracts are divisible. When a contract has been let for work, a,
1 McAllister 'o. City of Tacoma (Wash.), Rep. 336.
87 Pac. Rep. 447. 4 McBrian v. Gmnrl Rapids, 56 Mich. 95;
2 Verdin «. St. Louis (Mo.), 33 S. W. Insley v. Shepard, 31 Fed. Rep. 869 [1887];
Rep. 480; and see Santa Cruz R. P. Co. v. accord Kingsley v Brooklyn, 78 N. Y.
Broderick (Cal.), 45 Pac. Rep. 863; and 200 [1879]
Cole V. People (111.), 43 K E. Rep. 607. ^ (jilmore v. City of Utica (N". Y App ), 29
»Compau V, Detroit (Mich.), 64 N. W. N.E.Rep.841, a^rm/2^15N.Y.Supp.274.
* See Sec. 334, infra.
§ lot).] BIDS AND BIDDERS. 157
part of which has been legally authorized and contracted for, and another
part of which is illegal and unauthorized, the contractor may recover for that
whicli was done in pursuance of the charter and according to law.' When
a contract is in violation of the charter of a city as to a part of the work, it
will render the assessment for the work so far void, as the work done was con-
trary to the provisions of the charter, and will not furnish a ground for vacat-
ing the whole assessment.' It may be reduced by the amount which it may
havo been increased by reason of fraud or substantial error or irregularity."
160. Works Whose Cost Exceeds a Certain Amount Within the Statute,
Charter, or Ordinance. — The question often comes up as to whether the
statute or charter requires all work, however insignificant, to be included in
the specifications and contract, and if it includes alterations and additions
and extras from whatever cause. The delay and annoyance resulting from
such a requirement would be expensive and aggravating beyond measure if
it were necessary to advertise and wait for proposals for every small extra
item or minor change required on or in works. This trouble is usually
obviated by a clause in the act or charter that only such contracts for mate-
rials and work whose cost is more than a specified sum, e. g., $500, shall be
advertised and let to the lowest bidder."
The addition of such a clause, if the sum is made large, enables publio
officers to let work in parts and to evade the law, thus defeating its very
object. Courts are alive to this fact, and seek to require the most scrupu-
lous care and strictest honesty of all parties. Evidence of dishonest prac-
tices will be construed against the contractor and in favor of the public.
When a certain amount is specified as the limiting cost of work that may
be let without advertising for proposals, it must not be exceeded. Under an
act requiring *' any expenditure of more than $2500, to be let to the lowest
bidder after advertising for bids," an informal contract for work and mate-
rials, including eight bronze statues, to cost more than $2500, without
advertising for bids, was declared void; and it w^s held that they could not
be included under an advertisement and specification " for the iron inner
dome and other ornamental ironwork," nor did verbal explanations made at
the time the proposal was made remedy the omission of them/
When proposals have been made to furnish labor and materials for a
structure according to a schedule of prices for specific qualities, and a con-
tract was subsequently entered into, to erect the structure for a certain sum
of money, "being the aggregate cost at the prices specified in the said pro-
posals," it was held that the statement of the cost was intended only as an
^ Texas Transp. Co. ■». Boyd, 2 S. W. *It may be doubted if $500 is an appro-
Rep. 364 [1886] ; seealso InreM^QGovmick, priate sum. See Littler v. Javnc (111.), 16
60 Barb. 128 [1870], not fatal to tlie assess- N. E. Rep. 374 [1888], where the act was
merit. amended, making the sum $2500 instead
2 Merriamin Petition, 84]Sr.Y. 596 [1881]. of $500: which seems an opposite extreme.
3 Jn re Anderson, 17 K E. Rep. 209 (N. ^ Littler v. Jayn^ (111.), 16 N. E. Rep.
Y. 1888); In re McCormack, 60 Barb. 128 374 [1888].
[1870].
158 ENOINEEHINQ AND ARGHITEGTURAL JURISPRVDENCE. [§ 161.
estimate, and that the intention was to pay the prices named for such mate-
rials and labor as were actually furnished/
161. What Work Comes Within the Statute.— A charter of a city that
requires that "all contracts for doing work and furnishing materials for an
improvement shall be given to the lowest bidder " was held not to apply to a
contract to furnish hose to the fire department;' but a contrary construction
was put upon the same charter the following year, when it was held that a
charter that required that all contracts should be awarded to the lowest bidder
did include a contract to purchase fire-hose, and that an award of a contract
contrary to the charter, and including additional qualifications not included
in the estimate and specifications advertised, was void.* The work of clean-
ing streets of a city, and of supplying it with water, have been held to come
within the prohibitions of the charter against making contracts for work
without previously advertising for proposals." A statute which requires all
contracts for the improvement of roads to be let to lowest bidder has been
held to include contracts for repairs to permanent bridges and culverts,^ and
cells of a jail have been held to be a part of a public building.^
The removal of garbarge at $800 per month was held not to be within a
statute requiring " that work necessary to be done to complete a particular
job and involving more than $1000 " should be let to the lowest bidder, as
the work in question was not done to complete a particular job and did not
necessarily involve an expenditure of $1000 or more."' If it be provided that
no contract or purchase involving an expenditure of more than $1000 shall be
made without first advertising for bids, an exchange, without advertising f( r
bids, of pumping-engines incurring an expenditure of more than $10,000 will
not bind the city, even though it is made by order of the city council authoriz-
ing the board to make such an exchange, such order being held not to abro-
gate the terms of the ordinance.^ So under a contract for the construction
of a public building a substitution of another kind of work which increases
the amount to be paid for the building by more than $1000 cannot be made."
The cost of the materials substituted, it seems, is not to be added to the cost
of furnishings whose place they take.'" Verbal explanations that certain
work will be required and certain materials must be furnished are not suf-
ficient to include items not mentioned in the advertisement or specifications,
though they be a part of, or properly belong to, the structure advertised.
They cannot be included if their cost exceed the statutory limit."
1 Swift v. New York, 26 Hun <^.Y.) 508, « Ertle ®. Leary (Cal.), 46 Pac. Rep. 1.
reversed by Court of Appeals 89 IST. Y. 53. ' Swift v. Mayor, 83 N. Y. 528.
2 City of Trenton «. Shaw (N. J.), 10 s ^orthington «). Boston (Mass.), 41 Fed.
Atl. Rep. 243 [1887]. Rep. 23 [18901
3 8ta«e 1). City of Trenton (K J.). 13 » Brady v. New York, 55 N. Z, Super.
All Rep. 902 [1888]. Ct. 45; and see Sadler v. Eureka Co.
4 State V. Kern. 51 K J. Law 259 [1889], Comm'rs., 15 Nev. 39; anc? Swift v. Mayor,
Water; Davenport v. Klelnschmidt, 13 83 N. Y. 528.
Pac. Rep. 249. Water; Frame v. Felix ^^ Brady v. New York, 112 N. Y. 480.
(Pa ), 31 Atl. Rep. 375 " Littler v. Jayue (111.). 16 N. E. Rep.
6 Follmer v. Commissioners, 6 Neb. 204. 374 [1888].
§ 163.] BIDS AND BIDDERS. 159
162. State or City to Furnish Certain Things at a Specified Price. — It
is sometimes the practice of public corporations to purchase a certain brand
or make of materials, the engineer and council being satisfied that they
are the best, or it may be necessary to secure conformity thoughout a system
of works. When a city has contracted for supplies under such circumstances
or has them in stock, it may require the contractor to purchase them at
the price paid by the city and use them in the works.'
163. Contracts for Patented Articles or Materials of a Special Manufac-
ture.— If proposals are invited in good faith, it has been held that a city may
"Contract for the use of such materials as it deems best, though such materials
are the subject of private ownership or the product of exclusive manufac-
ture, or the methods of preparing them are covered by patents."
An ordinance providing for paving a street with a particular kind of
asphalt in which there is a monopoly is not void, though the city charter
provides for letting contracts to the lowest responsible bidder,' the council
having the right to reject the bid if it is exorbitant; the fact that there is a
monopoly does not require that it be assessed," If the thing needed for pub-
lic use is part of a patented article and can be bought only in one place, it is
sometimes held that the article need not be advertised.^
In New York .state it has been held that the provision which entitles the
person making the lowest estimate to have the contract awarded to him does
not apply to estimates for patented articles or processes." Some states hold
to the view that such contracts are not prohibited; but the tendency of the
courts, according to Judge Dillon,^ is that the statute prohibits any contract
that cannot be advertised or let in the manner it prescribes, and he cites
oases in which it has been held that a contract for a patented pavement with a
person who had the exclusive right to lay the same was void.^ Mr. McKinney,
in the American and English Encyclopaedia of Law, says that the majority
of the cases take the same view, and hold that the statutory prohibition ap-
plies to patented articles, citing numerous cases."
It is impossible to tell, except in states where it has been already decided,
what law would be sustained, and engineers or contractors would do well to
take good counsel if the question come up in their business. The cases which
hold that materials or processes which are patented or are the subject of a
^Merriaai in Petition, 84 N. Y. 596 20 Atl. Rep. 646; accord Hobartw. Detroit,
[1881]. 17 Mich. 246; Matter of Petition of Dugro,
2 City of Newark v. Bomel (N. J.), 31 50 N. Y. 513; hut see Dolan v. Mayor of
Atl. Rep. 408; N. P. Perrine, etc., Co. v. N. Y., 4 Abb. Pr. N". S. (N. Y.) 397.
Qiiackenbush (Cal.), 38 Pao. Rep. 533; ^ People «. Van No rt, 65 Barb (N. Y.)
State V. Board of Comra'rs (Kan.), 45 Pac. 331; but. see Boon -» Utica, 26 K Y. Siipp
Rep. 616. 932: and Matter of Eager, 46 N. Y. 100.
3 Verdin v. City of St. Louis (Mo. Sup.), ' Dillon's Munic. Corp'ns., § 467 4th ed.).
S3 S. W. Rep. 480. Burgess, J., dissenting. ^Dillon's Munic. Corp'ns', 8 468 note
4 Verdin v. St. Louis (Mo.), 27 S. W. Rep. (4th ed. 1890).
447. 9 15 Amer. & Eng. Ency. Law 1093-94.
* Silsby Manfg. Co. id. Allentowu ',Pa.).
160 ENGINEERING AND ABGHITEGTURAL JURI8PRUDENGE. L§ 164^
monopoly may be made the subject of a proposal and contract are given
below/ as well as those which are to the contrary.'
164. Instances where Contracts have been Made for Things in Which there
"was a Monopoly. — Perhaps the law will be better understood by a few cases*
Those which most frequently occur are in contracts for patented pavements
and sidewalks, and there is no uniformity iu the decisions of the different
states. There are several cases of patented machines, one a pump, in which
it was held that the fact that the pump authorized was patented did not
relieve the board from the necessity of advertising for bids.*" Another case
decides that a requirement that work shall be let to the lowest bidder does
not forbid a contract for a garbage crematory, parts of which are patented,,
when the patents have been offered to the city or any contractor at a fixed
price, and there is in fact free competition as to work and materials.* In.
the same state it has been held that a city cannot contract for a patented
pavement, no arrangement having been made with the patentee binding him
to sell the privilege of using the process to the bidder at a fixed price.*
Where the royalty required to be paid on a patented article required to be
used in the performance of a contract for public works was fixed, and the
proposal inviting bids for the contract definitely stated that the royalty
should be paid by the accepted contractor in a particular way, and several
bids were actually made lor the work, and the contract was let to the low-
est bidder, there was actual competition by bidsj in ccrmpliance with the
law requiring the letting of the contract to the lowest bidder."
In Louisiana it has been held that a city may contract with the highest
bidder in order to remove and destroy, under certain regulations, the offal
that is annoying to health.'
When the job embraces several kinds of work, some of which are patented,,
while others are not, it has been held in New York that separate proposal*
ehould be invited, one for that part which is not patented, and another for that
which is patented and for which there can be no competition.® Specifications
in the alternative have been allowed in a case where the lathing to be used was
required to be a certain "patent lathing," or "some other lathing of equal
quality to be manufactured from sheet iron within the limits of the city." •
»Hobart v. Detroit, 17 Mich. 246; Re 699; Burgess ?j. Jefferson City, 21 La. Ann.
)iigro, 50 N. Y.513: N. P. Perrine Co. v. 143; Dean v. Charlton, 23 Wis. 590; Dean
Quackenbush(Cal), 38Pac. Rep. 533;Ver- v. Borchsenius, 30 Wis. 236; Barber As-
din V. St. Louis (Mo.), 27 S. W. Rep. 447; phalt Co. v. Hunt, 100 Mo. 22.
Dean «;. Charlton, 23 Wis. 590; Kilvington v. » Worthington v. Boston, 41 Fed. Rep. 23^
City of Superior (Wis.), 53 N. W. Rep. 487; [1890].
Me McCormack. 60 Barb. 128; Worthington * Kilvinsrton v. City of Superior (Wis.),
«. Boston (Mass.), 41 Fed. Rep. 23 [1890]; 53 N. W. Rep. 487.
Harlem Gas Co. v. New York, 33 N. Y. ''Dean v. Charlton, 23 Wis. 590.
809.- Nebraska City «. Nebraska Gas Co., 9 * State ■». Board of Com'rs of Shawnefr
Neb. 339; Ynrold ti. Lawrence, 15 Kan. County (Knn.), 45 Pac Rep. 616; seealso
126 People o.VanNort, 65 Barb. (N.Y.) 331. Detroit v. Robinson, 38 Mich. 108.
estate V. Elizabeth, 35 N. J. Law 351. "f State v. Payssan (La.), 17 So. Rep. 48U
Boon V. Utlca, 26 N. Y. Supp. 932; Nich- s j^^ Eager, 46 N. Y. 100.
Olson Pavement Co. v. Painter, 35 Cal; ^ Mulrein v. Kalloch, 61 Cal. 523.
§ 165.] BIDS AND BIDDERS. 161
Contracts for work or public undertakings for wliich franchises or exclu-
sive rights already exist, and by which competition is prevented, it seems are
not within the statute requiring all contracts for work and materials to
be advertised and let to the lowest bidder. It was therefore lield that a
contract made without inviting proposals with a gas company who had the
exclusive right to supply a particular part of a city with gas was valid and
binding.^ A contract with the only electric-light company in the city with-
out advertising was held valid."^
When professional services, as those of a surveyor, are required and he
is to be employed, it has been held that the common council or board have
the power to select with references to securing the necessary skill, and no
advertisement is required." It has therefore been held that it was not
necessary to advertise and to give to the lowest bidder a contract to fur-
nish fireworks, for the reason that the articles were of a peculiar character,
depending for their value upon the personal skill of the manufacturer.*
This is an interesting case, and the question may be properly asked if a
contract for the erection of a lighthouse would come under the same rule,
it having been held that the construction of such a structure was particu-
lar work, depending upon the personal skill of the contractor, and such
work as could not be completed by his executor or administrator.^ It is
thought not.
'The renting of chambers for the recorder of the city of New York has
been held not to fall within a provision requiring all contracts for work or
supplies to be let to the lowest bidder ;" nor do contracts for carriage hire
of aldermen and councilmen when engaged in public service.'
165. Conditions and Stipulations as to the Performance anfl Completion
of the Work.
1. Worh and Materials to he to Satisfactio7i of Engineer or Architect,
Bidders will be required to furnish materials and to complete the
entire work to the satisfaction of the engineer and in substantial accord-
ance with the specifications hereunto annexed and the plan therein
referred to. No extra compensation, beyond the amount payable for
the several classes of work before enumerated, which shall be actually
performed at the prices therefor to be specified by the lowest bidder^
shall be due or payable for the entire work.
1\ Ins:pectio'ti and Acceptance of Work.
Each bidder must understand that should his proposal be accepted
the materials delivered and the work performed by him, at any and
all times during the progress of the work, and prior to final accept-
ance and payment, the same shall be subject to the inspection of the
engineer or architect, or his authorized agent, with the full right to
» Harlem Gas Co. ■». New York, 33 N. Y. '^Detwiller «. Mayor, 46 How. Pr. (N.-
309; Nebraska City ®. Neb. Gas Co., 9 Neb. Y.) 2i8.
339 5 Wentwortli v. Cock, 10 A & E. 45.
« Hartford v. Hartford Elec. Lt. Co., 65 ^ d ivie^ v. New York, 83 N. Y. 207.
Conn. 324. "" Smath v. New York, 21 How. Pr. 1..
8 People V. Flagg, 5 Abb. Pr. (N. Y.) 232.
162 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 165.
accept or reject any part thereof that in the opinion of the engineer
or architect, or his authorized agent, is not strictly in accordance with
the drawings and specifications; and that he must, at his own expense,
within a reasonable time, to be specified by the engineer or architect,
remedy any defective or unsatisfactory materials or work, and that in
the event of his failure to do so after notice the engineer or architect
will have the full right to have the same done and to charge the cost
thereof to his account. Each bidder must understand that, should
his proposal be accepted, inspection of or payment for, any portion of
the work embraced therein by the engineer or architect, or his author-
ized agent, will not relieve him of responsibility to remedy any defec-
tive materials or workmanship, at his expense, at any time before final
inspection and acceptance of and final payment for all of the materials
and work contemplated by and embraced in his proposal.
2. Prices to Include Everything.
The prices bid are to cover all expenses of furnishing materials
[except. jWhich will be furnished by the company or city]
and to cover all expenses and furnishing of tools, labor, and utensils
incidental to and necessary for the full completion of the work in con-
formity with the contract and specifications.
2\ Price Bid to Include Everything.
Bidders will state a price for completing the work specified in the
bill of quantities and described in the contract and specifications,
which price is to include and cover the furnishing of all the material
and labor and the performance of all the work requisite or proper for
the purpose, and the completing of all the above-mentioned work and
the materials in the manner set forth, described, and shown in the
specifications and on the plans furnished for the work, and in the form
of contract exhibited and furnished by the engineer.
3. No Deviation from Plaris and Specifications.
Bidders are informed -that no deviation from the specifications will
be allowed unless a written permission shall have been previously
obtained from the engineer or architect.
4. Bonds to Maintain and Keep in Repairs.
The successful bidder will be required to furnish bonds to maintain
and keep in repair the whole of the works undertaken by him, and all
other works, roads, and streets interfered with or rebuilt, for a period
■of months after the full performance and completion of the
oontract.
5. Protection of Work and Materials,
The successful bidder will be responsible for the proper care and
protection of all materials delivered and work performed bj him until
the completion and acceptance of and final payment for all the work
embraced in his proposal, and part payments from time to time on
account of such materials and work will not in any way relieve him
of such responsibilty.
6. Building Regulations.
The successful bidder must fully comply with all municipal building
ordinances and regulations, and obtain all required licenses and per-
mits, and pay all charges and expenses connected therewith, and be
responsible for all damage to persons or property which may occur in
connection with the prosecution of the work.
7. Skilled Labor.
The .successful bidder is to employ omly skilled and reliable workmen
§ 165.] BIDiS AND BIDDERS. 163
in the performance of the work, and must agree that the engineer or
architect shall have the right to decide upon and discontinue the serv-
ices of any woriiman employed by him on the work who does not
possess satisfactory skill and qualiticatious or is otherwise objectionable.
8. Bidder Must Furnish Bond for Payment of Labor and Materials.
Each bidder must distinctly understand that if his proposal is
accepted, he will be required to execute a formal bond or contract; and
the part and final payments, as the vouchers are issued on account of
the contract, shall be subject to a reserved right of the engineer or
architect to withhold any part of the money to be paid under the con-
tract in the event of the failure of the contractor to promptly make-
payments to all persons supplying him with labor or materials in the
prosecution and completion of the work provided for in the specifica«
tions, drawings, and proposal.
9. Commencement and Progress of Work.
The work must be commenced ten days after the execution of the
contract and prosecuted to completion without interruption or delay;
the whole work is to be completed and delivered by the .... day of
189..
10. Number of Days Required to Complete the Work.
Each bidder must also state the number of working-days he will
require to complete the work, which number of days will be counted in
the comparison of bids at the rate of twenty-five dollars ($25) per day.
11. Contractor's Delay.
All additional expense to the by reason of extension of tho
contract at the request of the contractor shall be deducted from pay-
ments due or to become due the contractor at the rate of
dollars for each and every day.
11\ Liquidated Damages.
The damages to be paid for each day that the contract may be unful-
filled after the time specified for the completion thereof shall have
expired are, by a clause in the contract, fixed and liquidated at
dollars per day.
ll^ Liquidated Damages.
Each bidder must understand that should his proposal be accepted
the sum of dollars as liquidated damages will be fixed for each
and every day's delay not caused by the that may occur beyond
the time stipulated in his proposal for the supply of all the materials
and the performance and completion of the work.
ll^ Liquidated Damages.
Liquidated damages of dollars per day are fixed by the
terms of the contract for each and every day that the contract remains
unfulfilled after the date of completion specified.
12. B 07111 s for Early Co^npletion.
A bonus of . . . .dollars per day will be paid for each and every day
that the work is completed before the date specified for completion.
13. Payments on Estimate.
After the acceptance of a proposal, and execution and approval of a
formal bond and contract, monthly payment will be made on account
of the work actually, done and in place in the structure; and such
payments will be based upon the estimated value of the quantity of such
work, computed from the contract unit of value, less 10 per cent, to be
retained until the entire and satisfactory completion, final inspection,
and acceptance of all the materials and work embraced in the contract.
164 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 166.
at which time final payment of the balance due will be made; but no
payment will be made for any materials delivered, but not actually put
in place.
14. Payments to Contractor Only,
Payments will be made only to principals. Assignments and powers
of attorney to collect moneys will not be recognized.
15. Payments Contingent on Appropriations.
Payments will be made upon monthly estimates, but contingent upon
such appropriations as may from time to time be made by law, and ten
(10) per cent, will be reserved from each payment until the completion
of the contract.
16. Officers Not Responsible.
The payments to the contractor shall be made out of the funds under
the control of the city, county, or state in their public capacity; and no
member or officer of such city, county, or state, whether or not a party
to this agreement, is to be personally responsible to the contractor.
17. Cannot Assign or Sublet.
The original contractor will be held to the performance of the con-
tract, and transfers of contracts or of interests in contracts are prohibited
(by law).
166. Conditions and Stipulations as to Performance and Completion of the
"Work. — The above stipulations are common to construction contracts and
■belong strictly to the contract itself, and are treated and discussed in sec-
tions specially devoted to them in Part III.* They do not enter into the pro-
posal except as being terms of the agreement which the bidder must execute.
167. Bond or Certified Check to Insure the Execution of the Contract, and
Security for its Faithful and Complete Performance.
1. Certified CTieclc.
Each bidder must submit with his proposal a certified check for ... .
dollars , drawn to the order of , as a guaranty that he will
fully and faithfully comply with the terms of his proposal should the
same be accepted, and that within ten days after the form is sent him
he will execute a formal bond and contract in accordance therewith.
V. Bond or Certified Check.
Each bid or proposal must be signed and sealed by the bidder and
witnessed, and be accompanied by a bond, approved by , in a
sum equal to one tenth of the sum bid, as liquidated damages, con-
ditioned that the party making the bid shall, within ten days after the
acceptance of said proposal, execute the contract, with security approved
by the engineer [commissioner] for its faithful performance. In case
the bid be accepted, the formal bond to be executed and approved will
be attached to and form a part of the advertisement, instructions, and
conditions, specification, accepted proposal, letter of acceptance, and
the drawings, all properly signed, within the time specified in this
advertisement; or, in place of the bond to accompany proposal, the
bidder may deposit with the commissioner a sum of money or a properly
certified check of the same amount payable to , said check to
be returned to the bidder on the execution and delivery of the final con-
tract and the bond required for its faithful performance.
See Sees. 200-800. infra.
§ lt37.] BIDS AND BIDDERS. 165
V. Bid Must he Accompanied by Certified Chech.
No proposal will be received and considered unless accompanied by
either a certified check upon a state or national bank drawn to the order
of. ....... or money, to the amount of. . . .per centum of the amount
of tlie security required for the faithful performance of the contract.
1'. No bid will be considered which has not responsible sureties upon
its accompanied bonds, or, if without bond, is not accompanied by a cer-
tified check, as aforesaid.
1\ Bond for Execution of Contract (U. S. Form).
The bond attached to each bid must be signed by two responsible
sureties, to be certified to as good and sufficient guarantors, by a judge
of tlie United States court, a United States district attorney, collectoi
of customs, or by some other officer under the United States government.
Each guarantor must justify in a sum not less than one tenth of the
whole amount of the proposal.
2. Forfeiture of Check.
Should the successful bidder fail or refuse to execute a formal bond
or contract within ten days after the same is sent to him, his certified
check may be declared forfeited, the letter of acceptance of his proposal
may be revoked, and all obligations iu connection therewith will be
released and annulled.
2\ Forfeiture of Check.
If the successful bidder shall refuse or neglect, within five days after
notice that the contract has been awarded to him, and that the adequacy
and sufficiency of the security offered by him is approved , to
execute the contract, the amount of the aforesaid deposit made by him
shall be forfeited to and retained by as liquidated damages for
such neglect or refusal; but if he shall execute the contract within the
time aforesaid, the amount of his deposit will be returned to him.
forthwith.
3. Delivery of Certified Chech.
Such check or money is not to be inclosed in the sealed envelope
containing the estimate, but it is to be delivered to No pro-
posal will be received until such check or money has been deposited and
examined and found to be correct.
4. Return of Certified Checks.
All deposits except that of the successful bidder will be returned to
the persons making the same within three days after the contract is
:a warded. <
4'. Return of Certified Check.
The certified check of the successful bidder will be retained until the
■execution of a formal bond or contract, and the approval of the same
Dy , and the certified checks of the unsuccessful bidders will be
returned within three days after the proposal of the successful bidder
.shall have been accepted.
6. Names of Sureties.
Bidders are required to name the sureties or surety company who will
sign the required bond in case the contract should be awarded to him
or them.
-6\ Coyisent of Sureties.
Each bid or estimate shall be accompanied by the consent in writing
of two householders of the state of , with their respective placea
of business or residence, to the effect that :
166 ENOmEERING AND ARGHITEGTURAL JURISPRUDENCE. [§ 167.
a. If the contract be awarded to the person making the estimate, they
will upon its being so awarded become bound as his sureties for its
faithful performance,
b. If he shall omit or refuse to execute the same, they will pay to the
corporation any difference between the sum to which he would be
entitled upon its completion and that which the corporation will be
obliged to pay to the person to whom the contract may be awarded at
any subsequent letting, the amount to be calculated upon the estimated
amount of the work by which the bids are tested.
5^ Oath of Sureties.
The consent above mentioned shall be accompanied by the oath or
affirmation in writing of each of the persons signing the same that he
is a householder or freeholder in the state of , and is the
owner of property in value equal to the amount of the security required
for the completion of the contract and stated in the proposals, over and
above all his debts of every nature, and over and above his liabilities as
bail, surety or otherwise; that he has offered himself as a surety in good
faith and with an intention to execute the bond required by the law if
the contract shall be awarded to the person or persons for whom he
consents to become surety.
6. Acceptability of Sureties.
The adequacy and acceptability of all sureties and the amount and
character of the surety for the fulfillment of the contract will be
determined by the commissioners after the proposals are opened, the
award made, and the contract signed.
7. Sureties Must be Residents of State.
If a bond be required with the contract, the sureties thereon must be-
residents of the state of and satisfactory to the commissioner^
8. Surety Not an Officer or Partner,
An officer of a corporation will not be accepted as surety for such
corporation, nor will a firm be accepted as surety for a member of the
partnership.
9. Surety Must Not be in Default.
No person will be accepted as surety who as a contractor has failed to
satisfactorily perform any contract with the. , or as a surety has
failed to abide by a bond for the performance of such a contract, or as a
guarantor has failed to abide by a guaranty accompanying a proposal.
The surety must be signed by two responsible persons, who must justify
before an official, authorized to administer oaths.
10. Time in Which to Execute the Contract.
The person or persons to whom the contract may be awarded will be
required to appear at the office of the commissioner of public work»
with the securities offered by him or them and execute the contract
within ten days (not including Sunday) from the date of notification of
such award and that the contract is ready for signatures and sign the
contract in triplicate.
11. Ratio of Security to Proposal.
The security required for faithful performance of the contract and
specifications will not be more than one fourth (\) of the amount of the
contract, and the right is reserved to increase the amount of said security
after proposals are opened to a sum not exceeding one third (^) of the
total consideration of the contract.
§ 168.] BIDS AND BIDDERS. .167
168. Bond and Certified Check to Insure the Execution of the Contract
and Surety for Faithful Performance and Completion of the Work. — Tlie
bidder may be required to file, before the bids are opened, a satisfactory
bond or certified check, conditioned that he will enter into a contract with
good and sufficient surety if he is found to be the lowest bidder. Such a
requirement is reasonable, and the lowest bidder cannot insist upon the
acceptance of his bid without first filing such bond.' If he has ne^le ted
to do so before the proposals have been opened, it may be doubted if he can
do so afterwards if the board refuse him the privilege. It seems tliat public
officers may in their discretion excuse the failure to accompany the bid with
such a bond. It has been held that a bond furnished on the same day that
the proposal was accepted was sufficient.'
If, however, the statute or charter provides that whenever any improve-
ment shall be declared necessary the council shall authorize the department
of city works to advertise for bids under seal, which bids shall be publicly
opened and announced, with the name of the bidder, the amount proposed,
*'and the names of the sureties,'^ it will be held that such provision requires
security to be given with every bid, such security to be a guaranty of the
bid, as well as of the performance of the contract if awarded to the bidder.'
If a charter require security, but there is no provision as to the amount of
the bond or as to its form, or whether it was to be furnished with the bid
or after its acceptance, the regulation of such matter is left to the officers
who are to receive the bid."
Such a provision is necessary to insure good faith in bidders and to make
sure that the proposals are not withdrawn before the contract is a jvarded. A
proposal is a formal offer which by the law of contracts may be withdrawn
or revoked at any time before it has been accepted ; when accepted in pre-
cisely the terms of the proposal it becomes a binding contract. An accept-
ance which varies the terms of the offer is a counter-offer which may invali-
date the offer.* *
Therefore a deposit by one bidding for a city contract, made on con-
dition that it be forfeited if the bidder fail to qualify after award of the
contract, cannot be forfeited for his failure to sign a contract and bond
securing its performance when the conditions therein are more burdensome
than were the specifications contained in the advertisement,^ or where the
contract is not based on legal proceedings of the municipal authorities.'
Where it is an express condition of the acceptance of a bid that the
bidder shall make a deposit, which is to be forfeited on his refusal to enter
' May V. Detroit, 2 Mich. N. P. 235 ond sfe also Lloyd's Law of Building and
2 Rabling v. Board (Ind.). 40 N. E Rep Buildings. 93.
1079; semhle Smith v. Philadelphia, 2 ^ Cotier ?;. Casteel (Tex. Civ. App.), 37
Brews. (Pa.) 443. 8. W. Rep. 791.
3 Selpho V. City of Brooklyn (Sup.), 39 « N. P. Perrine Co. v. Pasadena (Cal.), 47
N. Y. Supp. 50. Pac. Rep. 777.
4 Tuttle V. Love. 7 Johns. (N. Y.) 470 ;
* See Law of Contracts, Chap. IV., Sees. 92-97, S'ipra.
168 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 169.
into the contract, the bidder, when he has abandoned such a contract without
just cause, is not entitled to be relieved against the forfeiture.^
Public officers have no discretion in the matter; if the lowest bidder has
refused or neglected to execute the contract, the check that he has deposited
as security must be forfeited and retained by the city as liquidated damages
and paid into the sinking-fund, and any other disposition of the bid or the
check is unlawful.''
When the act provides that the bidder whose bid is accepted and who
fails to furnish proper security "within five days after written notice " tliat
the contract has been awarded him shall forfeit the deposit accompanying his
bid, the forfeiture will not occur if the authorities have failed to give him
the written notice, though he has been informed of the acceptance of his bid.'
The decisions may be modified or conditioned upon whether the court
regards the certified check as a penalty or as liquidated damages. When
the notice required each bid to be accompanied by a check for $500, " as
a guaranty of good faith that the bidder, in case his bid is accepted, will
enter into a contract,^' and the plaintiff's bid was accepted, but he failed
to enter into a contract within a reasonable time, whereupon defendant
appropriated his check, it was held that the money deposited by plaintiff
was not liquidated damages, but a penalty, and defendant was entitled to
retain only so much as would cover its actual damages.*
The fact that the resolution provides that, if any person whose bid is
accepted shall fail to enter into a written contract and give the required bond
within ten days, the certified check deposited by him shall be forfeited, etc.,
does not limit the city council to ten days in which to- accept a written con-
tract and bond, and require a forfeiture of the contract in case they are not
furnished within that time.^
169. Proposal to be Accompanied by Consent of Sureties. — A notice to
bidders requiring that "the proposal should specify the names of the sure-
ties offered, with the written consent of the persons so named," has been held
reasonable, and it was held that by reason of neglect to furnish the written
consent prescribed, the lowest bidder was not entitled to have the contract
awarded him ; and the fact that he was present at the opening of the pro-
posals accompanied by responsible persons for the purpose of giving their
written consent to the use of their names as sureties did not remedy the
omission to specify their names in the sealed proposals. It was held too late
to perfect the bid." When the statute requires that each bid *' shall be accom-
' Village, of Morgau Park v. Grahan 34 Atl. Rep. 774.
(111.), 26 N. E. Rep. 1085 [18911. ^ city of Springfield v. Weaver (Mo.
« Kimball v. Hewitt, 2 N. Y. Supp. 697 Sup.), 37 S. W. Rep. 509.
[1888]. 6 State v. Governor, 22 Wis. 110 [1867] ;
3 Erwing «. New York, 16 N. Y. Supp. State v. Hartley (Neb.), 70 N. W. Rep. 367;
612[1891];«««rt/«(?Mitchler«. Easton(Pa.), and see Roberts v. Brett, 6 C. B. N. S.
23 Atl. Rep. 1109. 635; Stafford v. Low.e, 16 Johns (N. Y.)
* Lindsey -» Rockwall County (Tex.). 30 67 : Cremer v. Higginson, 1 Mason C. C.
S. W. Rei.. 380; Willson v. Baltimore (Md.), R. 323, 368.
§ 170.] BIDS AND BIDDERS. 169
panied by sufficient guaranty of some disinterested person," the act is not com-
plied with by merely writing the name of the person offered as surety as such/
When one of the sureties who was named in the bid refused to execute
the bond as surety, it was held sufficient to justify a refusal to execute the
contract even after the bid had been accepted and the details of the contract
agreed upon, and even tliough the lowest bidder did offer other securities.'
The bid must conform to the form of the proposal required.^ It may be re
quired that the sureties shall be residents of the state, and the award of the
contract may be refused to a bidder who neglects to furnish such security.*
The public officers may determine the responsibility of the sureties
offered, and if they are sufficient; and it seems they are not limited in their
inquiry to their reputed or actual responsibility, but may consider their
vocation, business habits, character of their investments and property, and
their reputation for integrity and prudence.^ A requirement that " all
proposals must be accompanied by a certificate of deposit for the sum named
to the credit of the auditor," is satisfied by a certificate of deposit to the
credit of the bidder and indorsed as " Pay N. S. B. Auditor, etc., or order."
It was held that the board could not reject the bid, that being the lowest
bidder, and, having furnished the requisite security, he was clearly entitled to
the contract : that he was entitled to it as a matter of right and of law. Such
technicalities cannot be prescribed." *
THE AWARD AN'D FIN^AL EXECUTION OF THE COITTRACT. ACCEPTANCE OP
THE PROPOSAL.
170. Information to be Furnished and Gonditions to be Imposed when
Contract is Executed.
1. Bidder's Residence and Address.
The place of residence of each bidder, with post-office address, county,
and state, district, or territory, must be given after his signature, which
must be written in full.
2. Signatures and Seals.
All signatures must be witnessed and have affixed to them seals of
wax or wafer.
3. Partnership Bids.
When a firm bids, the individual iiames of the membeirs shall be
written out, and shall be signed in full, giving the Christian names ;
but the signers may, if they choose, describe themselves in addition as
doing business under a given name and style as a firm.
4. Bids by Coi'porations.
In cases where a corporation submits a proposal, the proposal must be
signed with the full name of each officer of the corporation, and their
» State «. Board of Ed., 42 Ohio St. 374. ^parman v Comra'rs of Darke Co., 21
2 Adams V. Ives, 63 N Y. 650 [1875]. Ohio St. 311 [1871].
' Wiffgin.s V Pinlade]phiii, 2 Brewster ^ Adams v. Ives, 63 N. Y. 650 [1875] ;
(Pa.) 444 ; Weed v. Beach, 56 How. Pr. Shaw v. Trenton, 49 N. J. Law 339 [1887].
(N, Y.) 470; accord? Wilson v. Baltimore " People -». Contracting Board, 46 Barb.
(Md.), 34 Atl. Rep. 774. 254 [1865].
* As to Sureties in General see Sees. 18-22, supra.
170 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 171.
addresses given, in addition to the corporation signature, with official
corporate seal thereto.
5. Bids by Agents.
Any one signing a proposal as the agent of another or of others musj,
file with it legal evidence of his authority to do so.
6. Officer's Authority to Bid.
If a person signs for a corporation, he must present legal evidence that
he has rightful authority to such signature, that the signature is binding
upon the corporation, and that the corporation has a legal existence.
7. Award of Contract.
The award of the contract, if awarded, will be made to the bidder
who is the lowest for doing the whole of the work, and whose estimate is
regular in all respects. It must be understood that an acceptance by
the board, council, or state, of proposals made, shall be conditional upon
the execution of the formal contract (of which the plans and specifica-
tions are a part), and the furnishing of the required bond for its faithful
and complete performance.
8. Rigid to Reject Bids Reserved.
The right to reject [any and] all bids (plans, and estimates), is reserved
if the Commissioners of Public Works shall deem it for the interest of
the so to do.
9. Right Reserved to Waive Informalities.
The board or owner reserves the rights to waive any informalities in
any proposal that may be received, and to reject (any or) all proposals
submitted in response to the advertisement, and to disregard the bid of
any failing contractor known as such to the Engineer,
10. Invitation to Opening of Bids.
Bidders are invited to be present at the opening of the bids.
[Signed]
Dated
CommissionerSf Council, or Board.
171. Acceptance of Proposal and Execution of Contract. Right to Reject
Bids. — When the statute does not require that the contract be awarded to
the lowest bidder, public officers may, if they choose, invite competition, and
in their discretion make alterations in the plans and specifications adver-
tised before executing the contract and without the knowledge of competing
bidders.* They must not abuse the discretionary power conferred, and their
acts must be free from fraud.'
To determine what is the lowest aggregate bid, the bids must be consid-
ered in their entirety, and not by taking separate items from different bids.''
Where an advertisement for bids for the erection of public school build-
ings states that the board reserves the right to reject all bids, one making
^Kingsley v. Brooklyn. 5 Abb. N. Cas. Rep. 1081; Sliefb'iur v. Bonrd (N. Y ). 31
(N. Y.) 1 ; Brevoort v. Detroit. 24 Mich. Atl. Rep. 454 ; Gilmore v Utica (N. Y.
322; Cummings tj. Seymour, 79 Ind. 491 ; App ). 29 N. E. Rep. 841; Hiiblmrd «.
Insley v. Shipard, 81 Fed. Rep. 869. Sandnskv. 9 Ohio Cir. Ct. Rep. 638.
3 Elliot V. Minneapolis (Minn.), 60 N. W. 'Hubbard v. Sandusky, supra.
§ 172.] BIDS AND BIDDERS. 17J
the lowest bid has 'no right of action against the board where the bid is
rejected and the contract given to another, though it was the rule of the
board that contracts sliould be let to the lowest bidder/ It has been held
that a contract may be awarded to one at any price within the legal rate
fxed for public printing, though another offers to do the work for sixty per
cent, less.'"' If the charter or a statute require the contract to be awarded to
tlie lowest bidder after advertising for bids, a contract not so made and
awarded will be void.' If the -statute provides that the contract "shall be
let to the lowest responsible bidder," an ordinance or advertisement which
states that " the commissioner reserves the right to reject any proposal at
his discretion," is invalid.'' If the act or charter says the contract shall be
awarded to the lowest bidder it is useless to " reserve the right to reject any
and all bids," though it has been frequently held that " all the bids might
be rejected."^ The body awarding the contract acting in good faith may
refuse to award to any one if they deem it for the best interests of the public
to do so. They may reject all the bids and readvertise for new proposals."
It seems that the awarding of the contract may be indefinitely postponed,'
or the work may be abandoned altogether or the plans and specifications
changed.^
It seems that the contract cannot be awarded to another who makes a
better offer after the bids have been received and opened."
172. Power to Determine Responsible Bidder is Discretionary. — If the
statute provide that the contract be awarded to "the lowest responsible
party" or to *Hhe lowest responsible party furnishing good and sufficient
security," the courts have usually held it to confer discretionary powers upon
the public officers to determine whether or no the bidder was responsible
and if his surety was good and sufficient.^" When such discretionary powers
belong to a board of public officers the right "to reject any and all bids"
^ Anderson v. Board of Public Schools ' People v. Aldridge, 31 N.Y. Supp. 920.
<Mo. Sup), 27 S. W. Rep. 610. ^Keogh «. Wilmington, 4 Del Cb 491.
■^ Board of Com'rs of Henry County «. ^Keir «. Pbiladelpbia, 8 Phila. (Pa.)
Oillies (Ind. Sup.), 88 N. E liep. 40. 292.
3 Littler v. Jayne, 124 111. 123; State v. iox)ouglass •». Commonwealtb, 108 Pa.
Licking Co.. 26 Obio St. 531. St 559; Kelly i). Chicago, 62 111. 279
4 Lake Sbore & M. S. R ^. City of Chi- [1871] ; Findley v. Pitisburgb, 82 Pa. St.
cagodll.), 33N. E. Rep 602. 351; Interstate^ etc., Co. v. Phila. (Pa.),
'* VVulsh V. Mayor, 113 N. Y. 142 [1889] ; .30 Atl. Rep. 383 ; Comm. v. Mitcbell. 83
Peoples. Croton Aqueduct, 49 Barb. 259 ; Pa. St. 343 ; Hoole ^. Kinkead, 16 Nev.
Bell "0. City of Rocbester, 30 N. Y. Supp. 217; People v. Dorsbeimer, 55 How. Pr.
3).-); Peoples. Aldridge, 31 N Y. Supp. (N. Y.) 118; Hubbard ^. Sandusky, 9 Obio
920.; Connollys. Board (K J.), 30 Atl. Cir. Ct. Rep. 638; People v. Mooney
Rei). 548; Booth 'o. City of Bayoime (N. (Sud.), 38 N. Y. Sup 495; State «?. Bd.
J.), 28 Atl. Rep. 381, 15 Amer. & Eng. of Ed. (Ohio), 20 Bull. 156; semble. Van
Eiicv. Law 1096 ; Gunning G. Co. v. New Reipen v. Jersey City (N. J.), 33 Atl. Rep.
Orleans (La ), 13 So. Rep. 182 ; People «. 740; and see State v. Marion Co., 39 Ohio
Willis (Sup.), 39 N. Y. Supp. 987; State v. St. 188 ; People v. Gleason, 4 N. Y. Supp.
Directors. 5 Ohio St. 234 ; Kelly v. Chi- 383; Weed ?>. Beacb, 56 How. Pr. flM. Y.)
ego. 62 111. 279. 470; May v. Detroit, 12 Am. L. Reg. (N.
6 Walsh v. Mayor, 113 N. Y. 142 S.) 149; McBrian v. Grand Rapids, 56
[1889] ; Connolly v. Board (N. J.), 39 Atl. Mich. 95.
Rep. 548.
172 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 173.
seems to be properly reserved, the exercise of which right is subject to th©
close scrutiny of the court. *
Sometimes the ordinance or act itself authorizes the engineer to reject
any and all bids if deemed too high or the parties bidding are deemed irre-
sponsible.'^ Under such a clause the act of the engineer in rejecting th&
lowest bid can be impeached only on the ground of bad faith.
If, as is sometimes the case, the statutes provide that '^ every such contract
shall be deemed confirmed in and to such lowest bidder at the time of the-
opening of the bids," ^ then there is no discretion; the contract goes to the
lowest bidder.
173. Discretion Must be Exercised in Good Faith. — The body or board or
council accepting the bids must determine whether the lowest bidder is re-
sponsible and shows the ability and offers the security prescribed; and if the
bid is not rejected because of a bona fide determination of the lack of such
qualifications, it cannot be rejected for other extraneous causes." The word
" responsible " has been held not to have reference to pecuniary ability alone,,
but to have reference to the skill, ability, and integrity of the bidder, and
that it is proper to consider which bidder would be most likely to do faithful,
conscientious work/ The word '^responsible" has been held to mean the-
ability to perform all the conditions of the contract; and the commissioner
of public works may reject a bid, notwithstanding it is the lowest made^
and the bidder is able to give the required bond, if, in the judgment of such
official, after due investigation, the materials customarily used and the
workmanship exhibited by the bidder in the performance of the kind of
work required are poor and unsatisfactory. "
The discretion must be exercised in good faith and without fraud or
collusion;^ and such a power to dispense with certain requirements con-
ferred upon a board or council by act of legislature being discretionary, it
cannot be delegated.® The board cannot exercise an arbitrary discretion in
awarding the contract, but must base its discretion on facts reasonably tend-
ing to support its determination.'
It seems that evidence is admissible to impeach the contract and show
1 People V. Willis (Sup.), 39 N. Y. Supp. ' Reuting v. Titusville (Pa.), 34 Atl. Rep.
987; Peeples^. Byrd (Ga.), 25 S. E. Rep. 916; Ross v. Bd. of Ed., 42 Ohio St. 374;;
677; State v. New Orleans (La.) 19 So. Hubbard v. Sandusky, 9 Ohio Cir. Ct.
Rep. 690; Gunning G. Co. v. New Orleans Rep. 638; Van Reipenw. Jersey City (N. J.)^
(La.). 13 So. Rep. 182. 33 Atl. Rep. 740; Gunning G. Co. v. New
2 Johnson v. Duer (Mo.), 21 S. W. Rep. Orleans (L-i.). 13 So. Rep. 182; Peoples.
800 ; State v. New Orleans, supra. Town of Campbell, note 8; State v. Betis, 4
«The People tj. The Croton Aqueduct, C C. (Ohio) 86.
49 Barb. 259 [1867]. » R-^ Emigrant Ind. Sav. Bank, 75 N.
4 Shaw ??. Trenton, 49 N.J. Law 339 [1887]. Y. 38«; hut see Peoples. Town of Camp-
^Comm. V. Mitchell, 82 Pa St. 343; bell (Sup.), 36 N. Y. Supp. 1062. where en-
Hoole V. Kinkead, 16 Nev. 217; Renting gineer was authorized to receive proposals
V. Titusville (Pa. Sup.), 31 Atl. Rep. 916 an daioard contract; andsee'Ro-.w&v. Kemp-
« People V. Kent (111. Sup.). 43 N. E. (Lid. App.). 43 N. E. Rep 314.
Rep. 760; Peeples v. Byrd (Ga ). 25 S. E. ^ McGovern d. Board (N. J Sup.). 31
Rep. 677; State r. St. Bernard, 10 Ohio Atl. Rep. 613: s«w6^<j, //i re McCain (S. D.)^
Cir. Ct. Rep. 74. 68 N. W. Rep. 163.
§ 175.] BIDS AND BIDDERS. 17^
that the bid accepted was not in fact the lowest according to the data pro-
posed as tests, without alleging a fraudulent collusion between the bidder
and the officers awarding the contract.'
174. Bids Eejected but Reconsidered Without a New Advertisement. — A
common council which has rejected all bids received in reply to an adver-
tisement for proposals may at a subsequent meeting, without readvertising
for new proposals, reconsider tlie vote of rejection and award the contract to
one of the original bidders. It has been so held.' It may be doubted if
the bidder could be held to his offer, it having been once rejected and not
renewed again. Therefore when the instructions to bidders required a
guaranty that the bidder would not withdraw his proposal within sixty days^
and that if the same were accepted he would enter into a contract within
ten days after the day on which he should be notified of such acceptance, it
was held that after that time, as against tlie bidder, the bid could not ba
accepted; and it was further held, that though personal notice of the accept-^
ance was intended, and that though notice was deposited in the mail a few
days before the expiration of the sixty days, but which did not reach the^
bidder until after the expiration of that period, was insufficient to render
him or his guarantors liable for a failure to enter into a contract.' *
A second advertisement for bidders has been held unnecessary in case of
nonperformance by the original contractor, the liability of the contractor
and his sureties having been deemed adequate indemnity against additional
expense in completing the work. If the expense has not been increased by
fraud and irregularity, an assessment levied under the act cannot be vacated
or reduced.* The fact that the work was completed at an expense consid-
erably exceeding the contract price does not, it seems, require that it should
have been readvertised and relet/
175. Not Always Necessary to Rcadvertise. — When the lowest bidder
had failed or refused to enter into the contract and to give the guaranty re-
quired, it was held that the contract might be awarded to the next lowest
bidder without readvertising for bids;' but it seems that the next lowest
bidder cannot compel the award of the contract to him.'
There are cases to the contrary which hold that if the lowest bidder with-
draw his bid it is necessary to advertise again, and not to award the contract
to the next lowest bidder.* The charter may require that notice be given at
a reletting of a contract the same as at the first letting, and the contract re-
awarded to the lowest bidder, in which case it must be strictly followed."
1 Brady v. Mayor, 20 K Y. 312 [1859]. « Gibson v Owens (Mo. Sup.). 21 S. W.
'-^Ross V. Stackhouse, 114 Ind. 200 [1887]. Rep. 1107.
^Haldane v. United States (C. C. A.), 69 ^ State v. Shelby Co , 36 Ohio St. 826;.
Fed. Rep. 819. see also Mackenzie «. Baraga Tp , 39 Mich.
4 In re Leeds, 53 N. Y. 400 [1873], Jus- 554.
iice Allen dissenting. "Twiss v. Port Huron, 63 Mich, 528
^ In re Leeds, supra; Brass Foundry [1886]; s. c, 30 N. W. Rep. 177.
Works V. Parker Co., 115 Ind. 234, con- » Dillon's Munic. Corp'ns [4th ed.], §
struciion of a public builditig. 466, note, and cases cited.
* See Sec. 95, supra.
174 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 175.
Some cases hold that after bids have been received material alterations can-
not be made in the contract awarded without a new advertisement/ *
If the contractors abandon the work, the act of their surety in finishiug
the building for the city as their agent has been held simply the completion
of the original contract, and hence that the letting of a new contract to a
new " lowest bidder " is unnecessary."
If the contractor has abandoned the work, a contract by the county with
the subcontractor to pay him for work done by him or to be done by him
was held not void if the work had progressed so that in the judgment of the
commissioners it might be completed substantially under the original con-
tract, and by keeping in operation the agencies already in motion.^ Work so
■abandoned may, it seems, be completed without readvertising or competition
at fair prices, even though the expense considerably exceeds the contract
price.* If the lowest bidder be allowed to withdraw his bid on the ground
of a mistake, it seems it is improper to award the contract to the next lowest
bidder. The work should be advertised again, and other bidders be allowed
to revise their bids.^
These are special cases, and are so fortified with tjonditions that a gen-
eral statement of the law can scarcely be made. Indeed, it can hardly be
desired that such general law should exist, for it might be employed as a
means of avoiding the statute by getting a mock contractor to undertake
the work and then abandon it to the merciless grasp of conspirators and
boodlers.
When proposals have been solicited for public work and they have been
received, giving separate bids for the material and different kinds of work
required in the construction, one of which has been accepted with the un-
derstanding that when the structure is located the amount to be paid will
be determined by its length and size upon the basis fixed in the bid, it is
not necessary to advertise for new proposals when the structure is located,
even though it is considerably shorter than was the one bid upon.' And
when the advertisement and proposal was for paving a specified distance
and the contract entered into was to pave only a part of that distance, '^or
further if ordered," it was held that it was not necessary to readvertise for
proposals when the balance of the work was ordered to be done; that it was
covered by the original contract/ If the council resolve to readvertise for
bids for a street improvement because the lowest bid is in excess of the
■estimate by the engineer, their act must be approved by the mayor, or
passed over his veto, as provided in the city charter.® If no notice to the
' Diokinson v. Pougbkeepsie, 14 N. Y. ^ Twiss v. Port Huron, 63 Mich. 528.
Super. Ct. 1. «Insley v. Shepard, 31 Fed. Rep. 869
2 McChesney v. City of Syracuse (Sup.), [1887]; Brevoort v. Detroit, 24 Mich. 322.
^2 N. Y. Supp. 507. ' Brevoort v. Detroit, supra.
3 Bass F. & F. Works v. Parker County s jgooth v. City of Bayonne (N. J.), 38
<Ind.). 115 Ind. 2H [18881. Atl. Rep. 381.
4 Matter of Leeds, 53 N. Y. 400.
* See also Sqc. Ih^'iQQ, supra.
§ 176.] BIDS AND BIDDERS. 175
mayor be required by law, a contract for a public improvement may be
awarded legally, without any notification by the commissioners to the mayor
of the meeting when the award was made/
176. Whether Lowest Bidder can Compel an Award to Himself. —
Whether or not a board may be compelled to award the contract to the
lowest bidder is not fully settled. There are numerous decisions partly to
the eilect that a court will not compel the city or its board to award the
contract to the lowest bidder;' that when a board is invested with a discretion,
the court will not seek to control it in the absence of fraud or bad faith.'
The fact that the lowest bid is considerable [$1500] greater than the esti-
mate cost does not warrant the inference that its acceptance was fraudulent.* *
It has been held that when an act directs municipal officers to award a
contract "to the lowest responsible bidder " it vests discretionary powers in
such officers, the word " responsible " applying not only to pecuniary ability,
but also to judgment and skill of the contractor.^ f Such officers are free
from control so long as they act in good faith, though they do act erro-
neously and indiscreetly." The court will not interfere with the commis-
sioners if they have exorcised reasonable care to advise themselves whether
the lowest bidder could be depended on to do the work bid for with ability,
promptitude, and fidelity, and in good faith concluded that he could not,
though the court be satisfied that such conclusion was erroneous,^ or that
they have been indiscreet.® A board of public works is better qualified to
determine what bid for a public work should be accepted than a court of
chancery can be, and the court will interfere only where the chancellor can
see that the board has either acted in violation of law or in such a manner
that its contract virtually amounts to a fraud,"
The lowest bidder is usually held to acquire no legal right to compel by
mandamus that the contract shall be awarded to him when discretionary-
power has been conferred upon the commissioners." The fact that a bidder
1 Terrell tJ. Strong (Sup.), 35 N.Y.Supp. Dist. (111. Sup.). 45 N. E. Kep. 213;
1000; 866 al80 Barber Asph. P. Co. «. UU- Wright v. Com'rs, 6 Mont. 29.
man (Mo. Sup.), 38 S. W. Rep. 458. -» Bootli v. City of Bayonne (N. J. Sup.).
2 Dillon's Munic. Corp'ns, § 32, note, 28 Atl. Rep. 381.
<ind many cases cited. » Interstate, etc., Co. v. City of Phila.
3 Kelly V. Chicago, 62 111. 279 [1871]; (Pa.), 30 Atl. Rep. 883; Douglass^. Com-
Douglass V. Commonwealth, 108 Pa. St. monweaUh, 108 Pa. St. 559.
659; Hewlett^. Directors, 5 Ohio St. 235; ^ j)ouglass«. Commonwealth, 108 Pa. St.
[1856]; People v. Croton Aq. Board, 49 559.
Barb. 259: Findley v. Pittsburgh, 82 Pa. "f State v. Village of St. Bernard, 10 Ohio
St. b5I; see also Grants. Common Council Cir. Ct. R. 74.
(Mich.), 53 N. W. Rep. 997; Comm. v. sFjndley v. City of Pittsburgh, 82 Pa.
Mitchell, 82 Pa. St. 343; Hoole v. Kinkead, St. 351.
16 Nev. 217; Weed v. Beach, 56 How. Pr. » Johnson v. Sanitary Dist. of Chicago,
(N. Y.) 470; People v. Contracting Bd., 27 58 111. App. 306.
N. Y. 378, 33 N Y. 382; State v. Bd. of lo 15 Amer. & Eng. Ency. Law 1097;
Ed., 42 Ohio St. 374; People?). Kent (111.), State v. Kendall, 15 Neb. 262; State ?>.
43N. E. Rep. 760; In 7-e McCain (S. D.), Dixon Co. (Neb.). 37 N. W. Rep. 936;
68 N. W. Rep. 163; Johnson v. Sanitary State v. McGrath, 91 Mo. 386; and see De»
* See Chap. I., Sees. 50-56, supra, and 428-429, infra, as to proof of fraud.
f See Sec. 173, supra.
176 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 177.
was the lowest, and has been reported to the common council as such, does
not establish a binding contract witli a city until approved and ratified by
the common council, as required by law. * *
When a charter provides that the contract shall be ^'let to the lowest
reliable and responsible bidder," it requires public officers to exercise^
discretion and determination, and it has been frequently held that courts
would not issue an injunction to prevent an award of a contract to one who-
was not the lowest bidder.' The facts must be made to appear sufficiently
to show that they bring the case within the officers' discretion, and that it
was exercised in obedience to law.'
177. Public Officers may be Enjoined from Illegally Awarding Contract. —
It is well settled that any taxpayer can, or if a taxpayer be the lowest bidder
he can himself, bring suit in equity to enjoin the execution of a contract
illegally awarded.* The lowest bidder can do this though he is prompted
by other considerations than his liability to excessive taxation.* So where a
council merely finds that the one to whom the contract was awarded was
"the lowest and best bidder" without finding any facts which rendered
another, who was apparently the lowest bidder, not the lowest bidder in
fact, the performance of the contract will be enjoined.'
The discretion vested in commissioners will be controlled by the courts
anly when necessary to prevent fraud, injustice, or the violation of a trust; '
and the mere fact that the commissioners awarded the contract to one not
the lowest bidder is insufficient to establish the charge that they acted
fraudulently or illegally.*
If public officers are about to award a contract without advertising for
bids as required by law, or if a contract has been let in violation of
the law, a court of equity will prevent the execution or performance of
the contract at the instance of any taxpayer. The allegation and proof
of fraud will cause an injunction to issue to restrain the awarding of the-
troit F. P. Co. V. Auditors, 47 Mich. 135; 51 K. W. Rep. 997.
State V. Supervisors York Co.. 17 Neb. 643; ^ Commonwealth v. City of Philadelphia.
People V. Bd. of Ed., 5 N. Y. Siipp. 392; (Pa. Sup.). 35 Atl. Rep. 195.
Mayo V. Hampden Co. Comm'rs, 141 Mass. * Board v. Gillies (Ind.), 38 N". E. Rep.
74; People v. Campbell, 72 N". Y. 496; 40; ««,<? see Christian •». Dunn (Com PI.),
Deckman v. Oak Harbor, 10 Ohio Cir. Ct. 8 Kulp 320 : Wood v. Pleasant Ridire, 1^
Rep. 409; State v. Scott. 17 Neb. 686; Ohio Cir. Ct. Rep. 177; Comm'rs v.
People V. Croton Aq. Board, 26 Barb. Templeton. 51 Ind. 266.
(N. Y.) 240; Rablinjr v. Board of Comm'rs « Times Pub. Co. v Everett (Wash ). 37
(Ind. Slip ), 40 N. E. Rep 1079;' cases col- Pac. Rep. 695 : semble. People v. Contract-
lected 14 Amer & Enir. Enev. Law 210, ing Board, 33 N. Y. 382; and see Peeples^
note 6; East River Gas Co. v. Donnelly, 93 v. Bvrd (Ga.), 25 S. E. Rep 677.
N. Y. 557; Times Pub. Co d. City of Ev- « times Pub. Co. v. Everett (Wash.), 37
erett fWasii.). 37 Pac. Rep 695. Pac. Rep. 695.
1 Smith v. Mayor, 10 N Y 504; and see ' Terrell v Strong (Sup.), 35 N. Y. Stipp.
Walsh V New York, 113 N. Y. 142; and see 1000 ; Johnson v. Sanitary Dist. (111. Sup ).
also United States v. Lamont, 15 Sup. Ct. 45 N. E. Rep. 213.
97. 8 Terrell v. Strong (Sup.), 35 N. Y. Supp„
2 15 Amer. & Eng. Ency. Law 1096 ; 1000.
und see Grant v. Common Council (Mic'i.),
* See Sec. 183, infra.
§ 178.] BIDS AND BIDDERS. 177
contract ; * and injunction seems to be the proper remedy,' thougli not a
necessary remedy, it seems. If a taxpayer has before the commencement of
the work notified the contractors that he would contest the legality of the
proceedings under which they were acting, he is in a position, after they
l.ave completed the work, to ask that the placing of a lien on his property
for the cost of construction be enjoined."
It has been held that when a contract was awarded to a bidder who was
only $200 higher than the lowest bid, only $30 of which was to be paid
by the city, and the mistake was one of judgment merely and not inten-
tional, it did not warrant the intervention of the attorney-general.* It
has been held to be illegal to divide the work between the higliest and
lowest bidder.'
178. What Remedies a Bidder May Have. — Contractors before demanding
the rights of the lowest bidder under the charter of a city or a special act of
legislature should make sure that the law requires the contract to be given
to the lowest responsible bidder. They should have taken pains to conform
strictly to the notices, instructions, and ordinances made in regard to the
work." A statute conferring the entire control of the work for procuring
a water-supply upon water-commissioners, and directing them to give public
notice for proposals, but which does not require them to let the work to the
lowest bidder, was held to give the commissioners full discretion as to the
acceptance or rejection of all sealed proposals/ When public officers have
exceeded their powers and deprived the lowest bidder of his lawful rights to
the award of a contract, the question very naturally comes up as to what
remedies he has to recompense him for the loss and the injustice he has
suffered. There are a few cases to the effect that if the bidder can show
that he is legally entitled to tho contract under the terms of the act, he may
enforce the award by mandamus although the contract has been awarded to
another party. The lowest bidder must have used reasonable diligence in
asserting his rights and have done nothing to waive his rights.®
There are decisions to the effect that the bidder has no ground for
mandamus, as he has no cause of action and no clear legal rights until the,
contract is made and concluded." In Ohio it has been held that if the
'- Smith V. Phila., 2 Brews. (Pn.) 443; Water Com'rs of Jersey City (N. J. Sup.)
Follmer 'o. Nuckolls Co.. 6 Neb. 204; .28 All. Rep. 424.
Schuinm v. Seymour, 24 N. .1. Eq. 143. * Wiggins t). Philadelphia, 2 Brews. (Pa.)
2 Hoffmau v. Board (Mont.), 44 Pac. 444: State v. York Co. Com'rs, 13 Neb.
Rep. 973. 57; Weed v. Beach. 56 How. Pr. (N. Y.)
3 Brace, C.J, and Sherwood and Rob- 470; State v. Bariley (Neb.), 70 N. W.
inson, JJ. . dissenting. — Verdin v. City of Rep. 367.
St. Louis (Mo. Sup.),- 33 S. W. Rep. 480. ■" FlemmingiJ. City of Suspension Bridge,
See also Dibble v. New Haven (Conn,), 56 92 N. Y. 368 [1883].
Conn. 199, where the building committee ^ Boren v. Com'rs of Darke Co., 21 OhiO'
had been instructed by vote to let work to St. 311 [1871] ; Wood's Master and Servant
lowest bidder; — no injunction was granted. (2d ed.) 162.
* Attorney-General v. Detroit, 26 Mich. , ^People v. Croton Aq. Board, 26 Barb.
263 ; and see Attorney General r>. Boston, (N. Y.) 240 ; WeeU v. Beach, 56 How. Pr.
123 Mass. 460. (N. Y.) 470 ; Kelly v. Chicago. 62 ill. 279..
^ McDermott v. Board of Street and
178 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 178.
lowest responsible bid be rejected and any other be accepted, the action of
the board may be controlled by mandamus without doing violence to the
rule that in matters involving Judgment and discretion the board cannot
be controlled by mandamus proceedings. The lowest bidder must show a
clear legal right in himself/ Another case holds that even when a bid for
public work has been accepted, and the contractor has a clear right to the
contract, yet mandamus will not lie to compel the commissioners to execute
the .contract; that the proper remedy is an action against the city for
damages.' It has been held that the lowest bidder had no right of action
at law against the city to recover profits which he might have made had his
bid been accepted.'
A recent case decides that the provision in a city charter that contracts
for public work shall be awarded to the lowest reliable and responsible
bidder is not for the benefit of a bidder for such work, but to protect
the property-holders and taxpayers, and therefore the lowest reliable and
responsible bidder has no such vested or absolute right to a compliance
with such provisions of the statutes as will entitle him to maintain a suit
to enjoin their violation by public officials; that the presentation by a reliable
sind responsible bidder of the lowest bid to officials whose duty it is to let
the contract to the lowest reliable and responsible bidder, but who havo
the right, under the statute, to reject all bids, and who have given notice
in their advertisement for bids that they reserve the right to reject any and
^11 bids, does not constitute an agreement that they will make a contract
for the work with such a bidder; nor does it vest in him such an absolute
right to the contract as will authorize a court of equity, at his suit, to
compel the officials, or the municipality they represent, to enter into a
contract for the work with him, when they are about to award, or have
awarded, it to a higher bidder.*
Whether mandamus will lie is in the discretion of the court; and an
allegation by the board of public works that no appropriation exists to cover
the expense of the works, and that they have changed the design and
character of the work to be done, and have decided that the public interests
required that the work should be readvertised and let under proposals
framed in accordance with such alterations, was good, and a discretion they
might properly exercise.'
A refusal to approve the contract on the ground that the work was to be
done with a certain brand of material named, when it appears that the
contractor, has furnished samples of material of the kind and quality
required and named, and that the contract has been made with reference to
such samples, is technical and without foundation; but when the contract
» State r. Bd. of Ed., 42 Ohio St. 374. * Colorado Paving Co. id. Murphy (C. C.
^ People « Campbell, 72 N. Y. 496. . A.). 78 Fed. Rrp. 28.
3 Talbot Pav. Co. «. Detroit (Mich.), 67 ^ People v. Croton Aq. Board, 49 Barb.
ISr W. Rep. 979 ; Ea^^t Riv. G. Lt. Co. t. 259.
Donnelly, 93 N. Y. 557.
§ 179.] BIDS AND BIDDERS, 179
has been given to another party and the work done, a court in its discretion
would not grant a writ of mandamus to compel the city council to approve
the contract.'
If the act undertaken by the city council or public officers is unlawful,
it seems fairly well settled that the prosecuting officer of the state may file
a bill in equity to restrain illegal acts or have them corrected; but when the
officers had acted in good faith, and by an error of judgment committed
unintentionally, a contract was let to a bidder who was not the lowest, but
which increased the expense by $20 only, and the contractor had incurred
large expense to carry out the contract, and there was no complaint by
the taxpayers, it was held that the amount was too small to warrant any
interference by the attorney-general.'"'
179. Liability of Public Officers for Acts Discretionary or Quasi-
Judicial; Misdeeds in Awarding the Contract.* — It is a well settled rule
that no public officer is responsible in a civil suit where his acts have been
judicial or discretionary, however erroneous or indiscreet they may have
been. Some cases have gone so far as to hold that public officers in their
judicial capacity were exempt from civil actions, however erroneous or mali-
cious their acts may have been.^ To a contractor this will seem questionable
law — law quite devoid of justice. The hardships it promises are tempered
somewhat by many decisions that modify this declaration. It has been said
that a judicial officer acting without corrupt or malicious motives is not
liable in damages for an erroneous interpretation or application of the law
and that this same exemption embraces his acts in a quasi-]w(l\Q,v,\\ capacity/
So it has been said by good authority that certain acts and duties of public
officers partake of the character of legislative and judicial functions, though
not strictly so; but they may be so far of that nature as to exempt the
officers from any liability for injuries resulting from their acts.
Among the duties and acts that belong to this class are those frequently
required of engineers and commissioners, such as the location of sewers and
other improvements, the adoption of plans and the determination of dimen-
sions and sufficiency of things which should be distinguished from the sub-
sequent carrying out of the plans. In the one case the officers and city are
considered as acting judicially, which excuses it and them from liability for
injuries resulting from errors of judgment, and perhaps even those from
negligence.^t ^^^ letting of contracts to the lowest responsible bidder has
' Talbot Paving Co. v. Council of Detroit ^ East River Gas Co. v. Donnellv, 93 N.
(Mich ), 51 N. W. Rep. 933 [1892] ; citing Y. 557, and 25 Hun 615 [1881] ; People v.
State v B(l. of Ed , 24 Wis. 683 ; People Gleason (N. Y.). 25 N. E. Rep. 4. [1890];
V. Contracting Bd., 27 N. Y. 378 ; People 19 Araer. & Eng. Ency. Law 489.
« Campbell, 72 N. Y. 496; People v. ^The Muscatine R. Co. v Norton, 38
Kent (111.). 43 K E. Rep. 760 ; Kelly v. Iowa 33 [1873].
Baltimore. 53 Md 134. ^Bisjiop's Non-Contract Law. § 746 ;
2 Dillon's Munic. Corp'ns § 912 and Kirchman ??. West & S. T. Ry. Co., 58 III
note; see also 15 Amer. & Eng. Ency. App. 515.
Law 1093, note.
* See also Sees. 844-859, infra. f See Sees. 245-8 and 844-859, infra.
180 ENGINEEHING AND ARCHITECTURAL JURISPRUDENCE. [§ 180.
been held a judicial act, for the erroneous exercise of which no action would
lie against the city/ The act should clearly be one which requires the
exercise of judgment and discretion of a judicial or legislative nature, or
its corrupt or negligent performance will create a liabilty to the injured
party.'
In New Jersey it has been held that when a city charter or act of legis-
lature expressly prohibits the making of a contract for work without having
previously advertised for proposals in a prescribed mode, an award of a
contract by a city official without such previous advertisement, made
willfully and with evil intent, has been held to constitute a criminal offense,
and to render the officer liable to indictment. It was the officer's duty to
award the contract to the lowest responsible bidder, and a charge that
the officer willfully and corruptly gave the contract to a bidder who had
not offered the more advantageous terms was held to constitute a crimizict^
offense.*
Neither the city nor its board is liable to an action of damages for refus-
ing to accept the lowest offer or tender made, if the refusal is in good faith
and judgment.* The duty to award the contract has been held a duty to
the public, and not to an individual, for the violation of which duty the
statute gave no action; the lowest bidder could not therefore recover profits
he would have made if the contract had been awarded to him.' It is well
settled that the city is not liable for damages arising from the rejection of
the lowest bid by a department of public works intrusted with its works.
This was held even when the statute declared that the contract "shall be let
to the lowest bidder at the time of the opening of the bids, and shall be forth-
with duly executed with such lowest bidder." *
Selectmen who have been directed at a town meeting to contract for a
public work, '^the proposal to be advertised and the contract given to the
lowest bidder/' and who advertised for work and reserved to themselves " the
right to reject all bids if none were satisfactory," were held to be authorized to
refuse to award the contract to the lowest bidder and to reject all bids, and
that the bidder had no right of action against the town on tlje contract, nor
for time and money spent in making estimates of the work, and that his
rights were not affected by a subsequent town meeting referring the whole
matter to the selectmen to build at the earliest possible moment.^
180. Liability of Public Officers for Ministerial Acts. — If the duties of
the public officer are not discretionary or of a judicial nature, he is liable for
' Bishop's Non- Con tract Law, § 747. Mnnic. Corporations.
2 Bishop's Non-Contract Law, ^ 748. ' Palmer v. Haverhill, 2 Amer. Corp.
3 State i). Kern, 51 N.J. Law 259 [1889]. Cas. 450; s. c, 98 Mass 487 [1868] ;
'^ Dillon's Mimic. Corp. (4th ed.), cases Peeples t?. Byrd (Ga.), 25 S. E. Rep. 677;
coVecied, § 470. Murdough v. Town of Revere (Mass.), 42
5 East River Gas Lt. Co. «. Donnelly, 93 N. E. Rep. 502 ; and see Audsley ti. New
N. Y. 557. York (C. C. A.), 74 Fed. Rep. 274, where
" Walsh D. New York Ciij. 20 N. E. architects were invited to submit competitive
Rep. 825 [1889] ; s. c, 113 N. Y. 142: and prize plans, and the project was abandoned.
see Meechem on Agency, and Dillon's
§ 182.] BIDS AND BIDDERS. 181
negligence or wrongdoing to. any one sustaining special damage in conse-
quence thereof. So held when the same powers and duties which once
belonged to a public officer were bestowed upon a contractor. Contractor
was held responsible/
When commissioners have accepted a proposal and directed a contract
to be made with the bidder, but later they rescinded the resolution and
resolved to do the work themselves on plans reported by and under the
supervision of a committee, and to appoint a superintendent of the work;
they are undertaking to carry out the work which as judicial officers they had
resolved on and they cease to act as officers exercising judicial and legisla-
tive duties,' and become liable individually for the consequences of their
negligent acts, the city being relieved from responsibility."
So, too, public officers intrusted with the conduct of public work are sub-
ject to a- personal action for damages if they have willfully exceeded their
powers or have maliciously or corruptly transgressed their prescribed duties.
The element of malice and corruption must exist when public officers are
clothed with discretionary powers, for a court will not inquire into them so
long as they are honestly exercised.''
Though the members of a common council, acting judicially in deter-
mining who is the lowest bidder, are not liable in a civil action or a criminal
prosecution for their action, yet such immunity cannot be evoked by a
higher bidder, who has been given the contract, to establish the validity of
the contract; nor will the fact that the council has audited and allowed the
claim give it any validity.* *
181. Bids Cannot be Recalled. — When bids have been made and accom-
panied by certified checks, they cannot be recalled or withdrawn neither
before nor after the bids are opened — not even by permission of the public
officers who have the work in charge and who award the contract.*
Public officers are invested with no discretion to permit amendments or
alterations of proposals on account of any alleged mistake therein, unless
the fact of such mistake and the requisite data for its correction are appa-
rent on the face of the proposal." *
182. The Acceptance or Award. — A notice to the public of proposed
works, asking for proposals, is an invitation for tenders or a request for offers,
and cannot be regarded as an offer to be accepted by the person who makes
himself the lowest bidder. The tenderer proposal submitted by the bidder
must be accepted before a contract is created.'' Not until the proposal of the
1 RobiusoQ V. Chamberlain, 34 N. Y. 389 N. Y. 557.
[1866]. 5 Kimball v. Hewitt. 2 N. Y. Siipp, 697
2 Robinson v. Rohr (Wis.), 40 N. W. [1888]. A like decision was rendered by-
Rep. 668 [1888]. the attorney-general of the United States in
3 Edwards v. Ferguson, 73 Mo. 686 June, 1895.
ll^^V], and case^ cited. « Beaver -». Trustees, 19 Ohio St. 97;
4 People «>. Gleason (K Y.), 25 K E. R. Twiss v. Port Huron, 63 Mich, 528.
4 [1890] ; Gas Light Co. v. Donnelly, 93 ^Dillon Munic. Corp. (4th ed.). §470;
* See Liability of E igineer, Sees. 826-859, infra.
182 -ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 183,
_o
bidder is accepted are the contract rights created, and botli parties liable to
damages for refusing to carry it out. When written proposals for work to
be done are followed by a written bid and a written acceptance of such a bid
by the proper authorities, a binding contract is created to do the proposed
work/ *
183. What Constitutes an Acceptance of the Proposal or an Award of th^
Contract. — A bid made according to advertisement and accepted by the
proper authority creates a contract of the same force as if a formal contract
had been written out and signed by the parties." The award of a contract to
the lowest bidder creates a binding contract on behalf of the city to subse-
quently execute a contract, for a breach of which the city is liable in damages
to the bidder.' The record of the proceedings of a school board, signed by-
the secretary thereof, reciting a resolution to accept the bid of one of its own
members to furnish supplies, is sufficient evidence of the contract.* Tho
acceptance must be in the terms of the proposal, without changes or modifi-
cations of the contract, plans, or specifications. An acceptance in other
terms is but a counter offer, and it may invalidate the offer unless the change-
be agreed to by the bidder.^ * A bidder will be entitled to refuse to sign, and
be justified in so doing, when the formal written contract presented for his-
signature contains stipulations not in the advertisement proposal and
records.' If he does sign the agreement he will be bound by it, the bid
being held to be merged into the formal contract.'
If the acceptance is unqualified and no new terms are contemplated, it is^
irrevocable and binding. A subsequent notification that the acceptance
was reconsidered is no defense to an action on the contract.® If the bid be
regularly made and it is the lowest, the acceptance of it creates a vested
right to the contract, which cannot be taken away by subsequent legislation
"without just compensation.'
A lowest bidder to whom the contract was awarded does not, by accepting-
Doyle V. Dusenberg, 74 Mich 79 : Howard N. Y. Supp. 798 ; Gt. Northern R. Co. v,
v. School, 78 Me. 231 [1886] ; Spencer v. Withum, L R. 9 C. 'P. 16.
Harding, L. R. 5 C. P. 561 [1870] ; s«^ 2 * Alexander v. Johnson (Ind. Sup.). 41
Engineering Magazine 481-487; Forster N. E. Rep. 811.
V. Ulman. 64 Md. 523. » Tuttle v. Love, 7 Johns. rK Y.) 470 ;
1 Wiles V. Hoss (lud.), 16 K E. Rep. 800 Highland Co. v. Rhoades, 26 Ohio St. 411 ;
[1888], 114 Ind. 371 [1887]; Jackson r.N. Howard v. Indus. Sch. 78 Me. 230;
Wales Ry. Co., 1 Hall & T. 75; s. c, 6 Ry. Hughes v. Clvde. 41 Ohio St. 339; a7id see
Cas. 112. A schedule of prices for work Martine v. Nelson. 51 l;i. 422; Loyd's
and materials signed by the parties has been Building and Buildings 93.
held not to be a written contract for the * Highland Co. v. Rhoades, 26 Ohio St.
erection of a building. Eyser v. Weisger- 411.
ber. 2 Iowa 463. 'Taylor v. Fox, 16 Mo. App. 527 ; sem-
* Garf el de«). United States, 93 U. S. 242; ble, Kimberly v. Dick, 41 L J. Ch. 8S
Lewis i). Brass, L. R. 3 Q. B. D. 667 [1877] ; [1871].
The Guardians v. McLoughlin, 4 Ir. Rep. ^Safety Insulated Wire and Cab'e Co. 9^
C. L. 457 [1856]. Baltimore (C. C A.). 66 Fed. Rep. 140.
3 Lynch v. City of New York (Sup.), 37 « In re Protestant Epis. School, 58 Barb
(N. Y ) 161.
* See Law of Contracts, Sees. 88-97, supra.
§ 183.] BIDS AND BIDDERS. 188
a return of the deposit made by him with his bid, after he had notice that
his bid had been rejected, and after he had protested against reletting the
work, and the commissioner had readvertised the proposals for bids,
thereby waive his right to insist upon performance of the obligation created
by the acceptance of his bid/
An acceptance of a bid in writing which states that a contract shall sub-
sequently be entered into is a conditional acceptance, and binds both the
bidder and the acceptor.'' Though the acceptance, may not, with the bid,
constitute the contract, it has been held to give the bidder a legal right to
the contract if he complies with the requirements imposed in the advertise-
ment.' An act passed by the legislature subsequent to the award of con-
tract, but prior to its formal execution, changing and fixing the plans of the
work, cannot affect the validity of the contract.*
It has been held that the fact that it was contemplated that a written
agreement should be executed did not prevent the proposal and its accept-
ance from becoming a complete contract." When it is announced in the
advertisement that a formal contract will be prepared and signed, or the
proposal is made dependent upon such a contract being entered into, then
the acceptance, it seems, does not create the contract ; at least it has been
held that the work might be abandoned altogether." *
Public officers and owners will save trouble if they always make the
acceptance of a proposal conditional on the bidder signing a contract of the
prescribed form and furnishing approved sureties for the execution and
completion of the work.
Whether an acceptance of a proposal creates a contract, or whether it is
a subsequent contract to be entered into, is a question of intention of the
parties when the proposal was made and the acceptance communicated/
If the acceptance be made "subject to the signing of a formal contract,^*
or "subject to the preparation and approval of a written contract," it must
be taken for what it says, and no different intention can be shown.®
If the bid be conditional, the condition must be performed before the
contract can be completed.'
The fact that the owner or his architect said to one of the bidders, "You
are the lucky man," has been held merely a recognition that he is the lowest
1 Lynch v. City of New York (Sup.), 37 46 K. E. Rep. 387.
K. Y. Supp. 798. ^ Lewis v. Brass, L. R 3 Q. B. D. 667 ;
2 Crossly v. Maycock, L. R 18 Eq. 180. Crossly v. Maycock, L. R. 18 Eq. 180.
« Hughes V. Clyde, 41 Ohio St. 339 ; « ^inn ^, Bull. L. R. 7 Ch. Div. 29
Lewis «. Brass, L. R. 3 Q. B. D. 667 ; see [1877] ; and see Comm'rs v. Fetch, 10 Ex.
also The Guardians v. McLoughlin, 4 Ir. 611, aud Spencer v. Harding. L. R. 5 C.
Rep C. L. 457 [1856]. P. 561 ; Mainprice v. We?ley, 6 B & S.
"^In re Protestant School, 58 Barb. (N. 420. And see other English cases in Em-
Y.) 161. den's Law of Building, etc, pp. 58, 59;
^ Adams v. United States, 1 Ct. of CI. but see Eadie v. Addison, 52 L. J. Ch. 80,
192. 47 L. T. 543, contra.
« Municipal Sig. Co. v. Holyoke (Mass ), « Howard v. School, 78 Me. 330.
* See Sees. 171, 176, supra ; and see Sec. 797, infra.
184 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE [§ 183.
bidJer, but not equivalent to awarding the contract to him/ And when the
engineer informed a bidder in writing that his tender was accepted, and that
intimation was confirmed by the directors of the company upon his attend-
ance at one of their meetings, no document being executed accepting the
tender in such a manner as to be binding at law, and the project was after-
wards abandoned, it was lield that the contl-actor could not compel the com-
pany to execute a contract, nor could he recover from them the loss he had
sustained in preparing for the works.''
A bid properly made under valid and regular proceedings and once
accepted, and the contract awarded to the lowest bidder, is good always.'
A contract so made cannot be destroyed by the rescission of the ordinance by
the council;* but if the ordinance has not been legally passed, any and all
proceedings under it are invalid, and a contract under such an ordinance
gives a contractor no rights to recover damages for refusing him the work.*
A written proposal and an oral acceptance thereof have been held not to
constitute a written contract." But a written bid and a verbal acceptance
by a managing receiver, and a signing of the specifications and plans by the
bidder and the company's architect, have been sustained as a binding con-
tract.^ Proceedings which consist of opening bids and awarding the work,
without stating the amount of the bids submitted, or the sum for which
the work was awarded, have been held sufficient to authorize the con-
tract/
Where a contractor's bid for the construction of a building is accepted,
and the terms of the building contract are left to be stated in a writing
subsequently entered into by the parties, that writing is the highest evidence
of tlie terms of the building contract.'
The proceedings of public officials in opening the bids and awarding
contract is such business as should be overt and open to public inspection.
Frequently, therefore, the bidders are invited to be present when the pro-
posals are opened.
When the charter requires that bids shall be opened on the day named
in the notice, or on such subsequent day as the council might adjourn to,
and provides that the "council shall determine which proposal is most
favorable," it does not require the determination of such question at the
meeting at which the bids are opened.'"
' Leskie v. Haseltine, 155 Pa. St. 98. ' Girard L. Ins Co. v. Cooper, 16 Supp.
2 Jackson v. The N. W. Ry. Co.. 1 Hall Ct. Rep. 879
& Twelle R 75 [1848]. « Megrath v. Gilmore (Wash), 39 Pac.
3 Lewis V. Bra s, L. R 3 Q. B. Div. 667. Rep. 131.
4 Baiicl ». Mayor, 23 K Y. 254. ^Town of Hamilton v. Chopard(Wash.),
5 Baird v. Mayor, 83 N. Y. 254 ; hut see 37 P-ic. Rep. 472.
Carey t). E. Saginaw (Mich.), 44N.W. Rep. '<> Lilienthal v. City of Yonkers (Sup.),
168, [1890], where contract was not in 39 N. Y. Supp. 1037; and see People v.
writing and sealed, as charter required. Yonkers, 39 Barb. (N. Y.) 266. See also
•= Specht 7). Stevens (Neb). 65 N.W. Rep. Mayor v. Keyser (Md.), 19 All. Rep 706.
879; accord, Bruce tJ. Pearsull (N. J.), 34 and People v. Croton Aq. Bd., 26 Barb.
Atl. Rep. 982. (N. Y.) 240.
§ 184.] BIDS AND BIDDERS. 185
If the bidder has made a mistake and withdraws his proposal after it
has been accepted, he may be held liable to the owner for what the work
costs in excess of his bid.' Fraud or false misrepresentations by the owner
or his authorized agents as to the character of the work undertaken, and
an immediate notification as soon as discovered by the bidder, will relieve
him from his original offer, as it would also from the contract.*
The mere fact that a party is the lowest bidder, and knows that fact,
does not constitute an award to him of such contract under an act regulat-
ing the letting of work upon competitive bids, which provides that "if the
lowest bidder shall refuse or neglect, within five days after due notice that
the contract has been awarded, to execute the same, the deposit made by
him shall be forfeited to the city." " *
184. Bid to Furnish Materials. — If, in answer to an advertisement for
proposals to supply goods, to furnish materials, or to perform work, a bidder
submits a bid offering to furnish the materials or do the work in such
quantities or at such times as may be ordered, which bid is accepted, it
has been held that the bidder is bound to supply the goods or perform the
work when ordered although there is no binding contract on the part of the
acceptor to take or order anything, and that there is sufficient consideration
for the bidder's promise.* If this is good law and the bidder's offer cannot
be recalled or revoked, contractors and materialmen will do well to limit
their proposals as to quantity and time, so that they may not be compelled
to carry a stock of materials, or hold themselves in readiness to perform
such a contract, for an indefinite length of time.
If the dealer or manufacturer is bound to furnish materials when ordered,
it would seem that there would be a reciprocal obligation on the part of the
one inviting the bids to order from the bidder what materials he required
or purchased during the period named. So it has been held.* A contract
to furnish stone "at" such times and in such quantities as may be required"
was construed to refer to the needs of the work or service."
A contract to furnish materials in which the quantities were stated as
"more or less," and it was agreed that the materials should be delivered in
such quantities "as shall be directed by the treasurer and according to the
specifications and the requirements of the treasurer under them," and pay-
^ Lewis V. Bras5, L. R. 3 Q. B. D. 667. ^ Gt. Northern Ry. Co. -w.Witham, L. R.
2 Mill-tine «. Nelson. 51 111. 423. 9 C. B. 16 [1873].
3 Erving v. City of New York (N. Y. ^ Levey v. N. Y. Central R. Co , 24 N.
App ), 29 N. E. Rep. 1101, ap'ming 16 Y. Supp. 124.
N. Y. Supp. 612. • Mueller v. United States. 19 Ct. of CI.
581.
* The form of Instiuctions to Bidders has been made more comprehensive than or-
dinary work will require, but it is submitted that frequently circumstances exist where
they all may have a bearing, and conditions will arise which may be met by the clauses
here given.
If the circumstances do not require the use of all the clauses given, the engineer or
architect may omit such clauses as seem unnecessary by and with the advice or consent
of the company's or owner's legal adviser.
186 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 185.
ments were "to be made upon the engineer's certificate that the quantities
have been delivered as per requisition and in accordance with the specifica-
tions/' the words more or less always following each statement of quantity,
was held to be a contract for only what materials were needed, and that no
damages could be recovered for not taking the quantities stated in the
specifications/
If proposals are made for certain materials, as the stone in an old struct-
ure about to be torn down, specifying no limitations or qualifications, an
unconditional acceptance thereof has been construed a contract for all the
materials specified [stone].'
186. Form of Proposal for Public Work.
PROPOSAL
For the Constructio^t; Erection; for Improving, Removing, and
Building; to Furnish all the Labor, Tools and Materials;
TO Furnish and Deliver, to Exavacate, etc. etc near,
or on, or over Street,. Way, or Eiver at
City, Town of , County of , State of
Country.
To the Chief E^igineer, Architect , or Surveyor.
To the Board or Commissioner of Public Works,
Dear Sir or Gentlemefi.
We , the President, Secretary, Treasurer, and General Man-
ager of Company, a corporation duly authorized by act of
Congress or Legislature ,18 . . ., to contract and to do such
other business as is required under the annexed contract.
The undersigned do[es] hereby declare :
1. Not ill Arrears or Default. — That I, [We or the Company,]
am [are or is] not in arrears to the Company, City, or State,
upon debt or contract or by default as surety or otherwise.
2. Capacity to do Work. — That I, [We or the Company or
Firm,] have [has] been regularly engaged in contract work or in build-
ing or in the erection of of the class of work required by the
annexed contract and specifications for. . . .years, and that I [We or it]
respectfully invite attention to the following works that have been
erected by me [or us or the said .... Company], and respectfully
refer to the following parties for whom I [We or it] have performed
construction work : The New York and Brooklyn Bridge, erected
1870-1883, for the New York and Brooklyn Bridge Trustees, cost
$15,000,000 ; Office Building for The Manhattan Life Insurance Co.,
16 stories, 67 ft. by 125 ft., 72 Broadway, New York, 1893; etc. etc.
3. JVo Help from E^igiueers Office. — That this estimate and proposal
submitted has been prepared without any assistance from any person
belonging to, employed by, or liolding office in the Engineering [Ar-
chitectural] Department, or the Department of Public Works of tho
> Collmeyer v. Mayor, 83 N. Y. 116. * Thorn v. Comm'rs, 32 Beav. 490.
§ 185.] BIDS AND BIDDERS. 1B7
4. No Employee or Officer Interested. — That no member or delegate
...., nor any person acting for or employed by the Department of
Public Works of the City, [State, or United States,] nor any person
appointed by virtue of any city ordinance, [legislative act, or act of
Congress] relative to the work, is directly or indirectly interested in this
proposal or in the supplies or works to which it relates, or in any portion
of the profits thereof contrary to the ordinance or laws of the City,
[State, or United States ].
5. Bidder is the only Person Interested. — That I [We, the
Company,] am [are, is] the only party[ies] interested in this proposal or
in the contract proposed to be taken; that it is made without any con-
nection with any other person or persons making any proposal for the
same work, and that it is in all respect fair and without collusion or
fraud,
5\ Bidder alone Interested. — And I [We, or the Company],
of City, County, State, do further declare
that I [We or It] am [are or is] the only person [s], party or parties
interested in this proposal, and that no other person than the person
herein named has any interest in this proposal or in the contract
proposed to be taken.
6. Ordinance, Charter, or Act Examined. — That I [We] have examined
and am [are] familiar with the Ordinances...., [Acts of Legislature,
Act of Congress, or Charter of the City or Company,] mentioned in the
Advertisement and Instruction to Bidders, annexed, and relating to the
work in question, and will undertake to conform to such laws, ordi-
nances, and charter.
7. Locality Examined and Quantities Estimated. — That I [We], with
our Engineer, have personally examined the location of the proposed
work, and have satisfied myself [ourselves] as to the amount and charac-
of the work and materials necessary to complete the work according to
the annexed plans, specifications, and contract.
8. Terms and Prices. — That I, [We] the undersigned, further declare
that I [We] have carefully examined the annexed form of contract,
prepared by , and that I [We] will contract to provide all
necessary machinery, tools, apparatus, and other means for the con-
struction and do all the work called for by the said contract and
specifications and furnish all materials called for in the bill of quan-
tities, contract, and specifications in the manner therein prescribed
and according to the requirements of the Engineer, as therein pro-
vided, upon the following terms and for the following sums [prices],
to wit:
Item {a) $ Item {b).. $ Item (c) $
8*. That I [We] [the said Company], undersigned, do hereby offer to
perform the whole of the work and furnish all materials, labor, watch-
men, implements, tools, and machinery of every description necessary
for the perfect construction and completion of the work contemplated
in the annexed specifications, in accordance with the plans, specifications,
contract, etc., which have been examined by me [us] at the office of
the Engineer, and to conform to all the conditions appended hereto at
and for the prices given in the attached schedule.
188 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 185.
Approximate
Quantities.
2,000 cub. yds.
500 cub. yds. . .
430 cub. yds. .
If required. . .
100 cub. yds. .
If required
147,000 lbs
4,800 lbs
2,000 ft
11,800 lbs
152,000 F.B.M
1,500 lbs
8
Description.
kinds, in any
all incidentals
Slashing, clearing, close cutting,
and grubbing.. .
Excavations, all
soil, including
and refilling
Masonry, in abutment and wing
walls, including newels, tet in
Portland cement
Masonry, in piers for trestle-bents,
set in Portland cement
Ill 12-inch cedar piles
In concrete foundati ins
In timber for platforms
Steel in main girders and wind
bracing
Wrought-iron standards for side-
walk guard
"Wrought-iron gas-tube for side-
walk guard
Cast-iron handrail standards
Timber decking
Sheet lead .
Ornamental lamps;, fixed
Etc., etc., etc.
Denomination.
Per acre ,
Per cubic yd.
Per lineal ft. .
Per cubic yd.
Per M. B. M.
Per lb.
Per foot
Per lb.
Per M. B. M.
Per lb
Each
Price.
[Written out.] [Figures }
C.
9. Special Terms and Prices. — For all lumber used for sheeting and
shoring, but left in place by order of the Engineer, the sum of ...
per M feet, B. M.
For all extra work not included in the above items, by written order
of the Engineer, the various prices set against the following several
items :
Laborers per day.
Single teams and drivers per day.
Double teams and drivers per day.
First-class masons per day.
" " blacksmiths per day.
Helpers per day.
Foremen per day.
For all extra work done and extra materials furnished by written
order of the Engineer, not contemplated by this contract, the actual cost
of said work and materials, as determined by the Engineer, plus fifteen
(15) per cent, of said cost.
For all earth excavation of extra depth below grade, made by written
order of the Engineer, except , the sum of per cubic
yard.
10. Prices Include Everything. — The abov-e prices are to include,
the cost of doing all other work required by the contract and specifi-
cations or appertaining thereto.
10\ What Prices Include. — The prices named are to include [cover}
any and all work and materials that may be necessary to connect the
work done with the adjoining work in a proper and workmanlike man-
§ 185.] BIDS AND BIDDERS. 189
ner, and in accordance with the plans, sections, and profiles prepared by
tlie Engineer, and according to the terms of the contract and specifica-
tions attached, and the rules and regulations of the city, and under the
direction and to the satisfaction of the Engineer, at the following rates,
to wit :
10'. Prices Include Everything. — The prices are to cover all expenses
of every kind involved in, or incidental to, the completion of the con-
tract, including any claims that may arise through delay from auy cause
in the performance of the work thereunder.
11. Delivery, — The prices are also to include the delivery of all
materials on the wharf, or at the works, or at the structure, etc., on
the street, river, way, of the city of
12. Samples Submitted. — The bidder pursuant to the [annexed] in-
structions to bidders has prepared and herewith submits the following
samples of materials and workmanship, the equal of which he will
undertake to furnish throughout the execution of the work according
to the contract and specifications. The samples are marked as follows :
Sample 302 C— Rock-faced Gray Limestone, 16" X 20" X 36".
Sample 12 B. — Test Specimen, Basic Open-hearth Steel ; Tensile
Strength lbs ; Reduction Area per cent; Elongation
ins. in inches. Etc , etc . . , etc.
13. Commencement of Work. — I [We, the said Company],
undersigned, will commence the work within ten days of the execution
of the contract, and will prosecute the work to completion within the
limit of time hereinafter named, in accordance with the requirements
and provisions of the contract.
14. Time to Complete. — I [We, the Company] will require
working days from the date of commencement to complete the
whole of the work.
15. Liquidated Damages. — I [We, the Company] will pay
the sum of dollars, liquidated damages, for each and every
day that the contract is unfulfilled after the time mentioned for com-
pletion in the contract, the. . . .day of , 189. .
16. To Keep in Repair. — I [We, the Company] undersigned,
also agree to maintain in complete repair the whole of the works under-
taken in this contract, and all roads, ways, streets, etc., interfered with
or required to be rebuilt in the construction of the works, for a period
of twelve months after the complete performance of this contract.
17. Limit of Atvards. — Notwithstanding I [We, the Com-
pany] have proposed for several sections of the work advertised, it is
my [our] wish that the total work awarded to me [us] shall be limited
to dollars, and to bo not less than dollars.
18. Certified Check. — Accompanying this proposal is a certified check
[accepted bank cheque] for the sum of dollars [$ ], as called
for in the advertisement, instructions, or notice to bidders; and it is
hereby agreed and understood that in case of refusal or failure to exe-
cute the contract and furnish the bond hereto annexed with the
City [Company or State], within ten days after the acceptance of this
proposal, the said check shall be forfeited to the said City
[Company or State] as liquidated damages for such failure, and that all
contract rights acquired by the acceptance of this proposal shall be
forfeited, and all obligations assumed by the parties in connection there-
19G ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 18.5.
with shall be released and mutually rescinded ; that if this proposal be
rejected or the contract awarded to another party the certified check
shall be returned to the undersigned within three days after such
rejection.
18\ Certified Check. — Accompanying this proposal is a certified check
for dollars [$ J, which shall become the property of the
City [Company or State] of , if in case this proposal is ac-
cepted by the said City [Company or State], or its authorized officers;
the undersigned shall fail or refuse to execute the contract and furnish
a bond, according to the requirements of the instructions to bidders,
hereto appended, within the time provided by said notice; otherwise
the said check shall be returned to the undersigned within three days
after the date set for opening the bids.
19. Sureties Offered. — In case this proposal is accepted by the
Messrs resident
of and resident
of are offered as sureties for the faithful execu-
tion of the contract.
19\ Consent to Become Surety. — If this proposal be accepted and the
contract awarded to me [us] [the Company] I [we, the Com-
pany] hereby agree to furnish approved sureties for the construction of
the said works and to execute the contract and bond therefor in the
form attached, and according to the general conditions forming a part
thereof, within . . . days after being notified so to do by the engineer;
and in the event of default or failure on my [our] part in any par-
ticular or, for any cause whatever, the said shall be at liberty
to accept the next lowest bid or any bid, or he [it] may readvertise for
proposals, and I [we] hereby agree to pay to the said the
difference between the above proposal and any greater sum which they
[it] may be obliged to pay by reason of such default or failure, in-
cluding the cost of any advertisement for new bids, and to pay the
attorney of the said the cost of the preparation of such
contract and bond, which is hereby fixed at ten dollars ; and to
indemnify and save harmless the said corporation and officers from
loss and damage, cost, charges, and expense, with which they may suffer
or be put to by reason of any such default or failure.
And I [we] propose Mr of
and Mr
of as sureties
who are willing to become bound with for the due performance
of the said contract.
Signature •< Address <
AVe, the undersigned, do hereby offer [consent] to become bound for
the above-named in the annexed
Bond for the fulfillment of any contract for any of the works named in
the annexed specifications which may be awarded to
at the prices herein above set forth.
Signature of Sureties \
§ 185.] BIBS AND BIDDERS. ■ 191
20. Signatures, Addresses, and Date, — Signature of Person, Firm,
or Corporation making proposal :
, Post Office Address
Dated
The full names and residences of all persons interested in this pro.
posal [as principals] are as follows :
[Notice.— Give Christian names as well as surnames, and, in case of corporations, sign name
of President, Treasurer, and Manager. The names of bidders will be made public ; but tlie
names of all parties interested with them, being required for the Information and guidance of
the Board only, will not be made public]
21. Oath as to Statements, —
City of
Oounty of
^tate of
The undersigned,
being duly sworn, say that the several declarations and matters stated
in this proposal are in all respects true.
[Signed] ,
Residence
Subscribed and sworn to before me, this
day of A.D. 189.., at
, JSr. P. or J. P,
[Notice. -This affidavit must be made by the person or persons bidding for the contract ; ia
case of a firm, by eacn and every member of the firm,]
22. Bond for Execution of Contract, —
Know all Men by these Presents,
That we are held and
firmly bound unto the City of [State or Company] in the
sum of dollars, lawful money of the United States of
America, to be paid to the said The City of [State or Company],
its successors and assigns, as liquidated damages, for which payment,
well and truly to be made, we bind ourselves, our heirs, executors, and
administrators, jointly and severally, firmly by these presents.
Sealed with our seals and dated the day of
in the year one thousand eight hundred and ninety
Whereas, the said
ha made a proposal to the City of [State or
Oompany],. bearing date the day of one thousand
€ight hundred and ninety , and annexed hereto :
Now the condition of this obligation is such that if the said
shall, within ten days after the acceptance of the -said proposal, well
and truly execute the contract in accordance with said proposal, then
this obligation shall be of no effect ; otherwise it shall remain in full
force and virtue.
{Seal.:)
■ i^Seah)
Signed and sealed in ]
the vresetice of C
CHAPTER VII.
BIDS AND BIDDERS. WORK FOR PRIVATE PARTIES.
186. Lowest Bidder on Private Work. Owner may Adopt such For-
malities and Make such Requirements as he Pleases. — Advertisement and
proposal for private work are less formal and ceremonious than for publia
work, but many of the instructions, conditions, and stipulations given herein-
before, with slight modifications, will do for private work if an owner deifires-
to have public competition. It is more usual for a private owner, and evea
companies, to invite by letter such contractors and builders as they desire tO'
entertain proposals from, to make bids. The expense of printing blank
forms of proposals, specifications, and contracts is then saved, the engineer
or architect keeping on file at his ofiice, and open for the inspection of the
bidders, the specifications and plans and general contract form to be used,
with his estimate of the quantities. Sometimes three or four sun-print
copies are made to enable more bidders to estimate or to give a few bidders-
more time to make their estimates.
The forms presented heretofore for public work are so elaborate and
complete that the author deems it hardly necessary to submit a new set of
forms for private work, but recommends that the clauses of the public form
be used in so far as the owner and architect consider it pertinent and
desirable, such modifications being made as seem necessary to make it con-
form to private needs and ends. The important questions that arise in
advertising for public work and the award of the contract, and all questions-
as to what the owner or proprietor may or may not require, what he may
include, whether or no he secures competition, and to whom or how he^
awards the contract do not arise in private work, except as they have been
made matters of agreement between the owner and the bidders.' Tlio
owner can adopt his own methods in soliciting, receiving, and accepting pro-
posals; can make whatever rules, conditions, and restrictions he sees fit; c;in
make any amount of work and trouble for the contractors who in good faith
go to the expense of preparing estimates, plans, and specifications; and may-
then award them or not, as he pleases, and to whom he pleases. The owner
may, it seems, appropriate and make use of the fruits of their labors with-
* English cases in Emden's Law of Building, etc., p. 59, note.
193
§ 187.] BIBS ANB BIBBERS. 193
out any thoughts of recompense, without a grain of remorse, and if it be a
a church society, without sacrificing a pennyweight of piety.
187. In Absence of Agreement or Pledge, Owner may Exercise his Own
Preference. — As just stated, the rights of the lowest bidder on private work,
are confined to those created by agreement. He has no rights expept such
as have been agreed to by the oVner, and if there is no contract expressed or
implied, then the lowest bidder has no*claims to the contract, and the pro-
prietor is under no obligation to award it to him. In tiie absence of a
pledge or definite understanding between the parties that tlie lowest bidder
shall be employed to do the work, the owner may exercise his own jirdgment
and give personal preference in determining whose offer he shall accept.
He is not liable to one whose offer is rejected for the time and labor
employed by him in examining the plans and specifications to prepare him-
self to make his offer.* The owner may inquire into the fitness, skill,
integrity, and sobriety of the respective bidders.'
To establish any claim against private parties an agreement to award the
contract to the lowest bidder must be clearly proven.^ The agreement need
not, it seems, be in writing, and its proof may be largely established by the
acts of the parties and by supplemental promises.'' If there is anything iu
the invitation for proposals that shows an undertaking to accept the offer
of the lowest bidder, then the person inviting the bids may be holden to his
agreement,^ and the testimony of other bidders may be admitted to show
the statements made to them by the architect and the owner respecting the
terms under which the bids were made.®
The mere fact that valuable services are rendered does not raise a
liability on the part of the person for whom they were executed, even though
at his request, if the circumstances are such as to rebut the inference that
compensation was expected to be received or paid. In the case of architects
putting in bids for the construction of buildings or of engineers for the con-
struction of bridges or other works, and furnishing plans and specifications
therefor, unless the parties calling for bids expressly agree to pay for such
plans and estimates, there can be no contract implied, for there is nothing
in the circumstances that shows that pay was expected to be received or
given, except through the possible benefit to the parties performing thft
service in acceptance of their bids.^
^ Topping «. Swords, 1 E. D, Smith, 609 and see Reusch v. Amer. Brew. Ass'n, 44
[1852]; see also Reusch v. Amer. Brewing La. Ann. 1111, and supra.
Co. (La.), 11 So. Rep. 719. « Huckstein v, Kelly & Jones (Pa. Sup.),
sLeskie v. Haseltine (Pa. Sup.), 25 Atl. 25 All. Rep. 747.
Rep. 886; State v. Bd. of Ed., 42 Ohio St. ' Wood's Master and Servant (2d ed.)
374; iindsee Spencer v. Harding, L. R. 5 103; Palmer •». Haverhill, 98 Mass. 487,
' C. P. 561. in which the contractor was tl.e lowest
' Doyle «. Dusenberg, 74 Mich. 79. biddt r, but »11 bids were rejected, and ;
'* McNeil v. Boston Chamber of Com- whs held he could not recover ; Topping ?>.
merce (Mass.). 28 N. E. Rep. 245 [1891]. Swords, 1 E. D. S. (N. Y.) 609; Buck v.
^Roscoe's Digest of Building Cases 48; Amidon, 41 How. Pr. (N. Y.) 376; Noury
and see Allen v. Yaxall, 1 C. & K. 315 ; v. Lord, 2 Keyes (N. Y.) 617.
194 ENGINEERING AND^ARGUITEGTURAL JURISPRUDENCE. [§188.
If a contractor will protect liimself against the loss of time and labor in
preparing proposals for work, he should insist upon an agreement with the
proprietor that the lowest bidder shall be awarded the contract. If he does
not do this he may expect to make fruitless bids for work, and his time and
trouble be employed simply to give the proprietor a basis on which to let
the work to some favorite contractor or builder previously selected.
188. Implied Agreement to Remunerate Bidder for His Labor or to
Award Contract to Lowest Bidder. — It has been intimated that if bidders
had had no knowledge that the competition was not in good faith, and
could show that bids were invited solely for the purpose of making the
lowest possible contract with a party previously chosen, they could
recover for their time and labor spent in preparing the bids. It would be
almost out of the question to establish such proofs, and even then it would
-be doubtful if an implied contract would arise in favor of the contractor.*
Acceptance of a bid has been inferred and a contract implied from an
t)wner's conduct, in connection with evidence of a usage in the building trade
to accept the lowest bidder. So when builders were present at the opening
of the bids and it was generally understood that the lowest bid was to be ac-
cepted, because nothing was said or intimated by the owner or his agents
to the contrary, and, acting on that assumption, the unsuccessful bidders
-dined at the successful bidder's expense, and all parties by their conduct
showed apparently the same understanding, it was held to amount to an
acceptance of the bid.' The terms of the proposal must be definite and ex-
pressed so that they show the terms of the contract, and the subject-matter
must be described. Instructions or directions to the bidder to go on and do
the work have been held an acceptance when he had made a proposal to do
the work as specified.^
When an agreement is alleged between private persons that the lowest
bidder shall have the contract, but it is not proven, and the contractor's bid
is an unsigned memorandum, without reference to any particular building
and without names of parties or specifications, and no mutuality of obliga-
tion is shown, the contractor has no rights." An intimation in the written
^acceptance of a tender that a contract will bo afterwards prepared does not
prevent the parties from becoming bound to perform the terms of the
tender and acceptance, if the intention of the parties was thereby to enter
into an agreement, and if the preparation of the contract was contemplated
merely for the purpose of expressing in formal language the agreement
already arrived at.^* If, however, it can be gathered from the tender and
^ 2 The Engineering Magazine 482. ^ Lewis v. Brass, L. R. 3 Q. B D. 667;
"^ Pauling V. Pontifex, 20 Law Times 126 hut see Lefurcry v. Stewart (Sup.), 23 N. Y.
11852]. Siipp 537, where the price of stone named
2 Burch V. Hotel Co., 7 Mo. App. 583. in bid was held to be the fair and reason-
* Doyle V. Duseuburg (Mich.), 74 Mich. able value of the stone, coming precisely
79 [1889]. within the bid.
' * See also Sees. 183, supra, and 796, 797, infra.
[§ 188. BIDS AND BIDDERS. ' 195
acceptance that an agreement was made subject to the preparation and ap-
proval of a formal contract, then there is no agreement independent of that
stipulation, and it is by the formal contract that the parties will be bound.*
When proposals for a contract are in writing and executed by the parties,.
i. e., have been made and accepted, the terms of the contract being in all
respects definitely understood and agreed upon, and either party refuses to
execute the contract, it seems he is liable on the breach of his agreement for
the same damages as would be recoverable for an entire refusal to perform
the contract after its execution in writing." When, however, the documetit
was not executed, accepting the tender in such manner as to be binding at
law, the engineer having merely informed the bidder that his proposal was-
accepted, which intimation had been confirmed by the directors of the com-
pany at a meeting at which the bidder was present, and the project was-
afterward abandoned, it was held that the contractor could not compel th&
company to execute the contract, or recover from it the loss he had sustained
in preparing to do the work.'
Plans and specifications referred to in a call for bids are treated as incor^
porated into and forming a part of the contract as well as other matter
referred to in the call.* *
A proposal to receive bids for certain things to be sold, specifying no
limitation or qualification, constitutes a contract to include the whole of
such thing.^ This case arose out of the sale of stone contained in an old
bridge, and would apply with equal force to the sale of materials of an old
building, f
1 Winn V. Bull, L. R. 7 Ch. D. 29 [1877] ; & Twelle 75 [1848].
Com'rs «. Fetch, 10 Ex. 611. * Woods Law of Master and Servant (2d
2 Pratt V. Hudson River R. Co., 21 N. Y. ed.) 164; citing Windhorst v. Deeley, 2 C.
305 [1860] ; and see Highland Co. v. B. 253.
Rhoades, 26 Ohio St. 411. ^ Verm v. Commissioners, 32 Beav. 490^
3 Jackson v. The N. W. Ry. Co., 1 Hall [1863].
* S66 Seca. 314-533. infra, \ gees. 1S5-199 are omitted.
PART III.
A CONSTIWGTION CONTRACT, ITS PHRASEOLOGY,
TERMS, CONDITIONS, S TIP ULA TIONS, PR 0 VISIONS
AND REQUIREMENTS, AND THEIR INTERPRETATION,
CONSTRUCTION, AND FORCE.
CHAPTER VIII.
INTRODUCTION. AUTHORITY TO CONTRACT. REQUIREMENTS.
MUTUAL AGREEMENTS, THE CONSIDERATION". DESIGNATION OF PARTIES.
SUBJECT-MATTER OR UNDERTAKING DESCRIBED.
200. Form of Introduction.
CITY OP
DEPARTMENT OF PUBLIC WORKS.
CONTRACT AND SPECIFICATIONS
FOR THE IMPROVEMENT OF
1897.
** This Agreement, made and entered into this i . , . .
day of in the year one thousand eight hundred and
ninety , by and between his heirs, executors, and
assigns [or, if it be a company or board, their successors and assigns],
part of the first part, by the Commissioner of Public Works, or
by its Board of Park Commissioners, or acting by and through the
'. Commissioners, by virtue of the power vested in them by
Chapter of the Laws of 189 . . of the State of ,
parties of the first part, and John Doe, his heirs, executors, or assigns, of
the City of ., County of , State of
, Contractor, party of the cecond part.''
196
[§ 204. CONTRACT STIPULATIONS. 197
201. Another Form of Introduction.
CONTRACT AND SPECIFICATIONS FOR
LETTING NO.
" xHis Agreement, made and entered into this day of
, 189. ., by and between the City of ., of the County
of , State of , party of the first part,
and , of , County of , State
of , party of the second part, Witnesseth :
WuEREAS, The Board of Public Improvements of the City of
, under the provisions of Ordinance No , approved
, and by virtue of the authority vested in the said
Board by the charter and general ordinances of the city, did let unto
the said , party of tlie second part, the work of
202. Remarks upon the Matter of Introduction. — The form of intro-
duction, date, parties, and residence have been dwelt upon sufficiently in
Part I for all practical purposes. As stated in Chapter I, ** the power or
authority by which public officers or agents act should be set forth in the
written instrument, and the act, ordinance, or charter under which the con-
tract is assumed should be given.''
203. The Mutual Agreements and Undertakings — Technically the Con-
siderations of the Contract.
" Now Therefore, In consideration of the covenants, agreements,
and payments hereinafter mentioned to be performed and made by the"
said first party the said hereby covenant(s), agree(s),
undertake(s), and promise(s), under the penalty expressed in a bond
bearing even date with these presents, and hereunto affixed, at
own proper cost and expense, to do all the work and furnish all the
materials necessary to construct and complete in ac-
cordance with and as described in the following specifications herein
contained, and in full compliance with the terms, conditions, and
stipulations of this agreement."
204. Mutual Agreements between a Company and Three Contractors.
" Now These Presents Witness, That the parties hereto, hereby
mutually contract, undertake, and agree with each other, and that the
said A B, C D, and E F, so far as the stipulations and provisions of
these presents, and the works, matters, and things herein mentioned
and referred to, are to be performed, observed, executed, or done by
them, do hereby for themselves, and every two and each of them,
covenant with the said Company, and the said.
Company, so far as the said stipulations, provisions, matters, and things
are to be performed, observed, executed, or done by it, hereby covenants
with the said A B, CD, and E F, and separately with each two and
one of them, in manner following, that is to say ; "
198 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 205.
205. Mutual Agreements and Undertakings — The Consideration.
" AViTKESSETH, That the parties to these presents, each in considera-
tion of the undertakings, promises, and agreements on the part of the-
other herein contained, have undertaken, promised, and agreed, and do-
hereby undertake, promise, and agree, the parties of the first part for
themselves, their successors and assigns,* and the party of the second
part for and heirs, executors, and administra-
tors, as follows : "
206. Words Employed to Designate Parties Explained and Described.
Clause: "That whenever and wherever in this agreement the phrase^
'party of the second part,^ or the word * contractor,' or a pronoun in
place of either of them, is used, the same shall be taken and deemed to-
mean and intend the part of the second part to this agreement.
"That whenever the word 'engineer' is used in these specification*
or in this contract it refers to and designates the chief engineer of
the , acting either directly, or through the^
deputy chief engineer, or any assistant or division engineer having
general charge of the work, or through any assistant or any inspector
having immediate charge of a portion thereof, limited by the partic-
ular duties intrusted to him.
"That whenever the word. is used in these specifications
or in this contract it refers to and designates the parties of the first
part to this agreement."
207. Words Employed Extended to the Personal Representatives of tha
Parties.
Clause : " That whenever the term ' the city' [or 'the company '] is used
it shall include the Mayor and Council of the city [or the directors of
such company,] their successors and assigns,* acting for and in behalf of
the city [or the company and its stockholders] the party of
the first part to this contract; and the term 'the contractors' shall
extend to the persons who are partners in the firm of
and Company, or if the contractor be an individual it shall include hi*
executors, administrators, heirs, and assigns."*
208. Undertaking of the Contractor — General Description of the^
Work — Subject-matter of Contract.
Clause: " The party of the second part will, at own cost and
expense, and in strict conformity to the hereinafter-contained specifi-
cations, furnish all the materials (not herein agreed to be furnished by the-
part. ... of the first part) and labor necessary or proper for the purpose;
and in a good, substantial, and workmanlike manner excavate ,
do all other excavation, build all masonry, and do all other work
pecessary to complete and all its appurtenances, from
point L to point K, along the line shown on the plan Sheet No , in
County, in the manner and under the conditions herein
specified/'
209. Subject-matter of the Contract.
Another clause: " The builder shall at his own cost erect, build, and
completely finish, in a good, substantial, and workmanlike manner, a
, and other buildings or structures upon a piece
♦The word "nssiains" should not be used if the assigument is prohibited, as ia
Clauses Sees. 14 and 291-296.
§ :212.] CONTRACT STIPULATIONS. 19d
of ground belonging to the owner or company, situate, etc., and con-
taining, etc., according to the plans, elevations, and specifications of
works and drawings which have been respectively signed by the con-
tractor, and by , the engineer or architect of the owner; of
which plans, specifications, and drawings the said builder shall have the
custody during the progress of said work; but shall deliver them, or
any of them, when required, to the said owner,. or to his architect for
the time being, at the said building, for his inspection and examination,
and upon the final completion of said work shall deliver them up abso-
lutely to the owner; and the builder hereby admits that the said speci-
fication, plans, and drawings are sufiicient for their intended purpose,
and that the work can be successfully executed in accordance there-
with, without any additional or extra work other than such as is neces-
sarily implied therein, or to be inferred therefrom, upon a fair and
liberal construction." *
210. Provision that Contractor shall Furnish Everything.
Clause: "The contractor shall provide and be at the expense of all
materials, labor, carriage, implements, tackle, machinery, scaffolding,
and other matters, ways, means, and conveniences, and things of every
description that may be requisite for the transfer of the materials, and
for executing, constructing, carrying on, and completing the works."
Clause: " The contractor shall find all labor, services, agencies, tools,
scaffolding, implements, moulds, models, utensils, machinery, cartage,
and power of every kind and description necessary for the full, safe,
expeditious, and proper performance and completion of the works, and
also all materials, except those mentioned in the second schedule hereto,
which will be provided by the company, but are to be placed, erected,
and laid down, and otherwise made part of the works, by the
contractors."!
211. Contractor to Use Improved Appliances.
Clause: " He shall provide andwse such modern and improved appli-
ances for the performance of all operations connected with the work
embraced under this contract as will secure a satisfactory quality of
work, and a rate of progress which in the opinion of the Engineer will
secure the completion of the work within the time herein specified, '*
etc.
212. Provision that Contractor shall Furnish Everything.
Clause (long form): "The contractor[s] shall at their own cost and
charge provide all materials, engines, pumps, machinery, coffer-dams, cais-
sons, dredgers, tug-boats, barges, diving appliances, hydraulic apparatus,
compressed-air plant, grouting apparatus, shields, scaffoldings, strutting,
shoring, moulds, templates, centers, tools, implements, tackle, special
appliances, instruments, utensils, and plant of every sort, kind, quality,
and description whatsoever; and also all the labor, workmanship,
carriage, wages, sheds, coverings, matters and requisites whatsoever
that may be necessary for the due and perfect completion of the several
works described in the specification, or shown upon the drawings, or
which may be implied from them separately or together, or from such
additional drawings and directions as may from time to time be furnished
by the engineer or resident engineer, or may be submitted to and
♦ See Sees. 236-248 and 249-251, infra. \ See Sees. 260, 261, infra.
200 ENGINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 212.
approved by them respectively. All places wherein any materials are
being made or obtained for the works, and the whole of the processes
connected therewith, and all other operations of the contractors and
any authorized subcontractor or tradesmen, shall be open to the inspec-
tion and control of the engineer and resident engineer, and of all per-
sons authorized by them, at all times. The contractor[s] shall be held
responsible for the care, protection, and safe keeping of any and all
materials and work or parts of work until its final completion and
acceptance/'
CHAPTER IX.
PLANS AND SPECIFICATIONS.
WHEK A PAET OF CONTRACT. DISCREPANCIES OR CONFLICT BETWEEN
THEM AND THE CONTRACT. INSUFFICIENT PLANS OR SPECIFICATIONS.
CUSTODY OF PLANS AND SPECIFICATIONS.
213. Provision that Work and Materials shall Conform Strictly to
Specifications and Plans, Which are Made a Part of the Contract.
Clause: "And it is further expressly agreed that all the work, labor
and material to be done and furnished under this contract shall be
done and furnished strictly pursuant and in conformity to the follow-
ing specifications and plans, and the direction of the engineer as given
from time to time during the progress of the work under the terms of
this contract and the following specifications, which said specifications
form part of this agreement."
213a. Specifications and Plans a Part of the Contract.
Clause: " It is further expressly agreed and understood that all the
materials and work contemplated and described in this contract and in
the specifications shall be done strictly pursuant to and in conformity
with the following described specifications and general plans which are
attached to, signed or initialed (or in strict conformity with the speci-
fications and general plans on file in the office of the engineer, a copy
of [both of] which has been [will be] furnished to the contractor), and
in accordance with the detail drawings and directions which will be
given from time to time during the progress of the work, which speci-
fications, general plans, and detail drawings [and directions] are hereby
made a part of this agreement, to be equally binding with the other
terms of the contract/'
Clause : "The work done and materials furnished shall be strictly
pursuant to and in conformity with the following-described specifica-
tions and plans, which are attached to, signed, or initialed, and made
a part of this agreement, and which drawings and specifications shall
be equally binding with the contract.^'
SPECIFICATIONS.
214. Provision that Specifications and Plans shall be a Part of the Con-
tract.— Some such clause should be incorporated into a construction con-
tract and is necessary to insure a complete contract. Very often many of
201
202 ENGINEERING AND ARCHITEGTURAL JURISPRUDENCE. [§ 215.
the important stipulations and conditions of a jontract are incorporated
into the specifications as general conditions applicable to almost any work,
and they should be made a part of the contract with certainty. The plans
showing the extent and size of the work undertaken, the specifications
describing it and the materials to be used, and the directions as to the
performance of the contract are a necessary and important part of the
contract. They are as binding as are the terms and covenants of the
contract.*
If the specifications are attached to the contract and are expressly made
a part of it, they together constitute the contract, and a guaranty contained
in the specifications is binding upon the contractor.'
215. There Must be a Clear Reference in the Contract or Specifications,
One to the Other, or They Must be Physically Joined. — If the parties have
actually done what the clause recites as having been done, and have com-
plied with the requirements stipulated, there can be no question that they
are bound by the specifications and plans as part of the contract; ' but fre-
que*atly the specifications and plans are not attached, nor signed, nor de-
scribed, nor even referred to in the contract, and these are the cases which
provoke litigation.'
If there is nothing in the contract referring to or connecting it with other
writings, drawings, maps, etc., and they are not attached nor annexed to it,
nor signed, then they cannot be made a part of it, nor be introduced to ex-
plain, vary, modify, or change. the contract. They cannot be connected
with the contract by oral evidence.* *
As early as 1806 it was decided that when a contract is contained in two
separate papers, in neither of which there is any reference to the other, the
papers must be physically joined or fastened together in order to carry the
signature of one over to the other ; that to have the signature attach to ,he
second paper it should have been literally made a part of the one signed.
This was not a case of drawings and specifications, but of a memorandum of
an auction sale by an auctioneer. The conditions of the sale were read in the
presence of the party, and then laid upon the table under the paper upon
which the names were subscribed, but not fastened to it. No reference was
made in the paper signed to the paper lying underneath, and it was held that
the underlying conditions of the sale could not be regarded as part of the
memoranda of the bargain, nor received as the terms of the agreement. The
drift of the argument and opinions was that there was no connection between
* the papers that was apparent, either externally or internally, by words of
reference or by context, and that therefore parol evidence would have to
1 Coey V. Lehman, 79 III. 173; Braggs v. ^ Coey v Lehman, 79 111. 17':J; Bniggs ».
Geddes, 93 111. 39. Geddes, 93 111. 39.
2 Lake View «j. MacRitcbie, 134 111. 203; ^ Fortiscue v. Crawford (S. C), 10 S. E.
accord Smith v. Flanders, 129 Mass. Rep. 910; hut K*e Kene Val. Drainage
333. Comm'rs v. Dunkley, 4 Cb. D. 1.
J * 866 also Cbap. V, Sees. 12?-13l. supra.
§216.] CONTRACT STIPULATIONS. 203
be resorted to to connect them, whicli was not allowable.* This is the law,
and is supported by a' great many cases.*
It is not required that the reference be made in the contract; it has been
held that it might be made on the plans in the form of a memorandum, and
signed by the parties at the same time the contract was executed. Such a
memorandum has been held, to be sufficient to incorporate it into the con-
tract and to control the description in it.^ •
216. Contract may Consist of Two or More Written Instruments.— A con-
tract may consist of two or more writings, but they must be connected by
clear reference in one to the other, when parol evidence may be employed
to identify the writing or drawing referred to.^ Two instruments executed
at the same time between the same parties relative to the same subject are
to be taken together as forming the parts of one entire agreement if a clear
reference is made in one to |;he other.* So far as referred to, the specifica-
tions become constructively a part of the contract.' In an action by a
subcontractor against a contractor it was held that a replication or plea
that work had not been completed according to the plans and specifications
of the government architect was insufficient in that it did not aver that
the work was not done according to the contract." The second writing may
be the consideration of the contract executed.' A warranty deed and a
written contract executed the same day as parts of the same transaction, each
being the consideration of the other, will be considered together as embody-
ing the entire contract, and all parol negotiations, or precedent or concur-
rent verbal agreements, regarding the subject-matter will be merged therein.®
The truS'meaning of such a contract is to be ascertained from a study of all
the instruments and their effect upon one another."
A letter written and signed by a painter, naming the kind and quality of
materials to be used, and how they were to be applied, is a specification
signed by the parties, and annexed to the contract it becomes a part thereof
and is to be construed therewith.^" If there are no plans and specifications
which describe the work, the character of it maybe shown by other evidence."
» Hideu. Wliitelioiise, 7 East 558 [1806]. nee White v. McLaren. 151 Mass. 553; and
*Neneyal. Drainage Comm'rs «. Dunk- Donnelly v. Adams (Cal.), 46 Pac. Rep.
ley, 4 Cb. D. 1; and see Coey v. Lehman, 916.
79 111. 173; Braggs v. Geddes, 93 111. 39. « United States «. Dixey (C. C), 71 Fed.
3 Alabama Ins. Co. -w. Oliver, 2 So Rep. Rep 846.
445 [1887]; Cfentenary M. E. Ch. v. CHne, i Miller v. Edgerton(Cal.), 15 Pac. Rep.
116 Pa. St. 146; Donlin v. Daegling, 80 111. 894 [1888].
608; Bnckmaster v. Jacobs, 27 La. Ann. « c^rr v. Hays (Ind.), 11 K E. Rep. 25
6i(i; Western v. Pollard, 16 B. Mon. (Ky.) [1887].
315. ^ Howard v. Pensacola & A. R. Co., 5
•* Woodward «- Jewell, 25 Fed, Rep. 689 So Rep. 356; see also Bolles ®, Sachs
{1885]; and see Dechert v. Munic. Elec. (Minn,), 33 N. W. R'p. 863 [1887],
Lt, Co. (Sup.). 41 N. Y. Supp. 692. ^^ McGev^g\e v. Broenal (N. J.\ 20 Atl.
5 New England I. Co. «. Gilbert, etc, R. Rep. 857 [1890]; and see Bragg «?. Geddes,
Co., 91 N. Y. 153; Cook v Allen. 67 N. 93 111. 39.
Y. 578; Tonnele v. Hall, 4 N. Y, 140; and ^^ Doane College ^.Lanham. 26 Neb. 421.
* See Chap. V, Parol Evidence, Sec. 122 et seg, supra.
204 ENOINEERINO AND ARGHITEGTURAL JURISPRUDENCE. [§ 218.
When the contract and the plans and specifications all fail to determine the
amount of work to be done, a writing which was furnished the contractor to
estimate and bid upon, and by which he made his proposal, which was
accepted, and which writing specified within limits the amount of work, is
properly admitted in evidence as an accompanying specification/
217. Use of Parol Evidence to Identify Instruments Referred To. — If
there be a clear reference to certain plans and specifications they may be
identified by parol evidence, and when identified they may be considered in
connection with the contract to determine whether the contract is void for
uncertainty.'' Therefore when a contract provided that labor and materials
shall be furnished " according to the drawings and specifications, which are
to be regarded as the descriptive part of this agreement," — describing parts
of the work embraced, and everything shown on the plans and described in
the specifications, prepared by Mr. , architect,— to identify the specifi-,
cations and plans evidence had been admitted that they had been exhibited
to the contractor before he entered into his contract, that he had used the
same and no others in the construction of the edifice, that none other had
been exhibited to or examined by him, that all the materials and labor fur-
nished had been in accordance with them, and it was held proper, though it
may not have been necessary.' *
218. Plans Exhibited to Contractor when Contract was Entered Into. —
How far the mere exhibition of plans and specifications to a contractor, or
the exhibition of maps and plans by a vendor of real estate to a purchaser,
at the time of entering into a contract, become parts of the contract, is well
worth inquiry. If the contract is silent on the subject of such plans or
maps, and there is no reference in the plans themselves connecting the two
together, then the plans and maps cannot be made a part of the contract.*
This is so with respect to acts of parliament as well as contracts. Notices,
plans, and sections deposited are not to be used afterwards in construing the
act, except so far as they are referred to and incorporated into the act itself.*
When they are so referred to and incorporated into the act, effect must be
given to them according to the act.' However, if a plan or map is exhibited
to a purchaser of property and shows certain division of the land, by pro-
posed roads, the vendor cannot afterwards divide up the land in an entirely
different manner so as to attract the population of the place in another
direction from what the original plan would have done.^ Such an exhibi-
tion of a plan or map will not determine the width of a street so that it can-
' Monmouth Park Ass'n tJ. Warren (N. '^Korth British Ry. Co. v. Tod. 1'2 CI.
J.), 27 Atl. Rep. 982. & Fin. 722 ; Beardmer v. Loudon & K W.
^BpigiQ '0. Williams, 138 Ma^^s. 544 Ry.. 1 Mao. «& G. 112 '
[1885]. "5 Peacock v. Penson, 11 Beav. 355,
2 Fry's Specific Performance of Con- 361.
tracts, § 910, and English cases cited.
, ■ *8ee Sec. 215, supra.
§ 219.] CONTHACT STIPULATIONS. ■ 205
not afterwards be changed, even when the plan was referred to and used as
a description of part of the property.*
When the terms of a contract required work to be done according to
plans and specifications attached, and a dispute arose as to how a part of
the work should be done, the builder has been allowed to put in evidence
a plan that was exhibited to him at the time he made the contract to explain
how that work was to be done, though it was not attached to the contract.'
219. Instruments Referred to as Signed or Attached, not Signed nor
Attached. — When the contract refers to drawings and specifications as " made
by Mr. ■, architect, and as being signed by the said parties and hereunto
annexed," and in fact no specifications or drawings were signed or annexed^
the specifications and drawings are not a part of the written contract ; but
parol evidence is competent to show what specifications were intended to
hold or were actually agreed upon," and that they are in legal effect incor-
porated into the contract.*
These decisions should never be made an excuse for not properly describ-
ing papers and drawings in the contract so that they may be promptly and
certainly identified, without resorting to parol evidence. The plans and
specification should be annexed or signed by the parties, 30 there can be no
dispute as to authenticity, even though it does not seem to be necessary, as
was held in the following case. Specifications were referred to as " verified
by the signatures of the parties," and which were to be " taken as part of the
contract," but were not in fact signed, the contractor having remarked
when it was proposed to sign them that " it was not necessary." The speci-
fications were read over to him at the time of signing the contract, and it
was held that the specifications were a part of the contract by adoption,,
although they were not signed, and that if the work was not performed in
accordance with them as stipulated in the contract, and there was never a
substantial performance, the architect was justified in refusing his certificate.^
Where the specifications were not signed, and they were referred to only
to show the kind and quality of work and materials, a clause therein that
the work is to be "warranted tight, including the roof, for two years'^
was held not a continuing warranty, but a description of the quality of
the roof."
If the contract refer to " annexed " specifications, but none are in fact
annexed, but a copy of certain specifications were produced by the engineer^
'Fry's Specific Performance of Con- Adams (Cal.), 46 Pac, Rep. 916.
tracts, g 912. ^ Sutherland v. Morris, 45 Hun 560
2Myer v Pniin (Tex.), 16 S. W. Rep. [1887]; see also Millstone Granite Co. «.
868 [1891] ; and see Cocbeco Bank v. Dolan, 18 N. Y. Supp. 791 [1892]; and
Berry, 52 Me. 298; Cook v. Allen, 67 N.Y. Phoenix I. Co. v. Richmond, 6 Mackey
578 ; New Eng. Iron Co. v. Gilbert El. R. 180 [1887].
Co.. 91 N. Y. 153. ' Lemon v. Smith, 14 Daly 520 [18«8]
^Demarest v. Haide. 52 N. Y. Sup. Ct. « White v. McLaren, 151 Mass. 553; see
398 [1885]; Hoas: « Hillemeier (N. Y.), 24 also Goddard v. Barnard, 16 Gray 205 ; M.
N. E. Rep 807 [1890]; but see Donnelly v. E. Parish v. Clarke, 74 Me. 110.
206 BNGINEMUNQ AND ARCIIITEGTUHAL JURISPRUDENCE. [§ 219.
which he testified had been furnished to the contractor, it was held that
these specifications would hold/
A Michigan case makes the plans and specifications referred to, and to
be thereafter signed, but which were not in fact signed, subordinate to the
contract, but admitted the unsigned specifications to show what kind of a
front the building was to have, and as evidence of what had been agreed on.
They were admitted in explanation of tlie contract, but not in contradiction
of it.^ It has been held that the specifications need not be signed by the
parties if they were otherwise sufficiently identified.'
A bond conditioned that the contractor shall furnish all materials and
labor ''as specified and shown on plans furnished by" the architect may be
read in the light of such plans, specifications, and contract, all having been
•executed at the same time. Such a bond requires no reformation to recover
thereon for a breach of the contract.*
A contract between a principal contractor and a subcontractor which
provides that the specifications annexed to the principal contract, their
terms and conditions, shall be considered " as if hereto attached," and that
the subcontractor should be subject to all the terms and restrictions of the
principal contract, has been held to completely subject the subcontractor to
all the provisions of the principal contract, with the same effect as if they
had been literally and bodily incorporated into the subcontract/
The specifications referred to must be followed, and should not be
•departed from, even with the consent of the superintendent." Though
the contract provide that work shall be done according to the plans and
specifications, and such directions as the supervising engineer may give>yet
the contractor is bound only by such directions as will insure the comple-
tion of the work according to the plans and specifications.*' The owner
may consent to variations from the specifications.* Another case is au-
thority for the statement that when a contract refers to another paper for
its terms,. the effect is the same as if the words of the paper referred to were
inserted in the contract.'
Papers referred to are frequently admitted as evidence to explain am-
biguity, such as quantity sheets from which bids were prepared," or plans,
1 Galveston, H. & S. A. Ry. Co. v. John- » grown d. Decker, 142 Pa. St. 640 [1891]:
son (Tex.y 11 S. W. Rep. 1118; fiemhle, Tonnele «. Hall. 4 K Y 140: .<?«« also
Hoacr «. Hillemeier (N. Y.). 24 N. E Rep. Cook v. Allen. 67 K Y 578 : N. E. Iron
807 [18901; Texas & St. L. Ry. Co. v. Rnst, Co. «. Gilbert E. R. Co., 91 N. Y. 153 :
19 Fed. Rep. 239 [1883]; see alsoBaxhev v. Adard v. MuVloon, 45 111. 198; Coey v.
Chicago (111.), 88 N". E. Ren. 253; New Lehman. 79 111. 173.
England I. Co. v. Gilbert El. R. Co.. 91 N. « Adlarrj v. Mnldoon. 45 111. 193 ; Fitz-
Y. 153; and see Schwiesau d. Mahon gerald «) Moran. 141 N Y. 419
<Cal ), 42 Pac. Rep. 1065. ' Burke v. Kansas Citv. 34 Mo. Anp. 570.
^ Maxted v. Sevmour, 56 Mich. 129. sBesw'rk v Piatt. 140 Pm St. 28.
' Whit" V. McLaren (Mas«.), 24 K E. » Adam.'? v. Hill. 16 Me. 215 [1839] ; Forst
Rep. 911 [1890]. 151 Mass. 553. 'o. Leonard (Ala ) 20 So Rep 587.
4 Watson ij. O'Neill (Mont.), 35 Pac. loMonnionth Park As 'n «. Warren (N.
Rep. 1064. J.), 27 Atl. Rep. 932 [1893].
§ 220.] GONTliAGT STIPULATIONS. 207
though not attached to contract/ nor referred to.' Specifications em-
braced in an advertisement for proposals to do work from which a contract
results, are the basis of the contract, and cannot be excluded as evidence.*
When an advertisement refers to plans and specifications as those at the
department of public works, and the contractor, while making his bid, is
shown, by an authorized agent in charge of the city office, plans called
"tracings," and the contract executed refers to plans and specifications in
the same office, it was held that the plans and specifications shown to him,
i. e.y the tracings, were the plans and specifications forming part of his con-
tract, and that the city was estopped from denying that they were not the
ones adopted for the work. *
If the contractor undertakes to build in accordance with such plans
a,nd specifications as may be prepared or fixed by the engineer or archi-
tect, he will be held to his agreement notwithstanding that the plans
and specifications prepared differ materially from those exhibited to the
contractor when he made his bid, and also materially changed the value of
the work/
220. Plans and Specifications to be Registered with Contract. — The
California courts have held that plans and specifications referred to in a
contract were such an essential part of the contract as to require that they
be filed for record under a statute which requires that all building contracts
lor a sum greater than one thousand dollars must be filed for record witli
the county recorder or the contract will not be enforceable, and that a neg-
lect to record them with the contract was fatal to the validity of the con-
tract, and that no recovery could be had by either party to the contract.*
A defense that the plans and specifications referred to were not attached
to or made a part of the contract, and therefore the contract was not filed
in its entirety as required by statute, cannot be made use of for the first
time on appeal/
Under a lien law providing that a building shall not be liable to lien if the
contract be filed, it was held not necessary to file the specifications with the
contract where by the contract the contractor agreed to do all the work
and furnish all the materials.* So, too, plans and specifications for an im-
'Mvor '0. Fruin (Tex), 16 S W. "Rep. « Willamotte R. M. Co. ■». L'^s Anffeles
.868 nSftll; Millstone Granite Co. -cDolan, C. Co. (Cal.), 29 Pac Rep 629 [18921;
18 N Y Supp. 791. Schwie«!an i) Mnlion (Cnl.). 42 Par. Rop.
^Whelan v. McCnllongh, 4i;,App. D. C. 1065: upp.. Jwwevr. Parks v. TiDpie(Tex.>,
58. 34 S. W Rep. 676, wliere a failure to reff-
^ Campbell Co. «. Yonts y (Kv.\ 12 S. ister was excused, because the owner
W. Ren. 805 [1891]: s^mhlfi, Whelan v. would not S'^rrender ihe only copy of the
McCnlloufrli, 4 App D. C. 58. contract for re2:istrv.
^Cityof Chicas:o«. Sexton. 107111 323, ''Wlnte v. Fresno Nat. Bank (Cal ), 33
115 111. 230 [18851 ; accord, Mver v. Fruin Pac. Rep. 979.
(Tex.). 16 S. W. Rep. 868 [1891]: Millstone « Freedman v. Sandknop (TsT. J ). 31 Atl.
Granite Co. v. Dolan (Super. Ct.), 18 K Y. Rep. 232 : semhU, Mra<^ v. Duff (Wnsh.)»
Supp. 791. 39 Pac. Rep 267 : La Foncherie v. KnuU
» Harvey v. Unitod States. 8 Ct. of CI. zen (N. J.), 33 Atl. Rep. 203.
601 ; Cannon v. Wildman, 28 Conn. 472.
208 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 223.
provement of the streets of a municipal corporation need not be adopted by
ordinance, but a resolution of the council is sufficient/
221. Ordinances and Regulations Referred to in Contract. — A contracb
which recites that work shall be done and paid for "according to the ordi-
nance and specifications" adopted by the common council, makes the ordi-
nance a part of the contract, not only as to the manner in which the work
shall be done, but also as to how it shall be paid for.' But when a con-
tract provided that "B. & 0. Specifications should govern," and the in-
strument referred to proved to be a regular form of construction contract,,
containing an agreement that the company might at any time suspend or
annul the contract pn giving notice, etc., it was held that this agree-
ment was not incorporated into the contract, notwithstanding the fact that
the' contractor had five years previous signed such a contract and worked
under it."
222. Contract Annexed to Other Instruments Embodies Them. — Without
doubt, if the plans and specifications are in any way attached or annexed to the-
contract and as a part and parcel of it, they will be incorporated into it, and
if the contract provide that the work shall be done according to specifica-
tions which are annexed, the specifications will hold as any other part of the
contract." When so attached to a contract at the time of its execution, all
previous and contemporaneous agreements as to changes in the specifications
aVe merged in the contract, and cannot afterwards be shown in contradiction
to the plans and specifications annexed.'
The determination of the question whether or not the plans and specifi-
cations are a part of the contract is for the judge, and it is error to leave it
to the jury. The jury may determine facts concerning the execution of the
contract, as to whether the specifications were or were not annexed to the
contract, or exhibited or read to the contractor, but it is wrong to leave
the construction of a written contract to a jury." If there is a dispute as te
which of two writings embodies the contract, both instruments may be
submitted to the jury to determine that question.'
223. Reference to Specifications and Plans or to a Model.— To experi-
enced contractors it will no doubt seem an odd question to raise as te
whether a contract can be made to erect a structure according to certain
definite written instructions contained in plans and specifications, when
agreements are frequentlv made to build in accordance with.printed regula-
tions adopted by bnilders' associations and trades unions cv after a model
- 'Snntn Hrnz Pnv Co. v. Henton Cal.). ^^,'^^^' ,^^P- ^S^-, o-. n i o.i o • ,
m V'\c. ■R'-n 698- and nee Bmdford v. ^ Taylor v. Palmer, 31 Cal. 241 ; Smitli
Pontine (111. Sup.). 46 K E Rep 794. i> Flanders 129 Mass 322
>-^^Q~-| ^ Ooery D Lehman, 79 111. 173 : Taylor c.
sgtfitP'P MiclnVin Citv(Tnd \ 37 TT. E. Fox 16 Mo App. 527; McGuiuness v.
ppn ^(\i^^.sieeahoGQ^'noy'>^ Church (TT h ), S'-annon. 154 MaPS 86 ^ ^ , . „
«*> N W Pep 51- aeeord DeKiv-?). Bli^s. « Spence i). Board of Com rs (Ind.), 18
•42 Hnn 059; Mittnaebt 'd. Wolf, 6 Pa. N IC Rep. 513 [1889].
g^ 44 ' Watrener r. Butler, 27 KY. Supp. 350^
» Baltimore & O. R. Co. v. Stewart (Md ), affirming earlier cases.
§ 226.] CONTRACT STJPULAT10N8. 209'
designated.' If a builder may undertake to build a house exactly like
another house in the neighborhood, he may equally as well contract ta-
bu ild a structure like unto certain plans and specifications which describe*
it. If models were as numerous or so easily changed as written instruments^
without doubt it would be even so necessary to deposit duplicate models
with both parties and to initial the parts thereof. As the model house is
admissible evidence of the complete performance of the contract, so are th&
plans and specifications good evidence of that fact. There must always be
a clear reference to the model or specifications, and they should be so
described that they may be easily identified. The most convenient method
of identification is that of signing or initialing each drawing and detached
sheet, which is recommended in all cases.
224. Reference to Maps in Deeds and Other Forms of Conveyancing. —
Where reference is made in a deed or devise to a map or plan which is a.
public record for description of the property, the map or plan will control.*
Such map or plan is to be regarded as giving the true description of thes
land as much as if it were expressly recited and marked down in the deed
itself.' The same is true if a reference is made to another deed for the
description contained in it.* If the description in the deed and reference?
to the map lead to absurdity, it will be presumed that it was intended to
confine the devisee or grantee to the dimensions there given/
225. Provision that Contractor shall Not Take Advantage of. any Errori^
or Omissions or Discrepancies Existing between or in the Plans and Speci-
fications.
Clause: "It is hereby further expressly agreed and understood that
in the event of anything reasonably necessary or proper to the due and
complete performance of the works (of which the engineer shall be
the sole judge) having 'been omitted to be shown in the drawings, or
which is not described in the specification, through oversight or error,,
the contractors shall, notwithstanding, execute and provide all such
omitted works and things, as if they had been severally shown and
described, without any extra charge, and according to the directions of
the engineer, and to his satisfaction, subject, however, to the provisions
contained in sec chap "
226. Provision that no Advantage shall be Taken of Errors, Omissions,
or Discrepancies ; and Engineer to Explain and Determine their True Mean-
ing and Import.
Clause: "It is hereby further expressly agreed and understood that
the specifications, drawings, and conditions as set forth are intended to
cooperate and to agree, and that they are to be interpreted so that any
work exhibited in the drawings and conditions and not mentioned in
the specifications, or vice versa, are to be executed the same as if it
^ Model, Meincke v. Falk, 61 Wis. 623 * Vaunce v. Fore, supra; see also Djirma
[1884]; Ricker v. Cutter. 8 Gray 248. t. Horicin I. M. Co., 22 Wis. 691, descrip-
2 Finelile v. Sinnott, 125 N. Y. 683. tion in an award.
» Vauuce v. Fore, 24 Cal. 436 [1864]. * Fiuelite v. Sinnott, supra.
210 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 22'
were mentioned in the specifications and set forth in the drawings,
according to the true meaning, spirit, and intention of the said draw-
ings, conditions, and specifications, without any extra charges wliat-
soever;" "that if any discrepancies or variations appear between any
of the drawings and the specifications, or between any of the several •
drawings in themselves, such discrepancies shall be interpreted, ex-
plained, and adjusted by the engineer; that any doubts or misunder-
standings as to the meaning or import of these specifications, or any
obscurity in the wording of them, shall be explained and decided by
the engineer, who shall have the right to correct any errors or omis-
sions in them when such correction is necessary for the proper fulfill-
ment of their intention; the correction to date from the time that the
engineer shall give notice thereof; and that all directions and expla-
nations required, alluded to, or necessary to a full completion of the
work shall be given by the engineer." *
227. Conflict between the Contract, Plans, and Specifications. — Generally
if there be conflict between the several parts of a contract the court will
make every effort to ascertain what was the intention of the parties, and
the contract will be in accordance with that intention. If the intention of
the parties is legal, it will govern. If not incompatible with some rule or
maxim of the law the mutual intention will prevail always, and this is
called the polar star in expounding all instruments. The entire contract
Tvill be considered, which includes the plans and specifications and all other
writings referred to and made a part of the complete contract. All must be
considered in determining the meaning of any and all of its parts. Every
part will be given such a meaning as shall be consistent with all the rest
sind in keeping with the evident object and intention of the parties. As
one sentence may modify the meaning of another sentence, so the true
meaning of a paragraph may be interpreted in the light of other para-
graphs. It is not supposed that people use language for idle purposes, and
therefore effect will be given to every expression in the contract if possible.
The contractor will be required to comply with the contract in every
material particular, as called for by a fair, reasonable, and practicable con-
struction of the contract, plans, and specifications taken together; and where
there is conflict in these, they should be reconciled in a practical and
workmanlike manner, so as to arrive at the fair and reasonable intention
thereof.^
The court will, so far as possible, put itself in fhQ position of the parties
:at the time the contract was executed, and consider the conditions and cir-
cumstances under which they assumed the contract obligations. The sub-
ject-matter, the knowledge that the parties had with regard thereto, the
object in view, and the inducements which led them to enter into the con-
tract may all be considered in determining the uncertain meaning of ii
contract. The conduct of the parties and the practical interpretation
» Linch V. Paris Lumber Co., 80 Tex. 23.
* See Sec. 402, infra.
§ 228.] CONTRACT STIPULATIONS. . 211
which they themselves have given to the terms of their contract will be
given great, if not a controlling, influence if the meaning is capable of
more than one interpretation, or the several parts are in conflict.*
Therefore when the contract and specifications did not agree with the
working plans or the working model furnished, and the work was done
under the direction of the engineer according to the plan, model, or sample
furnished, the practical construction which the parties adopted, and accord-
ing to which the work was done, will prevail over the literal meaning of the
contract and specifications.^
However, this cannot be taken as a general rule, for in most cases words
will be interpreted according to their literal meaning, except when it is
proved that they have acquired an exact and technical meaning in trade or
business, as by custom or usage. f
228. Contract Usually Prevails over Specifications. — In a construction
contract it is the contract itself which is usually regarded as the instrument
by which the obligation to perform the work or to furnish the materials is
assumed, and there is a tendency to give greater weight to it than to the
plans and specifications, which are chiefly descriptive of the work and the
manner of its performance, and which are almost always subject to change
or modification. When, therefore, the contract required cornices in twenty-
five rooms, and the specifications required cornices in the halls and all
rooms, and the owner selected twenty-five rooms to be corniced, it was
held in an action for extra work for running cornices in the halls and
storerooms that the contract rather than the specifications should govern
as to the amount of cornicing to be done, and that testimony was ad-
missible that the selection of rooms did not include the halls and store-
rooms.'' When a building contract provides a mode of determining
extras, and the specifications referred to by the contract, and which are
made a part of it, provide a different and inconsistent mode of determin-
ing extras, the contract will prevail.' The time of completion has been
determined by the contract when it was at variance with the specifica-
tions, the former requiring the work to be completed " without unnecessary
delay as soon as ordered,^^ and the latter " within three months from the
date of the contract." * A guaranty as to capacity or service of works will
not be controlled by specifications containing statements as to distance,
dimensions, etc'
1 Dist. of Columbia 'c. Gallagher, 124 U. Rep. 937, 53 Minn 59.
S. 505 [1888]; semhle Saunders ^. Clark, '^ Boteler v. Roy, 40 Mo. App. 234; and
29 Cal. 299. see Williams v. Fitzmaurice, 3 H. & N.
■^ Ti'ichler v. Apple (Fla.), H So. Rep. 844.
273 30 Fla. 132. ^ Sade I Wks. 'o. Guthrie Center (Iowa),
3 Meyer v. Berlandi (Minn.), 54 N. W. 66 N. W. Rep. 81.
* As to what evidence is admissible to prove a contract see Chap. V, Sec. 123, supra,.
Parol Evidence.
f See Chap, XXI.. Sees. 603-628, infra.
'212 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 229.
When the plans and specifications do not agree there seems to be no
.sufficient reason for giving one more weight than the other. Both are pre-
pared by the engineer, and each with the same care. It is confessed that
frequently at the time of the execution of the contract changes are made in
the specifications which may not be made upon the plans, because it may
require drawing instruments, etc., to effect the same changes in a plan that
are quickly made in the specifications with a writing-pen. One might
reasonably expect that more weight would be given to the specifications, as
signifying best the intention of the parties. When, therefore, the specifica-
tions fixed the size and character of columns for a structure, it was held
that the contractor could not show that columns of a different size were
more ixi accord with the plans.*
in cases of disagreement or apparent disagreement between the parts
of a contract the court will adopt that construction that will conform to
both instruments if it can discover such a construction. Therefore when
there is a dispute between the parties as to the dimensions of work the court
will adopt a construction that is consistent with both the plans and specifica-
tions. Where the specifications required all walls to be vaulted, and the plans
showed them to be sixteen inches in width, without any vaultings or spaces,
it was held that the walls were to be sixteen inches including the vault,
and that parol evidence could not be admitted to explain the contract.'
In another case where the specifications required all walls to be plastered
with K. & Co/s cement, under the direction of the superintendent of K. &
€o., and in another place the specifications required that the cement and
sand should be mixed in equal parts, effect was given to each requirement
by holding that the superintendent's supervision applied to the laying of
the cement plaster on the walls, and that the contractor was not justified
in using a less proportion of cement in the mixture, even though the
superintendent did assent to it.'
229. Provision that Engineer May Adopt that Interpretation and Con-
struction Which is Most Favorable to the Work and Owner.
Clause: ''In case of repetitions, variations, or discrepancies in the
terms of the contract, specifications, and drawings, the interpretation
and determination of which are doubtful, it is distinctly understood that
the engineer may adopt that interpretation or construction which
shall secure in all cases the most substantial and complete performance
of the work, and be most favorable to the city, company, or owner,
and secure to it the most ample protection.*
230. Contract's Terms are Usually Construed Most Strongly Against the
Party Preparing Them. — In the absence of an expressed intention to the
•contrary, a contract which is capable of two constructions, or language
1 Linch V. Paris L & G. C. (Tex.), 14 ^ g^nith v. Flanders, 129 Mass. 322 [1880].
S. W. Rep. 701 [1890]; and see ^WWam^ v. ^ pitzgerald v. Moran, 19 N. Y. Supp.
Boehan (Super. Ct ), 17 N. Y. Supp. 484. 958.
* See Chaps. XII and XIII, Sees. 335-417, infra.
§ 232.] CONTRACT STIPULATIONS. 213
which is of doubtful or double meaning, will be construed most strongly
and unfavorably against the party who used the language, or the maker of
the instrument, or against that party that stipulates the payment of the
debt, or the performance of the work. In other words, a construction con-
tract will generally be interpreted most unfavorably to the owner or com-
pany having the work done if its meaning is not clear, and in favor of the
contractor.^ An exception has been made in some cases to this rule where
the government is a party, the court maintaining that in the interpretation
of public instruments it should adopt that construction which is most favor-
able to the government.'^
231. Provision that Written Matter shall Prevail Over Printed Parts.
Clause: " AYhenever and wherever the written parts of this contract,
or these specifications or plans, do not agree, or are in apparent conflict
with the printed terms or instructions, or with the scaled dimensions of
the drawings [plans], the written terms or dimensions shall be preferred,
and prevail in both matters of construction and estimates, provided,
however, that nothing herein provided shall limit or destroy the power
of the engineer to interpret such terms or dimensions in such manner
as is most consistent with the needs and requirements of the work, and
of that question the engineer shall be the sole judge."
232. Written Matters versus Printed Matters. — Where the written and
printed portions of a contract are repugnant to each other, the rule is that
the printed form must yield to the written clauses of the instrument, as the
latter are presumed to be the deliberate expression of the real intent of the
parties.^ In case of conflict the written matter must prevail over printed
matter in a contract.* Therefore it was held that a printed billhead could
not be allowed to control, modify, or alter the terms of a contract clearly
expressed in writing below it.* Of course it must be shown what words
were written." The type-written rider of an insurance policy will prevail
•over the printed parts thereof.'^
Like any other parts of the contract, however, if they can be reconciled
by any possible construction, the court will adopt that construction. The
•condition of the parties, and the circumstances surrounding them when
they entered into the contract, will also be considered to make them agree.
The whole object is to discover the intention of the parties. The printed
parts of contracts are usually intended to apply to a number of different
'Norton v. Brophy, 56 111. App. 661; Murray ??. Pillsbury (Minn.), 60 N. W.
-Gautz V. Dist. of Columbia, 18 Ct. of CI. Rep. 844; Chadsey «. Guioii, 97 N. Y.
569, and a word may be supplied, or even 333 [18841; Clark v. Woodruff, 83 N. Y.
omitted; Norton v. Brophy, svpra. 518 [1881].
'Jackson v. Reeves, 3 Pai. (N Y.)293; ^gturm v. Boker. 14 Sup. Ct. Rep. 99;
Mohawk Bridge Co^ Utica & S. R. Co., Schenck v. Saunders, 13 Gray 37, fol-
•6 Pai. (N. Y.) 554; but see contra Garrison lowed.
^. Unit(^d States. 7 Wall. 688, and Otis v. "East Texas F. I. Co. v. Kempner (Tex.),
United States, 20 Ct. of CI 815. 34 Rep. S. W. Rep. 393.
3 Haws V. St. Paul F. & M. Ins. Co., 130 'Mascott v. Granite State F. Ins. Co.
Pa. St. 113 [1889] (Vt.), 35 Atl. Rep. 75.
*Hill V. Miller, 76 N. Y. 33 [1879];
214 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 233".
jobs, and not to one exclusively, while the written parts are special state-
ments and provisions inserted with special reference to the subject-matter
of the contract under discussion. The written parts are the immediate-
language and terms of the parties themselves, while the printed words are
a general formula adapted to similar occasions and jobs, and to other
parties. *
To have the written part of a contract control the printed part it nmst
be inconsistent or opposed to it. The fact that the provision for payments
on a building on architects' certificates is contained in the printed part of
the contract, and that the written part provides that the payments shall be
made at fixed stages in the progress of the work, and at definite times after
its completion, does not render the printed provision inoperative, since
there is no inconsistency between it and the written part of the contract.*
A special written addition to a printed form used in a contract is entitled
to special weight in construing the contract, as it is presumed to have been
separately and particularly considered by the parties, and to express their
exact agreement on the subject of it.'
It is a question, therefore, if such a clause making the written parts of
a contract prevail over the printed parts is not only unnecessary, but on the
whole undesirable, as limiting the authority of the engineer to interpret the
specifications, plans, and contract in conformity with and in a manner con-
sistent with good work.
233. Punctuation. — Punctuation has little weight in determining tlie
meaning of a contract. The want of punctuation marks will not be allowed
to vitiate a contract, or destroy its meaning, any more than bad grammar or
bad spelling. The court may supply them if necessary to make the whole
instrument rational and self-consistent.*
234. Unauthorized Changes and Alterations in Plans and Specifications
and Liability Therefor — Liability of Person Making the Changes. — Several
interesting questions come up when changes or alterations have been made
in the plans, specifications, or contract after they have been signed, and with-
out the consent or knowledge of both parties. What changes amount to
forgery, andwhether changes by the architect or engineer can be attributed
to the owner or company, and what is the effect of such material changes
upon the contract itself and the rights and obligations of the parties, are
some of the questions that present themselves.
Inducements to make such changes unfortunately exist at times, but the
cases that have found their way into court are rare indeed. Mistakes made
in drawing the plans or in making computations of dimensions and quanti-
ties, or the omission of necessary parts or details by the architect or engi-
1 11 Amer. & Eng. Ency. Law 516, and ^ Dick v. Irelfind, 130 Pa. St. 299 [1889]
casefi cited. "U Amer. & Eng. Ency Lfiw 521, 522;
sMichaelis v. Wolf (111.), 26 N. E. Rep. Hawes v, Slernbeim, 57 111. App. 126.
884 [1891].
§ 235.] CONTRACT STIPULATIONS. 215
neer or designer or his assistants are incentives for the author of the blunder
to conceal or correct his mistakes in as artful and complete a manner as
possible. One person may seek to shift his own mistakes on to the head and
slioulders of others, and it is easy to understand why persons who are most
likely to make such mistakes might be the very ones who would not have
the moral courage to own them and take the consequences.
Such changes in a contract or in plans and specifications that were a part
of a contract would no doubt amount to forgery, and subject the perpetrator
to an action for damages or an indictment for deceit or even forgery under
the laws of some states. The statutory laws of a state must determine what
is necessary to make it a forgery, but without doubt the elements of forgery
as generally defined would exist in such a case.
235. Responsibility for Unauthorized Changes by Engineer or Architect,
between Owner and Contractor. — Ordinarily, when alterations in an instru-
ment have been made by a third party or an agent or officer in whose cus-
tody it has been placed without express or implied authority, it will not avoid
the contract, note, or bond, as the case may be.^ A giving of the custody of
an instrument, as a note, to another has been held not an implied authority
to make alterations therein.'' The same should hold of an act of an archi-
tect or engineer in making changes in the plans or specifications of work.
Without some show of authority or knowledge, the owner or company should
not be held responsible for such acts. It has been held that changes made
in the plans and specifications after the contract was signed, and without the
knowledge of either party, did not vitiate the contract.'
An English case seems inclined to a contrary view, and the sentiment is
expressed that if the changes were for the benefit of the owner or company,
he is as responsible for the alteration of the contract as if he had made it
himself, in so far as the destruction of the contract itself or the contract
obligations are concerned."
When a contractor has undertaken to erect buildings on the owner's
land under wTitten conditions, which after being signed were kept on the
owner's behalf by the architect, and one of the conditions made the archi-
tect's certificate a condition precedent to the right to payment, and the con-
tractor had been paid for all the works for which the architect had certified
and upon a quantum 7neruit in respect of works for which no certificate had
been given, and it appeared that an erasure had been made in a material
part of the contract, and the jury having found that the erasure had been
made by the architect after the contract had been signed, the contractor con-
tended that the contract was void and that he might sue on a quantum
meruit ; but he was non-suited, and the court held that notwithstanding the
' Amer. &Eng. Ency. Law 505, andcases ' Consaul v. Sheldon. 35 Neb. 247 [1892].
cited. 4 Pattinson t>. Luckley, L R. 10 Exch.
« Coburn v. Webb, 56 Ind. 96; Lemay v. 330 [18751.
Williams, 32 Ark. 166.
216 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 236.
erasure the conditions were either still the government document, or at least
must be looked at to see what were the real terms of the contract, .and that
the contractor could not recover on a quantum meruit}
The question was not what the owner could do against the contractor
nor what the owner's rights were. It may be that if the contractor had done
none of the work, and the owner had sought to enforce the contract after
having spoiled the document, he would have been unable to have enforced
the contract;^ or had the contractor done the work badly, the owner could
not have recovered damages in an action for bad building. But the ques-
tion here was on what terms is the contractor to be paid ? He is entitled
to be paid on the terms actually agreed on. If he fails to show any agree-
ment he is not entitled to be paid at all. In case of goods sold and deliv-
ered it is. easy to show a contract from the retention of the goods, but that is
not so where work is done upon real property. If the contractor shows the
contract, he must show all its terms. The instrument under which the work
was done, though altered in a material part, is still the governing document
to determine the rights of the contractor. Therefore he is bound by the
conditions which made the architect's certificate a condition precedent to
recovery, and cannot recover, having been paid the full amount of such cer-
tificate. The act of the owner does not destroy the rights of the contractor;
the general rule prevents the person who has made the alteration from setting
up the contract for his own benefit. A quantum meruit would require the
court to infer another contract, shutting out what it knew had occurred,
and what was the real essence of the contract."
A statute might determine the effect of such a material alteration in a
contract. The alteration made was the erasing of a clause to the effect that
extra work should not be required to be ordered in writing.
It has been held that the addition of a map or plan to the record or copy
of a deed, for the purpose of making the claim of the grantee more specific,
does not render the grant inoperative if there was no fraudulent intent or
purpose to make it appear as part of the original deed.'
236. Provision that Contractor shall Guarantee Sufficiency of Plans and
Specifications.
Clause : " The contractor [s] hereby further declare[s] and agree [s] that
he [they] shall be responsible for the full performance and completion of
this contract, and that by the execution hereof he [they] admit[s] that
he [they] has [have] carefully studied and compared the said plans, ele-
vations, sections, and the specifications and particulars before referred
to, and admits, vouches, guarantees, or believes that they are sufficient
for their intended purposes, and that they can be carried out and
executed in full without any additional or extra work other than the
'Patlinson v. Liickley, L. R. 10 Exch. 'Winnii>isiogee Paper Co. ?), NewHnmp-
S30 [1875]. shire Land Co. (C. C), 59 Fed. Rep. 542.
2 Powell t>. Davett, 15 East 29.
§ 237.] CONTRACT STIPULATIONS. 217
work set forth herein, or necessarily inferred to be done from the gen-
eral nature and tendency of the plans and descriptions aforesaid/'
237. Insufficient Plans and Specifications. Liability of Either Party to
the Other Party. — In construction work cases frequently arise where the
completion of the work according to the plans and specifications adopted
becomes irapnicticable or even' impossible, or where the structure fails or
falls in consequence of the imperfect design or the lack of skill in adopting
proper methods of construction. Such cases must be distinguished from
failures due to the use of inferior materials or to the workmanship of the
contractor or his mechanics. The failures referred to in this section are due
to defects in the plans and specifications adopted, and result from lack of skill
or want of attention on the part of the engineer or architect. As such failures
are usually attended with delay and additional expense, the question as to
who is responsible for the sufficiency and accuracy of the plans and specifi-
cations is an important one.
If the contractor has undertaken to guaranty the sufficiency of the plans
and methods adopted for the erection and completion of a work, there is no
doubt of his liability under such a guaranty; but as such a guaranty is not
usually exacted of the contractor, the cases in the books are for the most
part those arising under contracts, from which the clause given above has
been omitted. A review of those cases will show the propriety of adopting
such a clause on work involving new materials, new methods, and new
processes.
If the failure is due to defective work or defective materials furnished
by the contractor, if he has failed to do what he has agreed, or has furnished
unskilled workmen or weak or worthless materials, or has put them together
in an unworkmanlike manner, if he has neglected to drive the bolt home, or
to protect his work against floods and storms, the loss will be the contractor's
own loss, and this will be so even though the company have had inspectors
upon the work and it has been under the direction and supervision of their
^engineer, who through incompetency and dishonesty has estimated and al-
lowed it each month. ^ * If the contractor has been negligent or unskillful in
the"performance of his work, he cannot take shelter behind the plea that the
plan is defective and that the structure would not have stood if it had been
rightly done.' Insufficiency of plans will not excuse a contractor from do-
ing his work in a proper manner nor from furnishing good, sound, and
appropriate materials,' nor from completing his contract."!
^ Drliew V. Altoona, 121 Pa. St. 414; 573 [1888]; Waul v. Hardie, 17 Tex. 553;
School Trus ees v. Bennett, 3 Dutch 515; Hillyard v. Crabtree, 11 Tex. 268.
see also Charlock v. Freel, 50 Hun 395 ^ Loiindsbeny v. Eastwick, 3 Phila. 371
[1888]. [1859].
2 Accord, Trustees v. Bradfield, 30 Geo. 1 ; * Hooper v. Webb. 27 Minn. 485; hut see
girder /'tiled hecau<*e it was poor material; Lambert v. Fuller, 88 III. 260.
semble, Spence v. Bd. of Com'rs, 117 Ind.
* See also Sees. 674-680, infra. f See Sec. 238, infra.
218 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 238.
238. Does Owner or Contractor Warrant Sufficiency of Plans? — An English
case decided in 1874-6 is frequently cited as authority for the statement that
the company does not warrant, and therefore is not responsible for, the suffi-
ciency of plans adopted by it, but that the contractor must satisfy himself
of their practicability before he enters into his contract. The facts of this
case, briefly stated, are as follows : The City of London being about to erect a
bridge had its engineer prepare plans and specifications descriptive of the
bridge and the manner of erecting it. Part of the plan adopted consisted of
the use of caissons in the place of coffer-dams, which caissons on account of
the strong currents in the river proved impracticable and had to be aban-
doned, so that the work done in attempting to use them was wholly lost, and
the foundations had to be built in a different manner, causing great delay
and extra expense. On the faith of tjie accuracy and sufficiency of the
plans adopted by the city for the purposes intended, and without any inde-
pendent inquiry on his part to ascertain whether or not the work could be
done in the manner specified, the contractor made proposals and entered
into a contract for the execution and completion of the work [bridge] accord-
ing to the plans and specifications. The city had issued an advertisement,
inviting bids for the work according to the specifications and plans, and had
referred to the engineer for further particulars, and by the terms of the
agreement the contractor was required to obey the direction of the engineer.
After the contractor had completed the works he sued the city to recover
for the extra expense and loss of time incurred in completing the works
according to the alterations rendered necessary by the insufficiency of the
plans and specifications, not on a quantum meruit, but on the ground of an
implied warranty by the city that the work could be executed in the man-
ner described in the original plans and specifications. It was held, and
affirmed on appeal in 1876, that the contractor could not sustain an action
for damages upon such a warranty ; that the contract did not contain any
express warranty to the effect that the plans and specifications were correct
and practicable, and that none could be implied from the act of the city in
advertising for bids and accepting the proposal, even if there was a want of
skill and care on the part of the city engineer. The lord chancellor in de-
livering the opinion argued that the contractor was as able to judge of the
practicability of the plans as was the city or its engineer, and that he should
have had them tested by his own engineer. The appellate court held that if
the contractor had any remedy under the circumstances it was upon aqnan-
turn meruit.^ The lower court expressed an opinion that the contractor
should have thrown up the contract when he found that the work was im-
practicable; that having gone on with the work under the altered conditions
and without any new agreement he was estopped at that late day from mak-
*ng a claim for extra compensation.'
* Thorn?) Mayor of London, 1 App. Cas. ^Tiiorn v Mayor of London, L. R. 9
!^yO[1876];Hooper«. Webb. 27 Minn. 485. Ex. 163 [1874].
§ 239.] CONTRACT STIPULATIONS. 219
The Albany Law Journal, in commenting upon the case at the time,
said: "The case is unique in its character, and will doubtless form a pre-
cedent, the general rule being that where alterations are ordered to be
made they are to be paid for as extras/' '
The case was distinguished from others in a later New York decision,"
on the ground that the contractor was by his contract bound absolutely and
unconditionally to complete the bridge for a certain sum and in a certain
time, and that having performed his contract he could not recover addi-
tional compensation on the theory that the city warranted the sufficiency
of the plans.
The case is an important one and is quoted in the books. It should not
be cited as authority for the statement that the contractor is responsible for
the sufficiency of the plans he is using, or that the owner or architect is
not responsible for the plans that they furnish. It is authority only for
the statement that the owner by inviting proposals to do certain work
according to certain plans and specifications does not warrant that the
plans are correct or practicable, and in the light of other decisions it must
be regarded as somewhat doubtful authority of that proposition.
239. Failure of Structure after Completion Due to Insufficient Plans. —
In Wisconsin a different rule has been held. A state board of commis-
sioners, under the authority of an act of legislature, had procured and adopted
plansiand specifications, and entered into a contract with contractors who
were to furnish all the materials, and do all the work according to plans
and specifications, and under the direction and to the entire satisfaction
of the architect. The architect was authorized to vary from such plans,
the value of such alterations to be added or deducted from the contract
price, and any doubt as to the quality of the materials or workmanship or
as to allowances for extras was to be determined and adjusted solely by the
architect. Under this contract it was held that the state warranted the
plans to be efficient and suitable, and that when a contractor had in good
faith, according to the plans and specifications and under the direction of
the architect, erected a large portion of the structure, and the materials
and work had been accepted, it fell owing to defects and insufficiency of
the plans, the state was liable to the contractor for the expense of restoring
the portion of the structure which collapsed.'
It has been frequently held that if the contractor has built in strict
accordance with the plans and specifications furnished by the owner and in
' Citins: Aiken v. BHod. 12 Ala. 221 ; Havcook. 25 Pa St. 382 ; and Scrivner v.
Dubois V D & H C. Co.," 4 Wend. 285 ; Pask, 18 C. B. (N. S.) 785.
Hayward v. Leonard, 7 Pick. 181 : Whee- * Bvron v. Mayor, 54 N Y. Super. Ct.
«»en V. Fiske, 50 K H 125 ; and scp. also 411 [1887].
Marsh v. Richards. 29 Mo. 90 ; De Boom ^ Bentley «. State (Wis.), 41 N. W. Rep.
<». Priestlv, 1 Col 206; Mr-Clelland v. 338 [1889"!, 73 Wis. 416; and see United
Linder. iS 111., 58; McCormick v. Con- States r. Beban, 110 U S. 388 [1884]; hut
noUv, 2 Bay. 401 ; and see Sharpe v. San see Hooper v. Webb, 27 Minn. 485.
Paulo R. Co., L. R. 8 Ch. 597; Wade v.
220 ENQINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 240.
a workmanlike manner he is not liable for the failure of the structure by
reason of defective plans/ or that the machine would not work when built.*
It was so held when the walls of a building settled and cracked because the
footing-stones were too small, the fault being with the specifications and
plans and chargeable to the architect/ Defective specifications furnished
by owner^s engineer have been held to excuse delay on the part of con-
tractor which delay was occasioned by such defects." Likewise when an
arch fell because it would not sustain the load imposed upon it, the contractor
being bound to follow strictly the specifications and plans, which were so
defective that it was impossible to construct a stable arch in accordance with
them, the court held that by the terms of his contract he was not bound to
build a safe and stable arch notwithstanding the defects in the plans and
specifications ; that it was enough to exonerate him from blame if the con-
tractor showed that the plans and specifications which he was compelled to
follow were defective in themselves ; ^ that there was no covenant or warranty
by the contractor that the arch when completed should be safe and fit for the
purposes for which it was intended.' In this case the contractor was pre-
vented from completing the structure by an act of the city, one of the
parties, and the contractor was allowed to recover for only what he had
actually done up to the time he was required to quit/
In these cases it is well to consider the difficulty of proving that the
failure of a structure is due entirely to inherent defects in the plans and
specifications, and the greater difficulty of determining in many cases
whether a failure is due to neglect on the part of the contractor or to
defective plans. The English court in deciding that the owner does not
warrant the sufficiency of the plans seems to have foreseen the opportunity
that it would afford contractors to escape the consequences of unskillful
work and inferior materials by pleading that the plans were defective
and it was not therefore their fault. The court said : " If it is held that
there is an implied warranty that the work can be done according to the
plans and specifications the consequences would be most alarming. The
consequences would go to every person who having employed an architect
to prepare plans for a house afterwards enters into a contract to have it
built according to those plans, and they might arise in any case in which
work is invited to be done according to plans and specifications." '
240. Contracts for Completed Structures Distinguished from Agree-
ments for Work and Materials.— The American courts have distinguished
'Beswick «. Piatt (Pa.), 21 Atl. Rep. ^Malone^ Wood (Pa.). 18 Atl. Rep. 984.
306 rt89t] " Byron «. The Mayor, 54 JN. Y. Super.
2 Curwen x. Quill (Mass.), 43 N. E. Rep. Ct. 4il [1887]
203 * Byron n. The Mayor, supra.
3 McLeofl V. Genius (Neb.). 47 N. W. ' Byron «. The Mayor, supra.
Rep 47^ [1890]- se- also Drew v Al- « Lord Chanrellor in 1 horn v. Mayor
toona, 121 Pa. St. 414; hut s-e School London, ,m/)m. p. 218.
Trustees v. Bennett, 3 Dutch. 515.
I
§ 241.] CONTRACT STIPULATIONS. 221
those cases in which the contractor is merely to build according to certain
plans and specifications from those cases in which he is not only to build
according to the plans and specifications, but is also to completely finish
and deliver up a structure, ready for use as it were/ So where a building
was to be built according to very detailed plans and specifications, and
owing to the latent condition of the soil the foundations sunk, the court
held that a stipulation in the contract by which the contractor undertook
"to completely finish and fit for use and occupation" the buildings was
a covenant by which he was bound."
To the same effect is a recent case in which the contractor was to con-
struct a well for a certain sum, according to specifications which called for
the use in the work of a curb of a certai!^ shape, to be made of timber and ^
planking of a prescribed size and quantity. It was held that the contractor
could not recover, in addition to the contract price, compensation for work
and materials lost by the caving in of the well before completion, notwith-
standing it was due to the inadequacy of the curb prescribed in the speci-
fications."
It is fairly well settled that when a contractor has undertaken to con-
struct works in accordance with plans and specifications furnished by the
owner, and he has faithfully executed the work according to such plans and
specifications, and in a skillful and workmanlike manner, he is not liable if
it fall, fail, or proves worthless.*
241. Contractor will be Held to His Guaranty of Sufficiency of Plans
and Specifications — If the contractor is to build a structure or make a
machine from plans and models furnished by the owner, and, after exam-
ining the plans and models he guarantees that the structure will answer its
purpose or that the machine will work, he will not be relieved from his
liability on the guaranty because the plans furnished him were defective,
for he should have ascertained that fact before making the contract.' But
a contract to erect a blast-furnace, and that all the work shall be " done in
good and workmanlike manner, and of suitable material, and each part shall
be adequate in design, strength, and capacity, and workmanship for the
purposes intended, the work to be examined by the owner's superintend-
ent bi-weekly, and finally accepted if to his satisfaction," was held not a
» Byron v. Mayor, 54 N. Y. Super. Ct. 393 ; Schwartz v. Saunde'S, 46 111. 18 ;
411 [1887]. . Clark v. Pope, 70 111. 128; Loimd^berry
2 Dermott v. Jones, 3 Wall, 1 ; see also v. Eastwick, 3 Phila (Pa.) 371 ; Wade
School Trustees v. Bennett, 3 Butcher, v. Haycock. 25 Pa. St. 382 ; Graves v.
515; and see Daegling d. Schwartz, 80 Cnruthers, Meigs (Tenu.) 58; Beswick v.
111. 320. Piatt, 140 Pa. St. 28; Dargling v. Gil-
^Leavitt i>. Dover(N. H.), 32 Atl. Rep. more, 49 111. 248; Rohrmau v. Steese.
156. 9 Phila. 185 owner interfered and caused
^ Byron v. Mayor, 54 N. Y. Super Ct. defects. Oother eases cited supra et infra.
411 ; Burke v. Dunbar, 128 Mass. 499 ; ^ Giles v. San Antonio F. Co. (Tex.), 34
MacRiichie d. Lake View, 30 111. App. S. W. Rep. 546.
222 ENGINEERING AND ARGHITEGTURAL JURISPRUDENGE. [§ 242.
guaranty that the plant as a wJiole should be adequate in design, strength,
capacity, and workmanship for the purpose intended.
Under a contract with a city to construct a newly-designed apparatus
for filtering water, to stand certain tests, the risk that the apparatus will
stand the tests and demands made upon it is upon the contractor.''
A guarantee clause is not to be construed so as to make a contractor
liable for the failure of work to remain in good repair when the plan or de-
sign was defective, and the work was done in certain respects according to
the express directions of the supervising engineer/
242. Contract to do Work according to Plans and Specifications Implies
an Understanding of Them. — A contract to erect a structure after certain
plans and specifications implies an understanding of them on the part of
the contractor; and the law will not allow him to escape liability on the
ground that he exercised ordinary care and skill to understand and carry
them out, but that Ire failed to comprehend them.* He should apply to
the engineer or architect to explain the plans and for necessary directions
with regard thereto, for if he relies upon his own judgment and makes a
mistake he must bear the consequences. Therefore when contractors de-
parted from the working plans, which are a part of their contract, without
the consent of the owner, or of his engineer or architect properly author-
ized, they become guarantors of the strength and safety of the structure,
for an express contract admits of no departure from its terms unless by
consent of the parties.' If, however, material deviations from the plans
are made with consent of the owner, the contractor is under no responsi-
bility for its subsequent destruction, whether caused by its own inherent
weakness, due to the mode of construction, or from the violence of storms.
The structure in this case had been occupied, and to all appearances ac-
cepted, until it was blown down."
A contract to complete unfinished work according to the plans and speci-
fications adopted under a prior contract with another contractor does not
put the second contractor in the shoes of the former. He is neither respon-
sible for the sufficiency of the plans nor for the work done before he took
the job.^ Likewise a contract to finish a house does not bind the builder to
remedy defects in its foundations.* A post contractor under a clause of his
contract that as the building progresses he will protect the finished work
from injury, is not obliged to protect the work done by the first contractor
' Sheffield & B. C. I. & Ry. Co. v. Gor- man v. Bates, 15 Neb. 18; Smith v. Bris-
don, 14 Sup. Ct. Rep. 343. tol, 33 Iowa 24.
2 Sbo<'nberger v. City of Elgin (111. Sup.) » Clark v. Pope et al., 70 111. 129 [1873];
45 N. E. Rep. 434, affirming 59 111. App. and see Ellis v. Hamlen, 3 Taunt. 52.
384. • Clark v. Pope, supra.
3 MaoRitchie v. Lake View, 30 111. App. ' Philadelphia Hyd. Wks. v. Schenck, 80
393; <xn<i see MacKnight F. Stone Co. v. Pa. St. 334 [1876].
New York (Sup ), 43 N. Y. Supp. 139. « Banks i). Moors, 120 Mass. 459; accord,
*See Waul v. Hardie, 17 Tex. 553; Sher- Seymour v. Long Dock Co.. 5 C. E. Gr.
(N. J.) 396.
§ 244.] CONTUACT STIPULATIONS. 223
from injury from frost between the time the contract was made and when
the architect permitted him to commence ihe work/
243. Insufficiency of Plans— Liability to Third Parties Injured.— If de-
fective plans and specifications have been adopted by the owner and injury
to adjoining property-owners or to strangers results by their use, and not
in consequence of poor materials or workmanship furnished by the con-
tractor, the owner is liable for the injuries resulting.^ It was so held when
specifications required that a new building should be anchored to an old one
and that a girder should rest upon the same party wall, which fell in con-
sequence of the extra loading.' The court held that there was a duty im-
posed upon the owner to exercise all reasonable care and caution in pro-
viding suitable plans and specifications.* The contractor has been held not
to be liable to third persons for injuries caused by the falling of a structure
by reason of defective plans furnished by owner's architect unless he had
knowledge that the plans were defective or insufficient, and the structure
therefore unsafe.^ The architect, however, is liable to his employer for
damages sustained from defects in the architect's plans, and he may have a
oounter-claim against the architect when sued for the plans and services as
superintendent.' *
244. Injuries Resulting- from Negligence of Both Parties. — If injury
result from the negligence of the contractor as well as from the use of de-
fective plans, both the owner and contractor are liable, and it seems that
prosecuting the work under the direction and control of an architect is equiv-
iilent to working according to specifications adopted.'' f If it is impossible
to determine what proportion each contributed to the injury, either party
is, it seems, responsible for the whole of the damage resulting, and this was
so held although the act of one alone might not have caused the entire
injury, and even though without fault on his part the same damages would
have resulted from the act of the other.® If the plans and specifications are
in themselves sufficient to secure a safe construction, but the work is in-
sufficiently done by independent contractors, then the latter are liable.' If
1 Preston v. Syracuse, 92 Hun 301. hut see De Baker v. Southern Cal. Ry. Co.
5 Boswell v. Laird, 8 Cal. 469 [1858]. (Cal.), 39 Pac. Rep. 610; Lottman u. Bar-
3 Lancaster tj. Conn. Mut. L. Ins. Co., 93 nett, 62 Mo. 159 Wegner v. Penn'a Ry.
Ho. 460; 8. c, 5 8. W. Rep. 23 [1887]; Co., 55 Pa. St. 460.
Wilkinson v. Detroit Steel & Sprg. Wks., ' «Niver t). Nash (Wash.), 35 Pac. Rep.
78 Mieh. 405; Giles v. Diamond State Iron 380.
Co. (Del.), 8 Atl. Ren 368 [1887]; and see ' Camp t). Church Wardens, 7 La. Ann.
Lockwo >d V. New York, 2 Hilt. (N. Y.) 322; see also Faren v. Sellers (La.), 3 So.
66; Corbin ^. American Mills Co.. 27 Rep 363 [18881.
Conn. 274: Brown «. Aerington Cotton » Slater v. Mercereau. 64 N. Y. 138
•Co.. 3 H. & C. 511: Goldschmid v. New [1876]; Newman v. Fowler, 8 Vr. (N. J) 89.
York (Sup.'. 43 N. Y. Siinp. 447. ^ Lancaster v. Conn. Mut. Life Ins. Co.
* a^7^n5'a^50 Horner ». Nicholson, 56 Mo. (Mo.), 36 Alb. L. J. VS; see Ryder v,
■220: Morj^an v. Bowman, 22 Mo 538. Kinsey (Minn.), 64 N. W. Rep. 94. veneer
* Daegling v. Gilmore, 49 111. 248 [1868]; wall not anchored to main walL
Lockwood «. New York, 2 Hilt (N. Y.) 66;
*See Sees. 839-842, infra. \See Sec. 641, infra.
224 ENGINEERING AND ARCHITECT UHAL JURISPRUDENCE. [§ 245.
the owner has employed competent architects and superintendents to erect
a structure, he is not liable to a workman for injuries from an accident
during its erection if the accident is not due to inherent weakness of tha
materials furnished/ or to violation of building laws with knowledge thereof.*
245. Liability of the State, County, or Municipal Corporations for the
Adoption of Insufficient Plans and Specifications. — The question of liability
to third persons for injuries resulting from defective plans is one that arises
most frequently in city administration. Sewers, drains, and culverts prove
inadequate, reservoirs burst, and bridges fail, and not infrequently because
the size or capacity is too small or the plan is defective.
Of public organizations, such as cities," towns, counties,* and the state,.
the law requires that reasonable care, judgment, and skill shall be exercised
in the selection of a plan and in the construction of works according to that
plan.
246. Public Officers are Required to Secure the Services of Engineers and
Architects on Questions of Design and Construction.^It requires that the
council, selectmen, board of supervisors, or owner^ shall exercise reason-
able care in securing the services of skilled engineers and architects to pre-
pare plans and specifications for works, and that they shall use ordinary
care in seeing to it that such engineer or architect employs his skill in thfr
performance of the duties required of him.' It is negligence for such offi-
cers of a city to act upon their own judgment in matters that require the
knowledge and skill of an expert, no matter how much they deliberate; and
it has been held that such questions as the size of a sewer ^ or a culvert,® or
the strength of a bridge,' the plan of a sidewalk," and similar questions in
engineering and architecture, were questions that required the services of
an expert in those professions. When a skillful engineer has been selected,,
and he, acting in good faith, adopts a plan that proves insufficient for th&
purposes intended, then no negligence attaches to the city, town, or county,,
although there may have been an oversight or an error in judgment, and it.
is not liable for injuries that result."
'Walton V. BrynMawrH. Co. (Pa.), 28 'Terre Haute v. Hudnut (Ind.), 13 N.
Atl. Rep. 438; but see Campbell v. Luns- E. Rep. 686 [1887].
ford (Ala.), 3 So. Rep. 522 [1888], contra, ' Terre Haute «j. Hudnut, supra.
wh>re the owner was held liable for in- ^Van Pelt v. Dave port, supra; Los
juries resulting from the negligent per- Angeles C. A. Ass'n v. Los Angeles (Ca'.),
formauce of the work, although the work 73 Pac. Rep. 375.
was under the direction and supervision of ^Ferguson v. Davis Co., supra.
an architect. ^° Urquhart 'C. Ogdensburg, 91 N. Y. 67'
'''Pitcher V. Lennon (Sup.). 38 N. Y. [1883].
Supp. 1007; a?id see Bradfield v. Trustees, ^^ Terre Haute v. Hudnut, svpra; Van
80 Geo. 1. Pelt «. Davenport, 42 Iowa 308 [1875];.
'Terre Haute r. Hudnut, 13 N. E. Ferguson r>. D i vis Co., 57 To ' a 601 [1881];.
Rep. 686; Van Pelt v Davenport, 42 Iowa Diamond Match Co v. New Haven (Conn.).
808. 18 Atl. Rep. 409 [1888]; see also Mansfield
-* Ferguson v. Davis Co., 57 Iowa 601 C. & C. Co. v. McEnery, 91 Pa. St. 185-
[1881]. [1879]; H. & T. C. Ry. Co. v Fowler, 5ft.
^ Giles tJ. Diamond State Iron Co. (Del.), Tex. 452 [1882], and cases cited; manyr
8 Atl. Rep. 368 [1887]. cases collected 15 Amer. & Eng. Ency.
§ 247.] CONTRACT STIPULATIONS. 225
A city, town, or county must act through the agency of others, and to
hold it responsible for the consequences of the mistakes of a competent
employee after the honest exercise of his best judgment " would require it at
its peril to secure what is impossible, absolute perfection in its servants and
agents." * What is required of the city is that it shall not be negligent in the
exercise of reasonable care and skill in the exercise of its duties, and negli-
gence has been defined as the failure to exercise ordinary care. Ordinary
care requires that a person or persons who represent an organization should
not, unless proficient, undertake those things which require a special
knowledge and training. They cannot carelessly and negligently adopt an
insufficient plan of a structure and escape liability for damages resulting
from the insufficiency of such plan.'' To relieve the county, town, or city
from such liability it must employ a competent engineer to prepare a plan
of the works to be undertaken; and if he has recommended a plan as suf-
ficient for the purpose, and the authorities vested with the power of selec-
tion adopt the same plan under the belief that it is strong and safe for the
purposes for which it was designed, then they have exercised proper care and
skill with reference to the work, and the city, town, or county is not liable
for damages resulting from the use of the plan.^
247. Selection of Plans for Public Work Sometimes Held a Judicial Act.
■ — There are cases to the effect that the adoption and approval of the plan
of a public work is a judicial act for which the city is not responsible, and
that negligence is not to be predicated upon the plan itself." The bulk of
the authority is to the effect that it is negligence to adopt a plan of a public
improvement without taking competent professional advice with regard to
it.^ These latter decisions are based upon the ground that an undertaking
to exercise judgment without skill in a matter which require skill, is not a
mere error of judgment, but it is negligence,^ which is sound sense.
Law 1149; Mngarity v. Wilmington (Del), works is the exercise of judgment and dls-
5 Houston 530 [1879]. cretion which is not reviewable by a court,
^ Van Pelt v. Davenport, 43 Iowa 308. and that the city is not liable for damages
^ Ferguson v. Davis Co., 57 Iowa 601 arising from a defective plan adopted, but
[1881] only for damages resulting from negligent
^Ferguson v. Davis, supra; Diamond execution of work in compliance with such
Match Co. v. New Haven (Conn.), 13 Atl. plan. The construction and repair of pub-
Rep. 409 [1888]; De Baker v. Southern lie works are simply ministerial duties, for
Cal. Ily. Co. (Cal.), 39 Pac. Rep. 610; and the negligent or improper performance of
see Railroad Co. v. Halloran, 58 Tex, 46; 2 which the city is liable,
Thompson on Negligence 985, 1008; Pierce *15 Amer. & Eng. Ency. Law 1149.
on Railroads 370 and 379, citing numerous where many cases are cited. A surveyor
authorities in notes; Shearman & Redfield who is not a civil engineer is not compc-
oii Neir., §445. ten to recommend a plan for a culvert
^Toolan v Lansing. 37 Mich. 152, 38 Rochester W.L Co. v. Rochester, 3 N. Y,
Mich, 315; Urquhari v. Ogdensburg, 91 463 [1850]; ^>«^ see Mills ?;. Brooklyn, 32 N,
N. Y.. 67 [1883]; Collins v. Philadelphia, Y.499; a ?ic? Johnston ® Di«t. of Colum. (U.
93 Pa, St. 272; Detroit v. Beekman, 34 S Sup. Ct.), 22 Reptr. 1 [\^m\, tohich cases
Mich. 125 [1876]; Johnson v. Dist. of Col. criticise Rochester White Ld. Co. «. Roch-
(U. S. Sup, Ct.) 22 Reptr, 7 [1886]; Foster ester. 3 N, Y. 463.
V. St. Louis, 71 Mo. 157 [1879]. "Terre Haute v. Hudnut, 13 N. E. Rep.
These cas"s maintain th»t the elections
and adoption of a general plan or system of
226 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 248.
218. Liability of City, Town, County, or State for want of Care or Skill
of Public Officer. — The city, town, county, or state are not responsible for
the mistake or the want of care or skill of the city, town, or county sur-
veyor, " whether appointed and removable by it or elected by the people,
when he performs duties (though the performance thereof may be regu-
lated by ordinance) for or between individuals, as, for example, fixing the
boundary between their lots." ^ *
A city has been held liable for injuries caused by the fall of a bridge,
owing to the negligence and want of skill of the city engineer.'
249. Provision that Engineer Shall Have the Custody of Plans.
Clause: "It is hereby mutually agreed that until the contract shall
have been completely performed, the architect shall have the custody
of the plans, elevations, sections, specifications, and schedule of prices,
and of this contract, on behalf of all parties concerned ; and when the
contract shall have been performed he shall deliver the same to the
owner or company."
250. Provision that Specifications and Drawings Shall be Kept at
Works.
Clause: "The engineer or architect for the time being shall furnish
copies of the specifications and contract drawings for the use of the
contractor, and the detail drawings when provided by the architect shall
be kept on the works, where the contractor may copy or refer to them,
and they shall not be removed therefrom.
" Complete copies of the drawings and specifications, signed by the
architect, shall be furnished by him to the contractor for his own use,
and the same or copies thereof shall be kept constantly on the works
by the contractor, by which instructions can be given by the architect."
261. Provision that Contractor Shall Have Custody of Plans.
Clause: " The contractors shall preserve and keep all plans, drawings,
writings, papers, specifications, and documents which may have been
delivered to them, or for their use; and the engineer and his assistants
and the clerk of works shall have full access thereto, at all times, and
for all purposes, and the same shall be kept at or near the site of the
works, and the said contractor shall return said plans, drawings, etc.,
to the custody of the engineer at the time of the delivery up of the
works to the owner or city, and before they receive the installments
payable thereon.'^
The latter part of this stipulation is unsatisfactory to a contractor, as it
takes evidence away from contractor, unless he goes to the expense of
making copies of all plans and drawings. Nowadays specification and
plans are usually printed or duplicated by photographic processes, so that
contractor is provided with a copy which he is permitted to keep.
^ 2 Dillon's Munic. Corp'us. (3d ed ), § and Ree Sayler v. Harrisburg. 87 Pa. St. 216
978, and cases cited; Aldcorn v. Philadel- [1878]; 2 Dillon's Mimic. Corp'us (3d ed.),
phia, 44 Pa. Sf. 348 [I8fi3]; see also Mc- § 978 [1881]; Rochester W. Ld. Co v.
Carty^. Bauer. 3 Kans. 237 [1865]. Rochesier, 3 Comst. (K Y.) 463 [1850^
2 Dayton v. Pease, 4 Ohio St. 80 [1854]; Kobs v. Minneapolis, 22 Minn. 159 [1875
* See also Sees 36, 17.9, supra, and 850-859, m/ra.
01;
5J.
§ 2o6.] CONTRACT STIPULATIONS. 227
252. Property Rights in Plans as between Engineer or Architect and
Owner.*
253. Provision that Work Shall be Done in a "Workmanlike Manner. \
Clause: "The parties hereby further agree that all materials used
throughout the herein-described works shall be the best of their re-
spective kinds, and new and unused when put into the work ; and that
the whole shall be done throughout in the best, most workmanlike, and
substantial manner, and everything done and furnished necessary to
complete the work according to the particulars contained in or implied
by the specifications, plans, and bill of quantities herein referred to,
and according to such other additional drawings, explanations, and direc-
tions as the Engineer may give or approve."
254. Another Clause:
" The works under this contract, and every addition, alteration, or
deviation directed to be executed under this contract, or that may be
necessary or proper to the complete and perfect performance thereof,
shall be executed by the contractors in the best and most substantial
and workmanlike manner, with materials of the best and most approved
quality of their respective kinds, according to the specification, draw-
ings, and the bill of quantities herein referred to, or to such other addi-
tional particulars, explanations^ and drawings as may be given or
approved by the engineer, and to his full and entire satisfaction, accord-
ing to the instructions and directions from time to time given him."
255. Another Clause:
" Every part of the work shall be executed as directed by the specifi-
cations, in the most sound, workmanlike, and substantial manner, and
all materials used in the construction of the building shall be new and
the best of their respective kinds, except where otherwise distinctly
directed or allowed by the specifications."
256. An Undertaking to Construct a Piece of Works Is an Undertaking to
Do it Well and in a Workmanlike Manner. — These clauses are frequently
inserted in a construction contract, their purpose being to avoid any ques-
tion as to the quality of the work requii'ed by the terms of the contract, or
any claims on the part of the contractor that it was mutually understood
that the work and materials were to be of an inferior class. In the absence
of any express agreement as to the manner of constructing a thing the law
requires it to be made or built in a workmanlike manner with good mate-
rials, and that it shall be suitable for the purpose intended.*
If, however, the contractor follow the directions of the owner in making
for him an experimental article, from a pattern furnished, he cannot be
denied payment because the article is not as fit for the uses contemplated a&
the pattern furnished."
'Gill Man'fojCo. v. Hurd, 18 Fed. Rep. 136; Wade « Haycock, 25 Pa. St. 382;
673, [1883]; Lucas v. Goodwin, 3 Binsr. N. Smith & Nelson v. Bristol, 33 Iowa 24.
Gas. 737; Pearce v. Tucker, 3 F. & F. « Fish v. Chicago Stamping Co., 58 111.
* See Sec. 815. infra, in regard to ownership of plans, drawings, and desip:ns, jind
plans consigned to common carrier which were delayed or lost; and! Sees. 816-822, infra,
in regard to incorporeal property rights in original designs.
t See Sees. 340 and 835, infra.
228 ENQINEERINO AND ABCHITEGTURAL JURISPRUDENCE. [§ 257.
Any workman who contracts to do a piece of work thereby impliedly
warrants that he is reasonably skillful and will bring sufficient skill and
dexterity to its performance to complete it in a just and workmanlike man-
ner/ Anybody who undertakes to construct a piece of work impliedly
warrants that he is reasonably skillful in his profession, trade, or calling,
and that the materials he employs shall be suitable for the purposes for
which they are used.'' A builder may be held liable for the construction of
a chimney that is not capable of carrying off the smoke for which it was
designed.' The fact that the price to be paid is grossly inadequate does not
<;hange the rule,* nor does the fact that the owner has seen the work done
and has benefited thereby enable the contractor to recover the price agreed
upon.^
The rule does not seem to be applied so strictly when one contracts to
iurnish materials, for it has been held that where the owner had a chance,
l^efore making a purchase, to inspect the lumber bought, that there was no
implied warranty on plaintiff^s part that it was merchantable for the pur-
pose intended for it by defendant."*
A mechanic who undertakes to do a job in a workmanlike manner, as
^ell as any other mechanic could do, cannot recover for his labor if the
"thing when completed does not answer the end for which it was de-
signed. '
257. An Agreement to Perform Work in a Workmanlike Manner Must be
faithfully Executed or No Recovery Can be Had.— If a contractor has ex-
pressly agreed to execute a job [construction of box-cars] in a plain and
workmanlike manner, and to the satisfaction of the engineer, or in a manner
to be determined by the engineer, in order to recover for what he has done
he is bound to show by such person appointed by the parties for that pur-
pose, that so far as he has progressed he has executed the work in a plain
^nd workmanlike manner as required. "
In an action to recover the price of work and labor to be done in a faith-
ful and workmanlike manner, the owner may show that it was not so done
App. 663; City of Elgiu v. Shoenberger, ^T. B. Scott L. Co. v Hafuer-Lothniaii
59 111. App. 384. Mfg. Co. (Wis.), 65 N. W. Rep. 513; sem-
1 Leflore v. Justice, 9 Miss. 381 [1843]; hie Omaha C. C. & L. Co. v. Fay (Neb.).
«mWe Dale w. See, 51 K J. Law 378 [1889]; 55 N. W. Rep. 211; ancZ see W\^. Red
Someiby «. Tappan, 1 Wright (Ohio) 570 Brick Co. •». Hood (Minn.), 69 N. W. Rep.
[1834] ; Harmer v. Cornelius, 5 C. B. (K 1091; Collins v. Monev, 4 Miss. 11; Mc-
S.) 236 [1858]. Lane v. De Leyer, 56 N. Y. 619.
2 Springfield C. A. v. Smith, 32 111. 252 ' Leflore v. Justice, supra; Wade«. Hay-
[1868]: accord Joliiison v. Freeman (Pa.), cock, 25 Pa. St. 383; Springfield C. A. v.
2S Atl. Rep 780; Van Hovenburgh v. Smith, 32 111. 252 [1863]: I. B. & W. Rv.
Lindsey, 1 Alb. L. J. 122 Co v. Adamson, 114 Ind. 282 [1887]; Kel-
^Somerby v. Tappan, supra. A drain, log Bridge Co. ■». Hamilton, 110 U. S. 108;
Hattin 7;. Chase, 88 Me. 237; see also Ful- Florida R. Co. v. Smith, 21 Wall (U. S.)
ler r. Brown (N. H.). 34 Atl. Rep. 463. 255; and see Hunt «. Penna. R. Co., 51 Pa.
* Smith «. Bristol, 33 Iowa 24; Wiirams St. 475.
V. Keech, 4 Hill (N. Y.) 168. ^Ennis v. O'Connor (Md.), 3 H. & J.,
6 Siwith V, Bristol, supra. 163 [1810].
* See Sec. 277a, infra.
§ 267.] CONTRACT STIPULATIONS. 229
to reduce the amount of the contractor's recovery.' He is entitled to dam-»
^ges equal to the difference between the value of the structure as they wero
made and as they should have been made.'
If a person be employed with the understanding that the work is to be.
•done in a workmanlike manner and the work be not done so, the contract
may be terminated without regard to the intention of the contractor.* The
fact that the work is a fair average job for the class of structure will not
excuse the contractor from furnishing what he agreed to furnish.**
An agreement to erect a structure in a workmanlike manner has been
held to require that it be constructed so that when used by persons of ordi-
nary prudence in the usual manner, it would not be liable to destruction, as
^ furnace by fire.' It has been held wrong for a court to instruct a jury
that an undertaking to do a plain, substantial, and workmanlike job was not
an undertaking to do a perfect job, for the reason that it took from the jury
a question of fact which it was their province to determine and not that of
the court. It was further held that an agreement to do a thing in a plain,
substantial, and workmanlike manner would imply that it should be per-
fectly done for the character of the job contemplated, and that an imperfect
-execution of the work would not be a performance of the contract." Such
an implication cannot be overcome by a custom or usage which allows the
use of inferior materials and the unskillful execution of the work. It has
been held an error to give an instruction to a jury, that "if a man, in a
given section of country contracts to build a house in a workmanlike man-
ner, that means a house built in a workmanlike manner, construed accord-
ing to the customs and usages of the section of country in which the con-
tract is made,*^ for a custom that justifies the erection of a house with the
floors not level, the windows not vertical nor a*; equal heights from the floor,
intended to be on the same level, that bricks in the outer wall had to be re-
moved, and that one room had so many holes in the wall that daylight could
I)e seen through it in many places was unreasonable.'
When a contractor agrees to erect a building in a certain manner he
must comply with his agreements, and no plea of lack of skill of himself or
any of his workmen or subcontractors will constitute a defense for a failure to
^ Grant v. Button (N. Y. ). 14 John's Rep. (Cal.), 38 Pac. Rep. 635.
377 [1817]; Hellman v. Schneider, 75 111. * Uhliff v. Barnum (Neb.), 61 N. W.
422 [18741. Rep. 749.
2 Central Trust Co. -o. Arctic Ice Co. « Smith v. Clark. 58 Mo. 145 [1874],
(Md.). 26 Atl. Rep. 493; and see Wheaton When a petition alleges that work was lo
■». Lnnd (Minn.), 63 N. W. Rep. 251; and be of first-class workmanship and material.
Van Buskirk v. Murden, 22 111. 446; evidence that it was to be of the same kind
Grounsell v. Lamb, 1 M. & W. 352; Faros- as was furnished to anotlier company is in-
worth V Garrard, 1 Campb. 38; Trustees v. admissible. Madison i}. Danville Min Co.»
Bradfield, 30 Geo. 1. 2 Mo. App. Rep'r. 1234.
sFeinberg v. "Weiher (Com. PI ). 19 K 'Anderson v. Whittaker (Ala.), 11 So
y. Supp. 215. Rep. 919; but see Graham v. Trimmer, (I
* Gk)lden Gate Lumber Co. «. Sahrbacher Kan. 231.
* See Sees. 467-8 and 701, infra.
230 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE, [§ 26Q.
comply with the contract/ Incapacity of the contractor, arising from the
ignorance and dissipation of himself and his workmen to do the work properly
will justify the owner in terminating the contract.' Work to be paid for
when " completed and found to be in good working order '^ was held to
require more than that the work should be in good working order at the
moment of its completion.^ A contract to make a cellar "water-tight" is
not carried out where after the work is completed water leaks in and the
contractor puts under the floor an automatic instrument which, while at
work, keeps the cellar dry.*
Subcontractors are not liable to the owner in an action for negligent
and unskillful doing of their work by which the owner is injured.*
258. Provision that Work shall be Performed and Completed According
to the True Spirit, Meaning, and Intent of the Plans and Specifications.
Clause: "And the work shall be performed and completed accord-
ing to the true spirit, meaning, and intent thereof and to the full
satisfaction of the engineer or architect and to the satisfaction of the
owner."
The first part of this stipulation has been regarded as an express men-
tion of an incidental power, inserted from motives of extreme caution and
necessarily incident to the authority usually given to the engineer or archi-
tect to determine the proper construction and meaning of the plans and
specifications, or even of the contract itself, and that his determination
should be final and conclusive. Such an express provision has been
regarded as adding nothing to the force of a contract in that particular in
the presence of such stipulations.'*
259. Work to be Completed to the Satisfaction of the Owner. — The addi-
tion of the last stipulation, that the work shall " be to the satisfaction of
the owner," seems to be wholly unnecessary and without force. It has been
held to have no reference to the quality of the workmanship and materials;
that in the absence of fraud, mistake, or unfair dealing on the part of
the engineer or architect, that his acceptance of the work as satisfactory
binds the owner.' It has been regarded as mere surplusage, the archi-
tect being probably for this purpose the agent of the owner or the arbi-
trator between him and the contractor." Such a condition makes the
payment dependent upon the will and pleasure of the owner and is re-
pugnant to the debt itself. It will either destroy the debt or the condition
will be void." .
' Sh arman «. Bates. 15 Neb. 18; and see ^ Bissell v. Roden, 34 Mo. 63 [1863].
Pearce v. Tucker. 3 F. & F. 136. « Hudson ^. McCartney, 33 Wis. 331.
2 Rector v. McDermott (Ark.), 13 S. W. ' Tetz v. Biitterfield, 54 Wis. 243 [1882].
Rep. 334 [1890]. s gj^uders «. Hutchinson, 26 111. 633
8 Edison Elec Co. v. Can Pac. Nav. [18871.
Co. (Wash.). 36 Pac. Rep. 260. ^ But see Gray v. Central R. Co., 11
4 MacKnight F. Stone Co v. New York Hun (N. Y.) 70, contra.
(Sup.), 43 N. Y. Supp. 139.
*See Chaps. XII and XIII, Sees 335-417, infra.
§2.")9.] CONTRACT STIPULATIONS. 281
Such provisions are frequently inserted in construction contracts, and
they may either be declared void or construed to mean to the reasonable
satisfaction of the owner.* Whether the work has been done to his reason
able satisfaction would then become a question for the jury.*
' Langdell's Summary of Contracts 1005.
♦iSfee Chap. XII, Sees. 335-347, and Chap. XIII, Sees. 406-411, infra.
CHAPTEE X.
THE OWNERSHIP, DISPOSAL, INSPECTION, ACCEPTANCE, OR RE.TEC.
TION OP MATERIALS OF CONSTRUCTION.
PROVISIOi^S THAT CONTRACTOR SHALL REPLACE MATERIALS REJECTED;
THAT HE SHALL PROVIDE FACILITIES FOR WEIGHING, TESTING, AND IN-
SPECTING materials; that he shall furnish OFFICES, FOREMEN, AND
attendants; that he shall not assign or sublet work; that
LINES AND levels GIVEN BY ENGINEER SHALL BE PRESERVED; AND
DEFINING AND LIMITING HIS RIGHTS TO POSSESSION OF THE WORKS.
260. Provision that Contractor Shall Provide and Protect Materials and
Appliances.
Clause: "The contractor or builder shall, at his own proper cost and
charge, provide and protect all manner of materials and labor, and
everything of every sort which may be necessary for the proper execu-
tion of work included in this contract, according to the true intent and
meaning of the drawings and specifications, whether the same may or
may not be particularly described therein, provided the same are reason-
ably and obviously to be inferred therefrom.''*
261. Provision that Owner Shall Provide Materials.
Clause: "The said works shall be erected wholly with materials
provided for that purpose by the owner. The builder shall be account-
able for all materials which shall be delivered at the place where the
same are intended to be used, and he shall be charged with the respect-
- ive quantities and articles so delivered, and credited with so much
thereof as shall be actually used upon and about said buildings, to-
gether with a reasonable allowance for waste in using the same; and
in case there shall be any balance or deficiency in materials, then the
builder shall be accountable for and charged with all such balance or
deficiency, at and after the rates and prices respectively at which the
said materials were purchased.''
262. Ownership and Use of Old Materials — Provision that Materials
Shall Remain Property of Owner.
Clause: "The contractor shall reserve, set aside, pile up, and prop-
erly store for the use of the company or owner, free of cost, all bricks,
gravel, sand, surplus earth, or other materials found on the line about or
in the works, and not 'required for filling in or other purposes connected
therewith, and to remove and deposit the same where directed by the
engineer, within a distance not exceeding half a mile, and no materials
* See Sees 208-212, sujyi^a, and 671-680, infra.
232
§ 265.] CONTRACT STIPULATIONS. . 233
shall be otherwise disposed of, or carted off the works, without the
order in writing of the engineer, the same materials being and remain-
ing the property of the company or owner/'
263. Provision that Contractor may Take Materials at a Valuation.
Clause : " The contractor shall take down and remove all structures,
walls, trees, timber,
now upon the grounds to be occupied or required for the works, but
he shall use all such materials arising from the pulling down of the
old structures or works on the same grounds as shall be fit and proper
to be used therein, and as shall be approved by the engineer or archi-
tect [for the time being] ; and all such old materials shall be charged
to said builder, and shall be paid for by him at a valuation to be made
by said engineer or architect [or at a fair valuation to be ascertained in
the usual manner]."
264. Provision that Materials Shall Become the Property of Con-
tractor.
Clause : " It is also agreed and understood that the whole of the mate-
rials which at present form a portion of the old structure of the
and of the temporary , so far as concerns those portions
which are the property of the corporation or owner, and which are
herein described as being removed, shall at the time stated for their
removal become the property of the contractor, and he shall, immediately
after their demolition, remove them from the site of the contract works,
unless otherwise ordered by the engineer."
265. Property in Materials is Determined by the Intention of the Parties.
— There is a popular belief among contractors and builders that when they
have undertaken works by contract which require the razing, demolition,
and removal of old structures, or the removal of materials from the ground,
or old ruins, that those structures or materials belong to the contractor or
builder. The source of this belief is probably that it is to their interests
and profit to make such claim, and their chief argument is that nothing
being said or agreed to the contrary, it will be taken for granted that tho
contractor was to have the materials. The ownership of materials under
such a contract is one of intention, to be gathered from the contract as a
whole, and from the customs and usages in vogue in the locality. It has
been held that a contract to excavate for the erection of a building does not
imply a transfer to the contractor of the title to materials of value removed
in the performance of the contract.*
If nothing whatever is contained in the contract as to the old structures
standing on the land, and no reference is made therein to the materials of
such structures, there is some authority that they become the property of
the contractor when he has removed them;'' but it must be a matter of inten-
tion gathered from the contract, and the circumstances and conduct of the
1 Jones «. Wick (Ccm. PI. N. Y.), SON. ^jyjorgan i,, Stevens, 6 Abb. K Cas. (N".
Y. Supp. 924; but see Cooper v. Kane, 19 Y.) 356.
Wend. (N. Y.) 386.
234 ENOINEERINO AND ABGEITEGTURAL JURISPRUDENCE. [§ 266.
parties. The property in old materials has been held not to pass to a ten-
ant who has made alterations in the building he occupies.'
To remove any doubts as to the intention of the parties it is good prac-
tice to insert in the contract saving clauses similar to those which precede.
Such a stipulation enables a contractor to estimate the value of the materials
which the job will certainly supply, and if by the contract he be permitted
to use them in the new structure he can reduce his price for the work by so
much as they are reasonably worth. ^
266. Ownership of Materials in Public Way. — In connection with work
upon streets and public ways the question frequently arises as to who owns
the materials of the street or way, and what disposition may be made of
them as regards their use, sale, and appropriation. When the fee of a
street is in the abutting owners, the public have only a right of way over it,
with the powers and privileges incident to that right. The owner of the
fee retains for all purposes, not interfering with that right of way, his
exclusive right in all mines, quarries, springs of water, timber, and earth for
all purposes. Every case must turn upon what is incident to the construc-
tion and maintenance of the right of way." The value of stone taken from
the limits of a highway has been recovered; * and a city that contracted for
and authorized the quarrying and disposal of stone from a ledge in a street
and below the grade thereof, for unauthorized purposes, has been held liable
to the owner of the soil for the value of the stone as it lay in the ledge.*
As before stated, the purposes authorized are those incident to the con-
struction, maintenance, and proper use of a public street. It has, therefore,
been held that the authorities of a city or town can take [remove] the earth
and soil of a road so far as its removal is necessary to the proper construc-
tion and repair of the street.' A village incorporated by act of legislature
with powers to keep all its streets and alleys in repair, and make such
ordinances in relation thereto as may be necessary and expedient, may
make ordinances imposing a penalty upon persons removing soil from its
streets. Owners of the fee of streets were held to have no right to remove,
or to authorize the removal, of gravel or dirt contrary to such an ordinance,
without being liable to the penalty/ When it was necessary to excavate
gravel in order to bring the street down to grade it has been held that the
■gravel might be removed to other parts of the street or road to fill up to grade f
but only as the process of construction and repair of the street required."
' Agate V. Lowenbeim, 57 N. Y. 604. 428 [1887].
2 >See Bonnett ^. GlattfeMt, 130 111. 168. 'Palatine «. Krueger (111.), 12 N. E.
3 Jackson v. Hathaway, 15 Jolin=i. 452; Rep. 75 [18871 : reversing Kiiiger v. Town
9 Am. & Eng. Ency. Law 375; and see 3 of Palestine, 20 Brndw. 420 [1885]
So. Rep. 23 [1888]. » Niagara Falls Susp. Edge. v. Bacbman,
*Higu;ins'». Reynolds. 31 N. Y. 156. 4 Lansing 423 ; nud fee Anderson v. Be-
* Valiski r. City of Minneapolis (Minn ), ment (Ind.V 41 N. E Rep. 547; accord,
41 N. W. Rep. 1050 [1889] ; and «ee Becker Bundv v. Catto, 61 111. At p. 209.
^). Philadelphia (Pa.), 16 Atl. Rep. 625. ^Rich v. City of Minneapolis, 37 Alb.
• Robert v. Sadler (N. Y.), ION. E. Rep. Law Jour. 58.
§266] CONTRACT 8TJPULAT10NS. 235
The Minnesota courts have held that a city may authorize the excavation
and removal of stone and earth when it is necessary to the use and improve-
ment of the street, unembarrassed by claims of abutting owners, and that
the city may dispose of the materials which they are required to remove
without having to account to the owner. That the city could authorize the
excavation of rock necessary to the construction of a sewer, and could allow
the contractor to appropriate such stone in part compensation for his work,
without accounting to the abutting owner/ The Minnesota cases do not
represent the universal law. There are cases directly contrary, which hold
that stone, excavated by a contractor in the construction of a sewer cannot
be used by him, nor can the city have credit against the contractor for the
8tone removed, for they belong to the abutting owner."
In the Minnesota case, which held that the city might authorize the
removal and disposal of materials necessary to the use and improvement of
a street,^ there is little doubt but that the abutting owners could have stepped
forth and appropriated the stone as fast as it was blasted, and that they could
have it piled upon their own lots and could have defied the city authorities
and contractors to molest them.* Of course the abutters cannot prevent the
town or city from improving the streets, but when materials are to be
removed, given away, or sold, it is the abutter's privilege to take what right-
fully belongs to him. If he neglects to do so he should not complain that
the city has employed them for use upon its streets. It has been held that
the owner of the fee in a highway may take away sand from within its limits
if it does not injure the right of way and travel.^
It is well settled that publjc streets and ways cannot be lawfully appro-
priated or given away for private uses,^ nor can the materials composing
them.' The city or town cannot authorize the contractor to excavate the
entire width of the street and take the stone in compensation for his work,
even if he did refill the space excavated, to the original grade. ^ The act of
digging materials, as gravel, from the bed of the highway below grade for use
on the surface, with the intention of filling up the pit so excavated with
other and less valuable materials, is in violation of the abutter's rights, for
which he may maintain an action against the contractor.'
The unrestricted meaning of the word " street " has been held to include
the sidewalks.^"
1 Valiski v. City of Minneapolis (Minn.), City of New Haven v. Sargent, 38 Conn.
41 N. W. Rep. 1050 ; hut seemdh v. City 50; Bissell v. Collins, 28 Mich. 277.
of Minneapolis, " 37 Alb. Law Jour. 58 * Chicago General Ry. Co. v. Chicago
[1887], and cases cited. City Ry. Co., 62 111. App. 502.
* Fisher v. City of R,, 6 Lansing 225. ' Varnum v. Highgate (Vt.), 26 Atl. Rep.
3 Accord Bundy v. Catto, 61 111. App. 028.
209. ^ Valiski v. City of Minneapolis (Minn.),
* Kruger v. Town of Palestine, 20 Brad- 41 N. W. Rep. 1050.
well 420 [1885]. 'Robert v. Sadler (N. Y.). 10 N". E.
5 Williams v. Kenney, 14 Barb. 631; see Rep. 428 [1887]; accord 24: Mich. 51.4.
41^9 Denniston v. Clark, 125 Mass. 216; ^^ Wiles «;. Hoss, 114 Ind. 371 [1887J.
236 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 267.
267. Title to Materials and Plant Delivered upon the Works. — Pro-
vision that work and materials shall become property of owner :
Clause: " From the commencement to the completion of every part of
the works, the same, and all materials and things upon or near the prem-
ises, whether placed on and incorporated into the works or not, shall be
deemed to be, and shall become the property, of the said owner; but he
shall not be responsible, charged, nor chargeable for anything lost, stolen,
damaged, destroyed, or removed from the building, or that shall fail in
any way whatever; and the care of the same, and everything connected
therewith or appertaining thereto, shall be with the contractor[s], who
shall protect and preserve, entire and uninjured, the vyhole of the said
works and materials; and if any injury or disfigurement shall be done
thereto by fire, or by the inclemency of the weather, or by accident of any
description, or by the workmen employed, or by any other means whatso-
ever, then, and in every such case, the builders shall completely repair or
replace the same, as the case may be, at their own cost, so that on the
completion of t-ie works every part thereof may be perfect and in a
clean state.^'
268. Provision that Plant shall Be Property of Owner during Progress of
Works.
Clause: " The plant, tools, machinery, and materials provided by the
contractors shall, in all cases, from the time at which they or any of
them may be brought upon the works and lands taken by or in behalf
of, or used permanently or temporarily by or in behalf of the owner or
company, and during the construction and until the completion of the
said works, become and continue the property of the company; and the
contractors are hereby prohibited from removing the same, or any part
thereof, during the progress of the works without the consent in writing
of the engineer." ' • ^
269. Provision that Materials Delivered upon Works shiL Attach to and
Belong to Premises.
Clause: "And it is further hereby expressly agreed that all materials
which shall be brought upon the premises by or for the said contractor
for the purpose of erecting the structures hereinbefore described and
the subject-matter of this contract shall be considered as immediately
attached to and belonging to the premices, and that no part thereof
shall be removed therefrom without the express consent of the owner,'*
etc.
270. Materials and Tools to Become Property of Owner, but the Con-
tractor Is to Be and Remain Responsible for their Safekeeping.
Clause : "All materials, scaffolding, tools, implements, machinery,
and effects whatsoever which may from time to time during the prog-
ress of the work be in, upon, or about the said premises shall be
deemed to be the absolute property of the owner; but the contractor
shall nevertheless be solely responsible for the loss or destruction
thereof, and for all damage which may happen thereto by fire, tempest,
* Is is better to have the clause in this pany when the contractor shall have failed
form, rather than to make the plant and or be in default. See Garrett v. Sailsbury
materials become the property of the com- Rail. Co., L. R. 2 Eq. 358.
§ 271.] CONTRACT STIPULATIONS. 237
or any other cause whatsoever, and the builder shall likewise be liable
to make good all damage which may happen to the said work from any
cause whatever during the progress thereof/'
271. Ownership of Materials and Tools when No Clause is Used.— When
the contract is one to furnish materials and to build and deliver a completed
structure, and it contains no such stipulations as are given, materials
brought upon the premises to be used in the construction of works by the
contractor remain the property of the contractor who has purchased them and
has had them delivered. Such materials are subject to the contractor's
debts, and should not be included in the engineer's estimate of what is due
to the contractor unless it is expressly provided that they are and shall be
the property of the owner or company/ Blinds that have been fitted to
the windows of a house and. then taken off to be painted have been held to
be the property of the contractor, and while in his hands were liable to
be taken for his debts.'* It is immaterial that the contract provides that
as the work goes on estimates of it shall be made by the engineer, which
estimates may, if he so decide, include acceptable materials delivered, and
that a per cent, of such estimates are to be paid at once and the residue
upon completion of the structure, and that such estimates had been made
and did include certain materials, and such percentage of their value had
been paid to the contractor, for it is insufficient to show a sale of the mate-
rials and to pass the title to them.'
When a contract for street-work provided for monthly payments, "on
estimates made by the engineer of materials furnished on the ground, and
work done, 20 per cent, being reserved until the final estimate is made," it
was held that the city was bound to pay, monthly, 80 per cent, of the value
of material furnished on the ground, and the work done, and that by
" material on the ground " was meant all such suitable material in reason-
able quantities as the contractor procured and placed in the city at a suitable
point, to be used as needed." * This decision, considered with those imme-
diately preceding, illustrate the necessity of clauses defining the intention
of the parties in regard to the ownership of materials delivered.
Until wrought into the structure the materials furnished remain the
property of the contractor or materialman, even though they have prior
thereto been inspected by the engineer and included in his monthly esti-
mates. It was so held of ties delivered upon the line of a railroad for the
track.'
» Citv of Wheeling v. Baer (W. Va.), 15 »City of Wheeling v. Baer (W. Va.). 15
S. E. Reo. 979; Chandler «. DeGraff, 22 S. E. Rep. 979.
Minn. 471 [18761; Johnson v. Hunt, 11 *City of Key West v. Baer (C. C. A.),
Wend. (N. Y.) 137. 66 Fed. Rep. 440. P.-irdee, circuit judge,
2 Manchester Mills v. Rundlett, 23 N. H. dissenting; Smith v. Molleson (Sup.), 26 N.
271; Tripp v. Armitage. 4 M. & W. 687; Y. Supp. 653.
Wilkins «. Bromhead, 6 M. & G. 963; £'a; * Chandler v. DeGraff, 22 Minn. 471
parte Marrable, 1 Glyn & J. 402, [1876]; see also Andrews v. Durant, 11 N.
*^fi Sec. 676, ^«/ra.
238 ENQINESRING AND ABGHITECTURAL JURISPRUDENCE. [§ 272.
A contrary rule was maintained in the English court of appeals, which
held that the title to materials delivered upon the line of a railroad for use in
its construction passed to the company when they were inspected and certified
by the engineer, even though they were not fixed, and that the contractor
could not remove them or otherwise dispose of them. The contract was for
the construction of a railroad, it being provided that, once a month, the com-
pany's engineer should certify the amount payable to the contractor in
respect to the value of the materials delivered, such certificates to be paid
seven days after their presentation/ The court made the test one of inten-
tion of the parties, and held that the manifest intention vf as, that the title to
materials should pass when the engineer certified to his acceptance thereof.
The materials delivered were bricks, iron girders, etc., for a structure.
The fundamental principle in all cases of sale is to ascertain the inten-
tion of the parties. That ascertained, it will hold, and rules are generally
held subordinate to it. The circumstances of each case must be determined.'
If the contractor act as the agent of the owner in the purchase of materials,
or if the materials are furnished ujion the credit of the building, the title to
them will be in the owner. If the stuff be furnished on the credit of the
owner, the contractor may be considered the agent of the owner, and such
materials cannot be sold under an execution as the property of the con-
tractor.'
272. If it be the Intention of the Parties to Pass Title upon Delivery, it
Will be So Held. — If the intention to have the title pass when the materials
are delivered be made clear and unmistakable, it should be so held.*
Therefore when a contract for the construction of a ship for the United
States government provided that the materials, when delivered and receipted
for, should become the property of the government, the court declared that
it would not enforce any arbitrary rule of construction in determining the
question whether the title remained in the builder, or whether the property,
in so much of her as on the payment of an installment is completed, passed
to the government, but that the court would carry into effect the intent of
the parties, to be gathered from the terms of the contract and the circum-
stances attending the transaction.^
When a contract provides that "all materials when brought upon the
ground for the erection of the structure, shall be considered as immediately
attaching to and belonging to the premises," the English courts have held
that it gives to the owner an equitable interest in the materials, by virtue
Y. 35; Tompkins v. Dudley, 25 N. Y. 272; Rep. 332; Ladd??. Grand Isle (Vt.), 31 Atl.
Adams v. Nichols, 19 Pick. 275; School Rep. 34. For other case-i of materials de-
Dist. V. Dauchy, 25 Conn. 530. livered on the line of a railroad see Hutch-
' Banbury & C. D. Ry. Co. -». Daniel, 54 inson v Gt T. R. Co., 59 K H. 487; also
L. J. (N. 8.) Ch. D. 265 [1884]. 71 K Y. 296, 11 Hun 597, 75 N. Y. 454.
2 Allis v. Voigt, 90 Mich. 125 ^Bij^ckburn on Sales 196.
» White ®. Miller, 18 Pa. St. 152; see •* Clarkson v. Stevens, 106 U. S. 505
also Steele v. McBurney (Iowa), 65 N. W. [1882].
§273.] " CONTRACT STIPULATIONS. 239
of which he could hold them agaiust an execution against the builder, and
that would disentitle the sheriff from seizing them.*
If the contract provide that a mill erected upon property shall be and
remain the sole property of the contractor until certain liens or encum-
brances are removed by the owner, the builder can remove the mill when the
lq,nd has been sold under an execution of judgment of such lien or
encumbrance."
273. English and American Decisions Compared. — By the English bill
of sale act, an agreement in an ordinary building contract that all building
materials brought by the builder upon the land of the owner shall become
liis property is not a bill .of sale.' The English courts do not regard with
iavor such agreements which operate against trustees, receivers, and judg-
ment creditors.* A clause providing Miat the contractor's materials shall be
forfeited to the owner on his becoming insolvent or bankrupt is void under
the English law, being contrary to the policy of the bankruptcy law.^
In England it has been held that a stipulation that if the contractor
becomes insolvent or fails in the due performance of his contract, the com-
pany may enter and use his plant and materials and construct the works on
their own account, does not, on such insolvency or failure, vest the plant
and materials in the company unless actual damages or loss has been occa-
sioned by the noncompletion of the works.' Under such a clause the com-
pany has been held to be entitled to retain what it has seized, the seizure
being a protected transaction within the bankruptcy act of 1869, § 94/ It
seems that the owner may stipulate for a lien upon the contractor's plant,
with a right to use the tools and materials in the completion of the work,
according to and in fulfillment of the contract.*
In America the property in a ship, during construction, follows the keel.
It has therefore been held that if an owner repair his vessel with the mate-
rials of another man, the property in the materials is in the owner; but if a
contractor builds the vessel from the keel with another's materials the whole
will belong to the owner of the materials.'
In the case of an executory contract to build a vessel, to be paid for in
installments as the work progresses, the title to the vessel remains in the
builder until the work is completed and delivered.'" If it has been expressly
^ Brown v. Bateman, L. R. 3 C. P. 272 ^ 3i\Y v. Harrison, L. R. 14 Ch. D. 19
[18671; Reeves v Barlow, 12 Q. B. Div. [1880]; Ex parte MixcKnj , 1, R. 8Cli. 643;
436; Blake v. Izard, 16 W. R. 108; and S'^e Ex parte Williams, L. R. 7 Ch. D. 138.
Emden's Law of Building Contracts 202-3, * Garrett v. Salisbury & D. Ry. Co., L.
giving the English law; and many cases in R. 2 Eq. 358.
29 Amer. & Eni?. Ency Law 950-955. ' In re Waugh, 4 Ch. Dv. 524.
^Yater «). Mullen, 24 Ind. 277; Gates ^ Hf^^tlioi-Qe o. Newcastle, etc., R. Co.»
Iron Wks. -o Cohen (Colo. App.), 43 Pac. 3 Q. B. 734, not" ; Garrett v. Salisbury,
Rep. 667: see aUo Ya.ug\\n v. McFadyen etc., Ry. Co., L. R. 2 Eq. 358; In ra
(Mich.), 68 N. W. Rep. 135. Winter, 8 Ch. D. 225; and see Hunt v. So.
3 Reeves v. Ba^ow, L. R. 12 Q. B. D. Eastern R. Co., 45 L. J. C. P. Div. 87.
436 [1884]; several cases cited and die- » Coursin's Appeal, 79 Pa. St. 220 [1876].
anguished. 'o Elliott v. Edwards, 35 N. J. Law 265
* Colly er v. Isaacs, L. R. 19 Ch. D. 342. [1871].
240 ENGINEERING AND AUGHITECTUBAL JURISPRUDENCE. [§ 274.
agreed between the builder and the employer that when an installment was
paid, the vessel so far as constructed was to become the property of the-
employer, then the burden is on the latter to show that his title vested
before the lien of creditors attached/
If, however, the contractor is to be paid for the " materials furnished,'^
he can demand payment not only for materials delivered and inspected apd
received, but also for such as he has procured or prepared to be furnished.'' ^
In the United States the operation of the lien laws in protecting mate-
rialmen and mechanics and securing to them their claims against contract-^
ors by attaching to the structure, has rendered the use of these clauses less-
frequent, as they are primarily to protect the owner against such claims;;
but when the works are extensive, requiring special plants or appliances, or
the materials are such as cannot be obtained in the open market, or money
is to be advanced as materials are delivered, inspected, and accepted, the-
clauses should be employed.
274. Provision that Contractors shall Remove Temporary Structures and
Dispose of Waste Materials.
Clause : " Upon the completion of the works the contractor further
agrees to remove all temporary structures; fill up all holes and trenches;
level all mounds or heaps of earth that may have been built, dug, raised
or made by him in the execution of the works or incident thereto, and
to remove and clear away all surplus or waste materials or rubbish of
whatever kinds remaining on, in, or round about the works, and to-
deposit such refuse materials at such places on or near the works as the
engineer may designate, or if so required to remove it entirely from the
premises of the owner to such proper place as the contractor may pro-
vide, and the engineer shall be sole judge of what is or is not waste
material or rubbish. The works and premises to be left and delivered
up to the owner in a clean, neat, tidy, and workmanlike manner, clear of
all rubbish and litter of whatever description.^^
275. Contractor Required to Dispose of Wast6 Materials. — The above
clause is an essential provision of every contract requiring temporary struct-
ures or making waste materials, and one that will save the owner or com-
pany considerable expense to clean up, after a job is finished. There can be
no question as to its propriety and construction or as to its legality and
effect. The clause will be found a valuable one in works of excavation,
grubbing, and removing of old structures. It prevents any misunderstand-
ings as to what is or is not refuse, or any question as to who is to pay for
the carting and final disposal of such rubbish as nobody wants about their
premises. In cities where such stuff may have to be hauled to great distances
this becomes an important item of expense.
In the absence of such a clause, the trouble that arises will perhaps be
^ Elliott D. Edwards, 35 N. J. L-iw 265 ^ Dickinson v. Gray (Ky). 8 S. W. Rep.
[1871 j. 876; and 9 S. W. Rep. 281 [1888].
* See Sec. 272, supra.
) 275.] CONTEACT STIPULATIONS, 241
best ilinstrat«d by a few cases. If the contract provide that the earth and
waste materia] shall be deposited " where ordered by tlie engineer," it becomes
the duty of the engineer to provide a convenient place, and if he fail to do
so, then the contractor is entitled to damages which he suffers in disposing
of them.*
When the contract simply provided that the materials dredged should "be
deposited inshoio, so as not to interfere with the work," it was held that it
was not the duty of the company or owner to provide such shore as a place
of disposal foi' dredged material, and that the contractor was not justified in
abandoning hi-? contract because the shore inspector prevented him from
depositing suc^ materials thereon.'
Under a contract to remove a large quantity of rock which lay on the
margin of a navigable stream, where to blast this rock into the stream was
much less expensive than to remove to a greater distanced, it was held that
the contractors could not obstruct navigation by blasting rock into the
stream, but that they were bound by their contract to remove the rock with-
out committing a nuisance.'
If the contract is silent as to where the contractor shall put the earth,
and the parties have themselves given a practical construction to it, they will
be bound by that interpretation.*
If a contractor deposits earth and rubbish upon an adjoining or abutting
lot, or in the street, the contractor, if he be an independent contractor, and
not a servant, is liable for the trespass, and not the city or owner.* In fact
the owner is not liable for any negligent or unlawful acts on or in
regard to adjoining estates by the contractor, when the work which the
contractor has been employed to do is not a nuisance, or the natural result
of such work will not be an injury to such estates.*
It is the duty of the contractor, as well as the city, to ascertain, before
entering upon a contract, the right of the city to rest its structures (as a
street embankment) on abutting premises without the consent of the owner.'
A village has been held liable for damage to abutting property by the deposit
of earth thereon in the construction of a sidewalk supported by a sloping
embankment.® *
> Phila. Wil. & Bal. R. Co. v. Sebre R. Co. v. Martin (Ala.), 14 So. Rep 401;
Howard, 18 How. Repts 307. City of Buffalo «. Clemeut, 19 N. Y. Supp.
» Cronin x. Teho (N. Y ), 39- N. E. Rep. 846 semhle Mairs v. Manuf. R. Est. Ass'n,
344. It should be stated that the owner 89 N. Y. 498 [1882].
promised and did subsequently provide a * Casesl4 Amer. AEnc^. Ency. Law, 840;
place inshore to dump in. S. C., 24 N. Y. Ketchum t. Newman (IST. Y. App.), 36 N.
Supp. 644. E. Rep. 197, shoring up a buildinLr on ad-
2 Tenn. & C. R. Co. v. Danforth (Ala.), joining estate; and see'&i. L & C. Ry Co,
13 So. Rep. 51. V. Drennan, 26 111. App. 263 [1887].
* Chicago K Gt. E. Ry. Co. v. Vos- '' Mathewson -». Grand Rapids (Mich.),
burgh, 45 111 311 [1867]. 50 N W. Rep. 651.
« Fuller v. City of Grand Rapids (Mich.), » Qarll v. Village of Northport (Sup.), 43
63 N. W. Rep 530; Kinser-w. Dewitt (Ind. N. Y. Supp. 576.
App.), 34 N. E. Rep. 1014; Alabama Mid.
* See Sec. 638, infra.
M2 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 276.
In England and Ireland the superintendent and the engineer who has
charge of work and directs it have been held liable for trespass committed
by the workmen in prosecuting the work.' *
A city is not liable to a sewer contractor for delay caused by the act of
the inspector of work and materials, appointed by it under the contract, in
rejecting materials which should have been accepted.' The contractor must
bear the expense of such delay.'
276. Provision for the Inspection and Rejection of Inferior Materials
and Work. ^
Clause: " The said part. . . .of the second part hereby agree. . . .that
all, rnaterials and workmanship, of whatever description, shall be sub-
ject to the inspection and rejection of the engineer, and that the
entire work shall be done to his satisfaction and approval. That the
engineer may appoint such assistants as he may deem necessary to
inspect the materials to be furnished and the work to be done under this
agreement, and to see that the same strictly correspond with the speci-
fications herein set forth, that any unfaithful or imperfect work or
materials that may be discovered before the final payment for the work
shall be corrected immediately, on the requisition of the engineer, not-
withstanding that it may have been overlooked by the proper inspector
and estimated, and it is hereby expressly agreed that the inspection
of the work shall not relieve the contractor[s] of any of his [their]
obligations to perform sound and reliable work as hereinafter [here-
inbefore] described and explained. '' \
In condemning or rejecting materials, work, or parts, the engineer must
fce specific in his charges, and in ordering certain parts to be replaced or
renewed he must describe those parts and their defects, so that the con-
tractor can remedy them. A notice to the contractor that certain parts of
machinery were "worthless and dangerous, not fit for use, liable to cause
damage, their construction in direct violation of the contract," without
other specification of the nature of the alleged defects, was held insufficient
to require the contractor to replace such parts of the machinery or to
clef eat his right to recover therefor.*
When the quality of materials are objected to and the contractor had
agreed with the owner that if it did not prove to be the quality contracted
for, he need not pay for it, and it proved inferior, the owner is entitled to
liave deducted from the contract price of the entire work the reasonable
value of the quality required by the specifications, and not merely the value
of the inferior materials actually used.*
An engineer should take pains to carefully inspect and test materials
' Wilson n. Peto, 6 Moore 47 ; Monks v. Rep. 136; and see'Roav^ v. O'Connor (Ind.),
Billon, 10 L. R. If. 849, 12 L. R. Ir. 331. 35 K E. Rep. 1006.
2 Montgomery « Citv of New York (N. * Gubbins v. Lautenschlager (C. C), 74
T. A pp.). 45 N. E. Rep. 550, affirming Fed. Rep. 160.
29 KY. Supp. 687. 'Wheaton v. Lund (Minn.), 63 N.. W.
3 White V. School District (Pa.), 28 Atl. Rep. 251.
* See Sec. 842, infra, t 'S^ Sec. 415, infra.
§ :277a.] CONTRACT STIPULATIONS. ' 243
before approving and accepting them, for it seems that when he has once
given his approval he cannot withdraw it.* *
The contractor should secure the engineer's or architect's approval
before using materials subject to his acceptance, or he uses them at his
peril." t
277. Provision that Condemned Materials shall be Removed and
Eeplaced.
Clause: "It is further agreed that if the work, or any part thereof, or
any materials, found or brought on the ground for use in the work, or
selected for the same, shall be condemned and rejected by the engineer
as unsuitable, defective, or not in conformity with the specifications,
the contractor shall forthwith remove such materials from the work,
and rebuild, or otherwise remedy, such work, as may be directed by the
engineer."
277a. Defective Materials Purchased and Used.— Contractors and owners
in purchasing materials, or in specifying them in a contract, should insist
that they shall be of a certain brand or of a quality described, and it is a
good practice to require a warranty that they shall be of the quality and
character specified. The manufacturer or materialman should also be
informed as to the purpose for which materials are wanted, and what is
required of them in the matter of tests and service. If these precautions
are not taken, no complaints can be made that the materials supplied by the
dealer or contractor are defective or do not meet the tests required.
When paving-stones are furnished according to dimensions set forth in
specifications, there is no implied warranty that they are suitable for a par-
ticular work if the supply man were not advised as to what such work
required.' This is true where the purchaser had a chance to inspect the
materials before making the purchase.* |
Likewise, when a contractor was to build abutments, and a certain kind
of stone was specified, and the stone agreed upon was used, and after the
completion of the work it was discovered to be defective, but it did not
appear whether the defect was owing to the quality of the stone or to the
poor workmanship, it was held that the plaintiffs were entitled to recover the
contract price, unless it was shown that the defect was in the workman-
ship.' The same was held when the sand to be used was designated." If
^ Jones V. Gilchrist (Tex.), 27 S. W. Rep. required siojie to be screened.
890 -* T. B. Scott L. Co. d. Hafne'-Lothman>
2'Hi^gins V. Lee, 16 111 495 [1855]. M. Co. (Wis.), 65 N. W. Rep. 513; Omaha
3Tnlbot Pav. Co. v. Gorman (Mic'i.\ 61 C. C. & L. Co. v. Fay (Neb.), 55 N. W.
N. W. R p. 655: American W. W. v. Rep. 211.
Rivers, 36 Fed. Rep. 880 [1888]: Brooks ^ Vanderwerker d. Vt. Central R. R. Co...
& F. Co. V. Patterson (Mich.), 63 N. W. 27 Vt.. 130.
Rep. 486; and see Steffen v. St. Louis « McLane «. De Leyer, 56 N. Y. 619.
(Mo.), 36 S. W. Rep. 31, wJiere the engineer
* See Sees. 888 and 390, infra. f See Sec. 414, end, infra.
X See Sec. 257 supra.
244 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§278.
the contractor has given the owner notice of the poor quality of the mate-
rials he is using, and the work is carried on under the eyes of the owner, he
cannot refuse to pay for the work, it seems, because the structure (a stone
wall in this case), is ao much affected by the weather as to. prove worthless.*
A contractor's right to recover the contract price was held not defeated
by the fact that the bricks purchased by him, in good faith, and used in the
building, were made of inferior clay, the defect not being discoverable by
careful inspection, nor until developed by exposure to the weather after the
building was completed.'
If, however, materials are not of a stipulated quality, the purchaser is not
confined to a rescission of the contract, and a recovery of the money paid for
freight and customs duties, and for storage, but may recover also damages
as for a breach of the contract.^
The manufacturer or supply man is liable to the purchaser only."
278. Provision that Condemned Materials and Work shall be Heplaced
by Contractor. If he Neglects or Refuses to Make them Good, Owner may
Repair and Charge to Contractor.
Clause: "It is further agreed that if any materials be brought upon
the works, or on the land or property of the company or owner, or to
the places where any operations have been or are being carried out in
connection with the works, or should there be any of the workmanship
which, in the judgment of the engineer or his assistants, or the
inspectors authorized by them, shall be of an inferior quality or descrip-
tion and improper to be used in the works, or are unfit for the several
purposes to which they are applied or intended to be applied, or are
not in accordance with the specifications or the said drawings, instruc-
tions, or directions, or this contract, respectively, the said materials shall
be removed and the workmanship amended forthwith, or within such
period or periods as the said engineers or inspectors may direct. If the
contractor neglect or refuse to comply with these conditions, any or
either the engineers or assistants, or other persons authorized by them,
on behalf of the company or owner, and by their agents, servants, and
workmen, may remove the materials and workmanship so objected to,
or any part thereof, and replace the same with sucli other materials
and workmanship as shall be satisfactory to him or them, and the com-
pany or owner may, on the certificate of the engineer, deduct the
expense thereby incurred, or to which he [it] may be put or be lia-
ble, or which may be incident thereto, from the amount of any money
which may be or may become due or owing to the contractor, or to
recover the same by action at law or otherwise from the contractor, as
he [it] may determine. And the contractor shall also forthwith pay
■ • to the board the sum of I per day for every day subsequent to
the period or periods above specified during which the materials or
J Collins V Money, 4 Miss. 11; and see Kerber, 61 111. 328.
Henderson B'da^e Co. v. O Connor. 11 S. ^T^y\ovv. Saxe (N. Y. App.), 31 N. E.
W. Rep 18 [I889J; Hggins v. Lee, 16 111. Rep. 258.
495 [1855]. 4 winterbottom ??. Wricht. 10 M. «fc W.
2 Wisconsin R P Brick Co. v. Hood 109; Losee v. Clute, 51 N. Y. 494.
<Miun.), 69 N. W. Rep. 1091; Badger v.
1 382.] CONTRACT STIPULATIONS. 246
workmanship, or any part of them, shall not have been removed, such
sum of $ a day to be deemed liquidated damages, and not a
penalty."
279. Provision that Contractor shall Provide Facilities for Inspection.
Clause: "It is further agreed that the contractor shall at all times
provide for the engineer and his authorized agents and assistants
convenient means of access to all parts of the work during its entire
progress, so that he shall have full liberty from time to time, and at all
times, to inspect, examine, and test the materials and workmanship fur-
nished ; and he shall be afforded every reasonable facility for ascertaining
that the stock and materials employed and the workmanship furnished
are in accordance with the requirements and intention of this contract
and specifications."*
280. Provision that Works shall be Pulled Down and Opened Up for
Examination and Inspection.
Clause: "If either the engineer or his assistant, or other author-
ized officer, shall require it for his more perfect satisfaction, the con-
tractor shall at any time during the continuance of this contract, pull
down or unship any part of the works, and make such openings, and to
such extent, through any part of the said works as the engineer or
officers may direct, and which the contractor shall make good again to
his satisfaction. If the works be found faulty in any respect the whole
of the expenses thereby incurred shall be defrayed by the contractor,
but if otherwise, by the company or owner."
281. Provision that Contractors shall Guard against Defective Founda-
1;ions and Unfavorable Conditions.
Clause: "It being agreed and understood that the same conditions
and damages above mentioned (Sec. 278) shall apply, in the event of the
contractor(s) refusing, at own expense, to pull down, amend, and
reconstruct any work may have erected upon an insecure or
insufficient foundation, or shall not have sufficiently secured and pro-
tected the same against immediate and future injury, whether arising
or to arise from weight, pressure, action of water, or otherwise, on
being required so to do, by either the engineer or his assistants."'^ *
282. Provision that Inspection and Approval of Engineer shall not Pre-
'Clude the Subsequent Rejection of Inferior Materials.
Clause: "It is distinctly understood and agreed that the inspection
and approval of materials by said engineer or inspector shall not in
any wise subject the company to pay for the said materials or any por-
tion thereof,*unless employed or used in the said work, nor shall the
same prevent the rejection afterwards of any portion thereof which
may turn out to be unsound or unfit to be used in the work; nor shall
such inspection be considered as any waiver or objection to the work
on account of the unsoundness or imperfection of the material used."
The subject of this stipulation is taken up and carefully considered in
succeeding sections, to which the reader is referred. f
' As to w' at facilities for inspection a [1888], and cases cited.
•coiitraotor is expected or required to fur- ^ See Clark's Architect, etc , Before the
nish, see Morris v. Brown, 111 N. Y. 318 Law 332-4.
* See Sees. 674, 678, infra. f See Sees. 381-388, 390-396, 461-468, 482-490, infra.
246 ENQINEEBINO AND ARGEITEGTURAL JURISPRUDENCE, [§ 283.
283. Provision against the Sale or Use of Ardent Spirits.
Clause: "And the said contractor or builder further promises and
agrees not to give or sell or allow to be given or sold by any age^t or
agents in his employ, any beer, liquors, or other ardent spirits, on or
near the works or line of works, or allow any to be brought or used
on the works by his employees or any other persons."
284. Provision that Contractor shall Provide and Maintain Suitable
Offices for Engineers.
Clause : " The contractor shall construct and provide, at or near th&
sites to be occupied by the contract works, and at his own entira
expense, proper working offices for the engineer and his staff, with all
requisite fittings, stores, firings, lighting, etc., so as to make them habit-
able for working purposes at all times and under all circumstances, th&
same offices to be fitted up as directed by and to the full approval of
the engineer. The contractor shall also provide proper attendancea
for such offices, which shall be always at the sole disposition and the-
entire use of the engineer, and shall be kept for that purpose through-
out the whole period that any of these contract works are under
execution.
" The contractor shall also provide the necessary laborers to attend the
same offices, and an approved boat, hand-car, inspection car, horse and
carriage, with qualified boatmen, sectionmen, operatives, or coachmen^
to be always in attendance on the engineer and his assistants, for
inspection, measuring, and levelling, and such other assistance as may^
from time to time be required."
285. Provision that Contractor shall Provide Closets and Lavatories.
Clause: "The contractor further undertakes and agrees to provide^
erect, and maintain, at or near the works, suitable and lawful out-
houses or closets for the use of his employees and workmen, and to pro-
vide a separate closet and lavatory for the use of the engineers, clerka
of works, and inspectors, which shall be provided with a door, lock, and
key, that it may be kept exclusively for their own separate use."
286. Provision that Contractors shall Make Tests, Borings, and
Soundings.
Clause: " The contractors shall, at their expense, sink such trial holes,
and dig such trenches as the engineer may consider necessary for
ascertaining the strata or nature of the ground, and the exact position
and levels of existing sewers, pipes, foundations, etc.
" Every part of the works and all the materials to be used therein
shall be subjected to such tests from time to time during the executioa
of the works as the engineer may direct, at the expense of the con-
tractor."
287. Provision that Contractor Shall Weigh and Test Materials, and
shall Provide Weighing and Testing Apparatus for that Purpose.
Clause: " The contractor shall weigh, without extra charge, any ma-
terials and parts and portions of iron work or other materials that the
engineer may require to be weighed, and he shall provide on the works-
approved testing and weighing machines for that purpose. On©
testing-machine shall be provided that will test iron or other speci-
mens up to tons tensile stress, and another capable," etc., etc.
§ 291.] CONTRACT STIPULATIONS. 247
288. Provision that Contractor shall Have and Keep a Foreman or
Representative on the Works^ who shall Receive and Obey Instructions of
Engineer.
Clause: "Whenever the contractor is not present on any part of the
work where it may be desired to give directions, — orders, or instructions
will be given by the engineer in charge, and shall be received and obeyed
by a competent superiuteudent or foreman who may have charge of
the particular work in reference to which the orders are given, and
such superintendent, agent, or foreman shall be considered as acting
in the contractor's place, and all orders or instructions given to such
agent or other persons by the said officer in charge shall be as binding
on the contractor as though given to himself in person/'
289. Provision that Contractor shall Not Assign nor Sublet Work.*
Clause: "The contractor shall not sublet any portion of the works,
but must construct and carry on the same with his own men and under
his own supervision. This clause, however, does not apply to the fur-
nishing of material for the different parts of the work, for which the
principal contractor will be held strictly responsible, and no excuse for
the quality of the material or for the non-delivery in good time by the
Bub-contractor as affecting the progress of the work will be enter-
tained."
290. Provision for Liquidated Damages to be Assessed for Assigning
or Subletting Work.
Clause: "The contractor shall not assign or make over this contract
to any other person, nor underlet it, nor make a sub-contract with any
workman or workmen for the execution of any part of the cast-iron,
wrought-iron, steel, or other metal work, timber, brickwork, ground-
work, masonry, or any other work appertaining to this contract, but
. shall employ his own workmen for the labor thereof, who shall be paid
by him in wages by the day. And in case the contractor assigns or
makes over this contract, or underlets or makes a sub-contract contrary
to this agreement, he shall, for each offense, pay to the board the sum
of $500, which shall be deemed liquidated and ascertained damages, and
may be recovered by action, or deducted by the board from any sum or
sums due or to become due to the contractor under this contract or
otherwise howsoever." f
291. Provision that Contractor shall Not Assign or Sublet Work, without
permission.
Clause: "The party of the second part agrees that he will give his
personal attention constantly to the faithful prosecution of the said
work; that he will not assign or sublet the aforesaid work, or any part
thereof, without the previous written consent of said engineer, owner,.
. or commissioner of public works indorsed on this agreement, but will
keep the same under his own control; that he will not assign, by power
of attorney or otherwise, any of the moneys payable under this agree-
ment, unless by and with the like consent signified in like manner; that
*If this clause is used, then the word "assigns" should not be used in clauses Sees.
4 and 207. supra.
\866 Sees. 13-16, Chap. I, supra.
248 ENGINEERING AND ARCHITECT [TRAL JURISPRUDENCE. [§ 292.
no riglit under tins contract, nor to any money to become due hereunder,
shall be asserted against the parties of the first part or against any de-
partment, bureau, officer, or officers of the company or city, by reason
of any so-called assignment, in law or equity, of this contract or any part
thereof, or of any money due or to grow due hereunder, unless such as-
signment shall be authorized by the written consent of the said officer
or commissioner indorsed hereon; that no person other than the party
signing this agreement as the party of the second part hereto now has
any claim hereunder; that no claim shall be made excepting under this
specified clause, or under paragraphs and of this agreement
by any person whomsoever, and that the said party of the second part
will punctually pay the workmen who shall be employed on the afore-
said work in cash current, not in what is denominated as ' store
pay/"*
292. Provision that Contractor shall Not Assign or Sublet.
Clause: "And it is further agreed by the said contractor or party of
the second part that he will give his personal attention and supervision to
the work; that he will not sublet any portion of the work or assign any
part of his contract without consent of said party of the first part."
293. Clause Forbidding Assignment or Subcontracting is Binding on As-
sign or and Assignee.f — An assignment of a construction contract in express
violation of such a provision, forbidding it, is void, and a party claiming under
euch an assignment is entitled to no relief in equity.* If the contract pro-
vide that no part of it shall be assigned without the express consent, in
writing, of the owner or engineer, then no interest whatever can be trans-
ferred without such consent.'
A provision that the contractor shall not assign any of the moneys
payable under his contract under the penalty of forfeiture, etc., is for the
benefit of the owner alone, to protect him against dereliction or insolvency
of the contractor. If, however, an installment of money not yet due under
the contract be assigned to a materialman and notice be given to the owner
with his exception, subsequent creditors of the contractor can derive no
advantage therefrom.^
294. The Provision may be Waived. — The provision may be waived by
the owner; and to show such a waiver it has been held enough to prove that
the engineer, whose written consent was required in case of assignment or
subcontracting, knew that subcontractors were at work, that he had directed
and given estimates of their work, and that the president of the company
knew of and permitted the contractors to continue the work without objec-
tion.'' If there has been a subletting of a portion of the work previous to
^GrUjrg V. Landis, 19 N. J. Eq. 350 [1879].
[1868] ^ ''Danforth v. Tenn. & C. R. Co. (Ala ),
2Burck«. Taylor, 14Sup. Ct. Rep. 696; 11 So. Rep. 60; Laiinman v. YouDg, 31
Hobbs V. McLean, 117 U. S. 567, distin- Pa. St. 306; and see Barnett v. Mayor, 31
guisJied. N. J. Eq. 841 [1879J.
3 Baruett v. Mayor, 31 N. J. Eq. 341,
* See Sec. 144, supra. f See Sees. 13-16, supra.
§298.] COJSfTBACT STIPULATIONS. 249
the execution of the contract, which had been acquiesced in by all the parties,
it will not work a forfeiture under such a stipulation.'
295. What does Not Amount to an Assignment. — An agreement between
a contractor and his surety, by which the latter is to furnish the money and
have one half of the profits, does not amount to a transfer or assignment of
the contract, so that a stipulation in the contract that the assignment of
the contract shall annul it, will operate.'
Nor does a letter to the contractor's attorneys authorizing them to receive
the money due him from the company and to pay it over to his bankers, to
whom he is indebted, upon which the attorneys wrote to the bankers prom-
ising them the money when they received it, operate as an equitable assign-
ment. Such an authority may be revoked at any time before it has been
executed.'
296. A Contract is Assignable unless it is Expressly Prohibited, or It is
a Contract for Personal Services. — If there is no express prohibition against
the- assignment of a construction contract, any contract which is not a con-
tract for the personal skill, taste, or professional ability of a person may
be assigned.* A contract between a city and a corporation, its successors
and assigns, for erecting and furnishing water to a city is assignable by the
corporation.*
297. Provision that Engineer shall Lay Out Works, and Contractor shall
Preserve his Lines and Levels.
Clause: "Previous to the commencement of the work the engineer
will give the lines and levels for the same, and the contractor shall there-
after carry out and maintain the works in every particular, according to
such lines and levels, as laid out by the engineer in charge thereof,
according to the drawings herein specified, or according to such other
approved drawings as may be supplied, and to such directions as he
may receive from time to time, and he shall be held responsible for
the correctness of the same throughout the whole term of this contract
until the works are completed and accepted.^'
298. Provision that Contractor shall Provide Such Labor and Structures
as Engineer may. Require to Assist in Staking Out Work.
Clause; " The contractor shall provide such men as the engineer in
charge thereof may require to assist him in setting out the works, and
he shall furnish, free of charge, such temporary structures at and
about the work as may be necessary for maintaining points and lines
given by the engineer for the building of the work, and will furnish
said engineer such facilities and materials for giving said points and
lines and levels as he may require; and the engineer's marks and stakes
shall be carefully preserved and protected by the contractor.''
* Launman v. Young, 31 Pa. St. 306. 197.
2Bowe V. Uuited States, 42 Fed. Rep. ^^arlyle W. L. & P. Co. v. Carlylemi.),
761 [1890]. 29 N. E. Rep. 556 [1892] ; accord, Went-
^Rodick V. Gandell, 1 De G. M. & G. worth v. Cock. 10 A. «fe E. 45; Robson v,
763 ; see also Morrell v. Wooten, 16 Beav. Drummond, 2 B. & Ad. 308.
*^e Assigns, under Parties, Chap. I., Sees 13-16, supra.
250 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 299.
299. Provision that Contractors shall Determine the Lines and Levels
for the Work and be Responsible for the Accuracy and Correctness Thereof.
Clause: "The contractor hereby agrees to set out and keep correct
the works in every particular, according to the drawings herein speci-
fied, or such other drawings as may be supplied, or the directions that
he may receive from time to time, and to be responsible for the correct-
ness of the same throughout the whole term of this contract; and he
shall be responsible for the correctness of the position, levels, and
dimensions of the several works according to the drawings and written
instructions of the engineer notwithstanding the contractors may have
been assisted by the engineer or assistant engineer in setting out the
same; and if at any time during the progress of the works any error
shall appear or arise therein, the contractors, on being required so to
do by the engineer, shall remove and amend the work to his satisfac-
tion. The levels shown upon the plans and sections are supposed to be
correct, but the contractors must verify the same, as well as all
other particulars of the contract on the ground, should they think fit
so to do, and they will be held responsible for the consequences of any
error contained therein or omission therefrom/'
CHAPTER XL
COMMENCEMENT AND COMPLETION OF WORK.
TIME FIXED AKD CALCULATED. DELAY IIT COMPLETIOIT AND DAMAGES
ASSESSED. LIQUIDATED DAMAGES AND PENALTIES. DEFECTIVE WORK
AND REPAIRS.
300. Provision Fixing Time When Work shall be Commenced and When
Completed.
Clause: "On the execution of this contract, complete and full pos-
session of the said premises, so far as may be necessary for the execu-
tion of the said work, but not so as to constitute a tenancy, shall be
given to the contractor, who shall forthwith commence the said work
[or who shall commence said work on or before the day of ....], and
actively prosecute the same; and the said work shall in all respects
be completed within calendar months from the time when such
possession shall be given. Provided that in case any delay shall rise
from fire, tempest, frost, or other inevitable cause or accident, or from
any strike in the building trade, or by the default of the owner in pay-
ing in due course any moneys due and payable to the contractor under
this contract, then such further time shall be allowed for the comple-
tion thereof as the said engineer or architect shall in writing certify to
be reasonable."
301. Provision that Possession of Site shall be Given with Order to Begin
Work, but Delay to Give Possession shall Not Vitiate Contract.
Clause: "The board, city or owner will, with the engineer's written
order to commence the works, give to the contractor . . the use of so much
of the site of the works as may, in the opinion of the engineer, be
required in order to enable the contractor . . to commence and continue
the execution of the works, and will, from time to time, as the works pro-
ceed, give the contractor . . the use of such further portions of such site
as the engineer may, from time to time, consider proper in that behalf;
but the non-delivery in manner aforesaid of the use of such site, or any
part thereof, shall not vitiate or affect this contract, nor any provision
therein, or in this specification contained, nor entitle the contractor . . to
any increased allowance in respect of money, time, or otherwise, unless
(and then only to the extent to which) the engineer may grant any
extension of time under the provision for that purpose hereinafter
contained."
802. Provision that Owner Retains Possession and Control of His Prop-
erty.
251
252 ENQINEERmO AND ARCHITECTURAL JURISPRUDENCE. [§ 303.
Clause: "The party of the first part expressly reserve to themselves
the right to occupy for their own purposes of whatever kind at any time
and for so long a time as the engineer may by notice in writing to the
contractors require, any portion or portions of the site of the works,
whether the works to be executed thereon be commenced or are in
progress or completed, and to employ thereon agents and workmen
other than the contractors in the execution of matters not the subject
of this contract, and the contractors shall not obstruct such agents iuid
workmen, but without extra charge, and without relief from any liabili-
ties or responsibilites incurred under this contract, shall allow and pro-
vide them unmolested access thereto, and such facilities as in the
judgment of the engineer may by him be reasonably demanded."
303. Provision that Work shall be Carried On as Directed.
Clause : " The said contractor(s) further agrees that the work to be
done under this contract and these specifications shall be commenced
within days (or weeks) after the execution of this
contract, or after written notice to do so shall have been given
by the owner, company, or city, or his (its) engineer or architect^
and that the work shall be carried on at such points and in such
order of precedence and at such times and seasons as may from
time to time be directed by the engineer or architect, and with such
force and in such manner as to secure its completion within the time
hereinafter specified, the time of beginning, rate of progress and time
of completion being essential conditions of this contract.* The said con-
tractor further agrees that he shall have no claim for damages upon the
owner or company for any delay or expense to which the contractor
may be subjected by the failure of other contractors to comply with the
terms of their contracts."
304. Provision that Work Shall be Carried On as Directed by Written
Orders of Engineer.
Clause: "And it is further agreed that the work shall be commenced
and carried on at such points and in such order of precedence, and at
such times and seasons, and with such force and in such manner as may
from time to time be directed by the engineer; but no part of such works
shall be undertaken without his written orders. And the time for com-
pletion, mentioned elsewhere herein, shall be computed from the date
of the first of such orders. The contractor shall not enter upon, under,
across, or through any house, building, shed, yard, area, roadway, ground,
garden, or any other private property, for the purpose of carrying on
the works, until authorized so to do in writing by the engineer. And
he shall give due and sufficient notice to all companies, such as railway,
gas, or water, etc., of his intention to enter upon their premises or inter-
fere with their works." *
'Under such a clause the contractor can- satisfaction" of an engineer and whose
not require taat the whole work shall be cerlificaie was to entitle the coutnictor to
laid out SI) !is to work on all parts at once. payment, ii was held that the engineer
Henderson B'dge Co. •». O'Connors, 11 S. had power to stop the work. Devlin v.
W. Rep. lo [1889]. When work was to be 2nd Ave. R Co., 44 Barb. (N. Y.) 81.
done " under the direction " and "to the
*See Sees. 309-314 and Chup. XIII, infra
§ 307.] CONTRACT STIPULATIONS. 263
305. Period of Performance Fixed and Working Days Defined.
Clause: " The party of the second part will commence the work herein
agreed to be performed by him within days from the day of the
date hereof, and will carry on the same in such order and at such times
and seasons, and with such force as shall from time to time be directed
or pi'escribed by the said engineer, and will execute all work, in every
respect, in a thorough and workmanlike manner, and will fully perform
and complete all the work which he has herein agreed to perform on or
before the expiration of days from the date hereof; but in the com-
putation of time, the length of time (expressed in days and parts of a
day), during which the work has been delayed in consequence of the con-
dition of the weather, or by any act or omission of the parties of the first
part (all of which shall be determined by the engineer, who shall certify
to the same in writing), and also Sundays and holidays, on which no work
is done, shall be excluded."
306. Work to be Prosecuted Day and Night.
Clause: "The work, unless otherwise authorized by the engineer,
shall proceed continuously day and night, and generally the works shall,
without extra charge, be carried on day and night without intermission,
should there be any cause whatsoever which in the judgment of the engi-
neer shall require it, but no work shall be carried on in the night with-
out the knowledge and sanction of the engineer."
307. Time of Completion Fixed, but May be Extended by Engineer for
Certain Causes.
Clause: " The contractor shall complete and deliver up to the board
the whole of the works comprising the new bridge and approaches, and
steamboat pier, and shall complete the removal of the temporary foot-
bridge, the fenders, booms, and all other temporary works, within a
period of .... years from the date of the engineer's order to commence
the same, the whole of the works to be delivered up complete in every
respect, in a clean and perfect condition. Provided always, that if by
reason of the non-possession of any site or sites required for the pur-
poses of the undertakings, or by reason of any additions to or enlarge-
ments of the works (which additions or enlargements the engineer is
hereby authorized to make), or for any other just cause arising with the
said board ^ or with either the engineer or his assistants, or in conse-
quence of any unusual inclemency of the weather, or general or local
strikes, or combination of workmen, or for want or deficiency of any
orders, drawings, or directions, or by reason of any difficulties, impedi-
ments, obstructions, oppositions, doubts, disputes, or differences, what-
soever and howsoever occasioned, the contractor shall, in the opinion of
the engineer, have been unduly delayed or impeded in the completion'
of his contract, it shall be lawful for the engineer, if he shall so think
fit, to grant from time to time, and at any time or times, by writing
under his hand, such extension of time, either prospectively or retro-
spectively, and to assign such other day or days for, or as for comple-
tion, as to him may seem reasonable, without thereby prejudicing or in
any manner affecting the validity of the contract, or the sufficiency of
the tender, or the adequacy of the sums or prices therein mentioned;
and any and every such extension of time shall be deemed to be in full
S54 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§308.
compensation and satisfaction for, and in respect of any and every actual
and probable loss or injury sustained or sustainable by. the contractor
in the premises, and shall in like manner exonerate him from any claim
or demand on the part of the board, for and in respect of the delay
occasioned by the cause or causes in respect of which any and every such
extension of time shall have been made, but no further or otherwise,
nor for or in respect of any delay continued beyond the time mentioned
in such writing or writings respectively/'
Clause : " If in the opinion of the engineer the contractor is obstructed
or delayed in the prosecution or completion of the work by the neglect,
delay, or default of any other contractor, or by any damage which may
happen thereto by fire or by the unusual action of the elements, or by
the abandonment of the work by employees in a general strike, then the
contractor shall be entitled to such an extension of the time hereinafter
or hereinbefore specified for the completion of the work as the engineer
or architect shall in writing certify; provided, however, the claim is made
by the contractor at the time and in writing." ^
308. Time for Completion.
Clause: " The said contractor hereby agrees to complete all the work
called for under this agreement, in all parts and requirements, on or
before ,189 . . , provided, however, that the board shall
have the right, at its discretion, to extend the time for said comple-
tion of the work."
309. Time of Completion Should be Clearly Stated. — If care be taken in
drafting these clauses to- express clearly the intention of the parties that the
work shall or must be completed by a certain day or date^ or within a cer-
tain period, there can be no doubt but that the clause is binding. There are
many circumstances that arise, such as delay in securing the site or in pro-
curing the right of way, or in furnishing certain materials, but these topics
are fully treated in the sections on Liquidated Damages,* Breach of Con-
tract,! and Impossible Contracts,J; to which the reader is referred. If the
time for completion of works is not specified then the contract must be per-
formed within a reasonable time.'§
310. Time Limit. Calculation of Period Named. — The calculation of the
number of days reserved to either party to commence or complete work, or
to give notices, is important when penalties are forfeited, large bonuses are
promised, or certain rights or privileges are to be exercised within a specified
time. Generally when it is required that notice shall be given a certain
number of days prior to a certain act, or that some thing, as work, shall be
done within a certain number of days, the holidays and Sundays intervening
^ Clark's Architect, etc. Before the Law. 917, note; and see Frame v. The Ella, 48
' Ca^es, 29 Amer. «& Eng. Ency. Law Fed. Rep. 569.
» See Sees. 311-326, Chap. XI, infra. f See Sees. 438-443, 681-704, 723-727, infra.
X See Sees. 669-680, infra,
§ See Sec. 310, infra. As regards the Extension of Time, see also Sees. 130, supra^
572, 574, 724-725, infra.
[§310. CONTRACT STIPULATIONS, 255
are to be reckoned and counted days.' * This is the general rule in the
absence of proof of a custom to the contrary.
If the contractor require a certain number of working days to get ready,
to begin work, or to complete a job, he should stipulate for a certain num-
ber of days, exclusive of holidays, or specify a certain number of " working
days." Whether or not the term "working days " would include rainy days
or stormy days on work that required fair weather may be doubted. The
determination of such a question would depend upon what was the evident
intention of the parties, to be ascertained by the jury, from all the facts
and circumstances of the case.
In reckoning the number of days named in the contract for completion
of work, the day on which the contract was entered into is not reckoned.
And if the day of performance falls on Sunday or a legal holiday, it may-
be performed or completed on Monday or the day following." This
rule seems to be well established in New York and Massachusetts in all
contracts upon which days of grace are not allowed/ If the third day is
Sunday, when three days of grace are allowed, as on bills and notes, the
payment must be made on Saturday. A contract to be completed Nov. 31,
was held to require the work to be completed on Nov. 30.* The day on which
a claim comes due is excluded in computing the period of limitations.*
When the time of completion of a contract is not named, the courts
require that it shall be performed within a reasonable time ; ^' and the same
is held'when the contract requires the completion of the work ''as soon aa
possible," ^ or " at once and without delay." *
A reasonable time under a clause to complete *'as soon as possible" or
with "all possible dispatch" would probably be a shorter length of time
than when nothing was said to indicate that any haste was desired. There-
fore, under a contract which required a gas pipe line to be tested "with
reasonable promptness," a delay of several months after completion before
testing was held unreasonable.'
A contract to be performed "directly" is not one to be performed within
a reasonable time, nor is it to be performed instantly.*" "Forthwith" is
usually held to mean immediately, and they require performance "with all
' Gordon v. People (111.), 89 N E Rep. . Pope v. Terra Hante C. & Mfg. Co. (N.Y.),
SnO: Taylor v Palmer, 31 Cal. 241 [1866]; 13 N. E. Rep. 592 [1887]; Brodeck ?). Far-
Van Lenr v. Kansas Y. H. B. Wks. (Kan. num (Wash.), 40 Puc. Rep. 189; Fowler v.
Sup.) 43 Pac. Rep. 1134. ' Deakman. 84 111. 130; Lloyd's Law of
2 Hiunmond v. Ins Co., 10 Gray 306. B'ld'gs 60.
^Stebbinsi). Leowalf. 3 Cnsh. 187; Salter ■'Florence Gas, etc., Co, v. Hanby(Ala.),
■». Burt, 20 Wend. 205; Ex parte Dndge. 7 13 So. Rt-p. 848 [1898].
Cow. 147; A'derman v. Phelps, 15 Mass. ^ Sharpe ?; Johnson, 60 Barb. 144 [1871 j;
225. "as soon as practicable," see Reedy ■».
"Bean v. Kinnear. 28 Ont. Rep. 813. Smith, 42 Cal. 245.
"Geistweidt V. Maun (Tex.), 37 S. W. »Tasker v. Crane Co. (C. C), 5 Fed»
•Rep. 372. Rep. 449*
« Skinner v. Bedell's Adm'r, 32 Ala. 44; i" Duncan v. Topham, 8 C. B. 325.
* In regard to Sunday see Sec. 59, infra.
256 ENGINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 311.
reasonable dispatch," "with reasonable and proper diligence," '^with all
reasonable celerity." They are stronger terms than the expression "within a.
reasonable time," and imply prompt, vigorous action/ What is a reason-
able time is a question of law to be decided by the court," unless it depends,
upon particular facts which are determined by the jury.' The nature of thfr
contract will determine it."
In determining what would be a reasonable time it has been held that
regard must be had to the capacity of the manufacturer's plant, though the
other party was unaware of its capacity; and such question is not to be
determined from the time in which manufacturers in general would have^
performed the contract.*
A promise to try to complete a contract by a certain date does not make-
time of the essence of the contract so as to give the owner a counterclaim
for expenses and losses due to the failure of the contractor to complete tha
work by the date named." Work to be completed by a certain time must be
finished before that time.'
Materials bought and no time specified for the payment of the price-
must be paid for on delivery," which is regarded as a reasonable time."
311. Time Made Essence of Contract.* Liquidated Damages Fixed for
Delay in Completion of Work.
Clause : " Time shall be especially considered as the essence of t'his
contract on the part of the contractor[s],*" and in case the contractor [s]
shall Jail in the due performance of thp works to be executed under
this contract by and at the time or times herein mentioned or referred
to, or at other than the day or days to which the period of completion
may have been extended, may be liable to pay to the board, aa
and for liquidated damages, and not as penalty, the sum of $ for
each and every which may elapse between the appointed and
actual time of completion and delivery hereinbefore mentioned or pro-
vided for, which sunj is hereby agreed upon, fixed, and determined a»
the damage which will be suffered by such failure to complete within,
the time named; and the owner or city may deduct the same from. any
moneys in their hands due or to become due to the contractor[s] ; and
such payments or deduction shall not in any degree release the con-
tractor[s] from the further obligations and penalties in respect of the-
fulfilment of the entire contract, nor any right which the board might
* See cases, 8 Amer. & Eng. Eucy. Law ' Rankin «. Wood worth, 3 P. & W. (Pa.>
572-8; Anderson v. Goff (Cal.), 13 Pac. 48; ^^a^soEmdeu's Law of Building, etc.,.
Rep. 73 [1887]. 166.
2 Ellis V. Paige, 1 Pick. 43. » Brady v. Anderson, 24 111. 112.
»Howe V. Huntington, 15 Me. 350, and 'Palmer x. Breen, 24 N. W. Rep. 322.
cases cited ; Murrell v. Wjiitney, etc., 32 ^^ Time may be made of essence of con-
Ala. 55. tract, and the parties may expressly' agree
^Griffin v. Ogletree (Ala.), 21 So. Rep. that nothing shall be paid for the works.
488. unless they are completed by a lime named.
* Smith V. Spratt Mach. Co. (S. C), 24 Westerman v. Means, 12 Pa. St. 97 ; Kent
S E Rep. 376; Pope, J, dissenting. ■». Humphreys, 13 111. 573; Hudson v.'
* Gubbins «. Lautenschlager (C. C), 74 Temple, 29 JBeav. 536 ; Liddle v. Sims, ^
Fed. Rep. 160. Smedes & M. 596.
* See Sec. 326, infra.
§ 314.] CONTRACT STIPULATIONS. 257
have to claim, sue for, and recover compensation and damages for non-
performance of this contract at the time hereby stipulated."*
312. Contractor shall be Liabls for Superintendence and Inspection and
a Sum Named as Liquidated Damages for Delay in Completing Work.
Clause : '' Sliould tiie contractor not complete the work herein con-
tracted for at the period agreed upon as above mentioned, the con-
tractor shall be liable for and shall cause to be paid to the corpora-
tion all salaries or wages which shall become due to the person or
persons superintending the work on behalf of the said corporation,
from the above-named period for completion until the same shall
actually be completed and accepted, and shall also pay to the said cor-
poration as liquidated damages (over and above such salaries and wages)
the amount of dollars per day for each, etc., and the
engineer for and on behalf of the said corporation or owner may de-
duct such salaries, wages, and damages from any moneys payable to
the contractor in respect of this or any other contract."
313. Periods for Completing Several Stages of the Work Named and
Liquidated Damages Fixed for Each.
Clause : " The contractor is to finish each of the above works that
may be awarded to him within the period marked opposite the same in
the following list, counting from the date of the order to commence the
same, and to pay the sums marked opposite each as liquidation damages
for each and every day that any part of the said work shall remain
unfinished after that time. But in the event of delay to the works by
reason of strikes or combinations on the part of the workmen employed,
or by any act of the board, the engineer will allow such additional
time as he may deem fair and reasonable."
Works.
Masonry of abutments and
piers, ready for the reception
of the suoerstructure
Steel supers ructure and deck
ready for tr ffic
Etc., etc.
Time Within which Work is to be
Completed.
Daily Penalty for Non«
completion in Time.
814. Liquidated Damages for Noncompletion, Delay, or Other Breach.
Clause: "And it is further expressly agreed that in case the said
contractor .... shall fail to fully and entirely, and in strict con-
formity to the provisions and the conditions of this agreement,
perform and complete the said work, and each and every part and
appurtenance thereof, within the time hereinbefore limited for such
performance and completion, the said part of the second part shall
and will pay to the said part. ... of the first part the sum of
dollars ($ ) for each and every day that the said part of. . the
second part shall delay the full completion and delivery of the work
and premises to the said company or its authorized agents, which said
sum of.... dollars ($.......) per day is hereby agreed upon,
fixed, and determined by the parties hereto as the damages which the
said company will suffer by such delay and default, and not by way of
*86e Sec. 321, infrr.
258 ENOINEEBINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 315.
penalty. And the said party of the first part may deduct or retain
the said sum of dollars ($ ) per day out of or from any
moneys that may be due or become due under this agreement."
Clause: "And it is further agreed and understood that no extra
allowance of time shall be allowed for the performance and cornpletion
of any extra works, alterations, or additions required or ordered as here-
inbefore [or hereinafter] provided by the terms of this contract, but
that such extra work, alterations, and additions shall be completed as
if they had been comprised in the original work and within the period
limited for the completion of the same, unless an extension of time be
allowed and agreed upon in writing, signed and countersigned by the
parties [or their engineer] as part of this contract."
315. Recovery of Damages Stated May Depend upon Whether It Is a
Penalty. — When the contract fixes a certain sum as damages for its breach
or delay, the question whether the amount can be recovered at law depends
upon whether the court construes the sum stipulated to be " liquidated
damages" or a " penalty." If the sum stipulated is regarded as "liquidated
damages," it is the measure of damages and the jury are confined to it; but
if the court hold it to be a penalty, the actual damage suffered will be
regarded and not the amount named in the instrument.* Whether or not it
is a penalty is a question of construction for the court." Forfeitures are
regarded by courts with little favor, and will seldom be upheld if intended
to operate as penalties." The tendency ancl preference of the law is to- con-
sider a sum payable for breach of a contract as a penalty over which it has
control rather than liquidated damages ; * and no more than actual damages
can be recovered.^ Courts generally treat a fixed sum designated as damages
in a contract as a penalty, and inquire into the damages actually suffered."
316. A Penalty Cannot be Concealed Behind the Words " Liquidated
Damages." — This inclination of the court renders it necessary to so draw the
contract as to make the forfeiture stipulated come under the court's classi-
fication of liquidating damages. In deciding this question the court will
consider the whole nature and object of the agreement ' rather than the pre-
cise words of the contract. It will seek to gather the intention of the
parties as expressed in all the provisions of the contract ;^ it will look at
the subject of the contract, its surroundings, and conditions ; it will inquire
into the work, its character, importance, and the difficulty of ascertaining
the actual damages,* the magnitude of the sum stipulated as compared with
^ Lowe V. Beers, 4 Burr. 2228 ; Harrison "Lnnsing «. Dodd, 45 N. J. Law 525.
V. Wri,i,Hu, 13 East. 343 ; 5 Amer. & Eng. ^ Schofleld v Thompkins, 95 111. 190.
Eu.v.La\v24. « Hooper i). S. M R. Co., 69 Ala. 536;
•^ Fo ey V. McKeegan, 4 Iowa 1 ; Wallis Farrar v. Beeman, 63 Texas 175.
v. Smitli, L. 11. 21 Ch. D. 223. "'Pierce v. Jun.ff. 10 Wis. 30; Penny-
=» Apple.i^ale v. Jacoby, 9 Dana 206 ; Halm packer «. Jones, 106 Pa. St. 237 ; Vetter -».
V. Horstinan, 12 Bush. (Ky), 249; Home Hudson, 57 Texas 604; Henry «. Davis,
Life Ins V. Pierce. 75 111. 426 ; Eva v. Mc- 123 Mass. 345.
Ruhon, 77 Cal. 467 ; E.'izabethtown & P. » Streeper v. Williams (Pa.), 12 Wright
M. Co. V. Geoghegan, 9 Bush. (Ky.)56; 454.
Elliott V. Railro .d Co.. 99 U. S. 573 [1878] ; ^ Patent Brick Co. v. Moore, 75 Cal. 205.
Cheney «. Bilby (C. C. A.), 74 Fed. Rep. 52.
§ 317.] CONTRACT STIPULATIONS. 25&
the whole cost or value of the work, as well as the probable damages con-
sequent to delay or a breach/ and if from a consideration of all these ques-
tions the court is of the opinion that the sum stipulated is a penalty, it will
be so construed whatever be the language employed. A real "penalty^'
cannot be successfully concealed behind the words " liquidated damages." '
On the other hand, a' sum denominated a "penalty" or a "forfeiture"
may be held to be liquidated damages if, under all the circumstances, such
appears to have been the intention.' Its nature is not to be determined by
the terms used by the parties, but from a consideration of the agreement
and surrounding circumstances.''
317. The Damages Recovered or Withheld Must be Commensurate with
the Injury Suffered. — It cannot be doubted that the general leaning of the
courts is that such agreements for damages shall be considered penalties,
so that a party may retain only such damages as he can show in justice and
fairness he is entitled to. The general rule of law is that the remedy shall
be commensurate with the injury sustained,^ and the sum named will be the
measure of damages only when it appears that it will no more than compen-
sate the loss sustained. °
If the default of the contractor resulted in mere nominal damages to
the owner no liability for the damages specified will be created/ It is quite
certain that unless the contract makes it appear that the stipulation was in-
tended as a provision for liquidating, the sum will be deemed a penalty and
will not be taken as liquidated damages.®
The intention expressed is not all controlling,' for in some cases the
subject-matter and surroundings of the contract will control the intention,
when equity absolutely demands it. Thus a sum expressly stipulated as
liquidated damages will be relieved from, if it is obviously to secure payment
of another sum capable of being compensated,^" as a large sum of money
in default of payment of a smaller sum." Cases of this kind are where the
' Mat' hews v. Sharp, 99 Pa. St 560. ^ si„.eve v. Breton, 51 Pa. St. 17.") ; Scho-
' Pollock's Contracts 467 ; Noves v. Phil- field v. Thnmpkins. 95 111. 190 ; Kemble ®.
lips 60 N. Y. 408 ; Sainter v. Ferguson, 7 Farren. 6 Bing. 148.
C. B. 716 : Sanford «j. 1st Nat'l Bank e GiiHian v. Rollins (Neb.), 59 N. W.
(Iowa). 63 NW. Rep 459 ; Moore «. Platte Hep. 893 ; Jnqnith «?. Hudson, 5 Mich 123 ;
Co., 8 Mo. 467 ; Basve i;. Ambrose. 28 Mo. Noyes v. Phillips. 60 N. Y. 408 ; Lindsay
39 ; Fitzpatrick v. "Cottingham. 14 Wis. v. Rockwall Co. (Tex.), 30 S. W. Rep. 380,
219 ; Dullaglian v. Fitch, 42 Wis. 679 ; certified check accompanying a bid; and see
Foley V. McKeegan, 4 Iowa 1 ; Perkins v. Slowman v. Walter, 1 Bro. Ch. 418.
Lyman, 11 Mass. 76 ; Graham v Biokman, ' Hathaway v. Lynn (Wis.), 43 N. W.
4 Dall. 149 ; Story's Eq. Jur. § 1318 ; see Rep. 956 ; se^ Happer «. Thomas, Com P).
also Lloyd's Law of Buildincr, pp. 98, 101 ; 5 Pa. Dist. Rep. 182.
Gillilan v. Rollins (Neb.), 59 N. W. Rep. » Dill v. Lawrence (Ind.). 10 N. E. Rep.
893 ; (tee also 18 Cent. Law Jour. 143 573 ; Richmond «. Robinson, 12 Mich. 193.
[1884] 9 Wolf v. D. M. & Ft. D. R.. 64 L)wa
3 Pollock's Contracfs 467 ; Noves^.Phil- 380, and cases cited; Astley v. Weldon, 2
lips, 60 N. Y. 408 ; Sainter «. Ferguson, 7 Bos & P. 350.
C. B. 716. 'oStreeper v. Williams, 48 Pa. St. 450;
^ Wolf iJ. Des Moines, etc., R., 64 Iowa Merrill v. Merrill, 15 Ma«s. 488.
380 ; see also 5 Amer. & Eng. Ency. Law " Kimball & Co. v. Doggelt, 62 111. App.
24-26. 528.
260 ENGINEERING AND ARCHITECT UMAL JURISPRUDENCE. [§ 317.
damages for delay or breach can be computed with certainty. If the damages
can be readily ascertained by a jury, a sum named as damages will be held
merely a penalty/ If the default of the contractor has caused no damages
or injury, then there can be no recovery of any sum, either liquidated dam-
ages or penalty.*"' The law aims to award "either such damages as fairly
and reasonably may be considered as arising naturally, that is, according to
the usual course of things from such breach itself, or such as may reason-
ably be supposed to have been in the contemplation of the parties at the
time the contract was made, as the probable result of the breach of it/''
The civil code of California forbids contract clauses for liquidated dam-
ages, unless from the nature of the case it is impracticable to fix the
actual damages suffered.* If, on the other hand, other damages are suf-
fered by the owner in excess of those named as liquidated damages, the
owner may recover them/
If there are several covenants, and the damages for the non-performance
of some of them are ascertainable by a jury, while the damages for the non-
performance of others are not measurable by any exact pecuniary standard,
a sum named as damages for the breach of any of the covenants or stipula*
tions is merely a penalty to secure the performance of the entire contract,
and is not liquidated damages to be recovered for the breach of a single
^stipulation."
Contracts, the damages from the breach of which may be determined,
include those for the payment of money, and contracts of sale where the
market price affords a standard by which to estimate damages/ Thus in
an agreement to forfeit ten per cent. {10 fo) retained as security for the com-
pletion of the contract to furnish ties to a railroad company, it was held to
be a penalty, and that the contractor was not debarred by the terms of the
contract from recovering for the ties actually delivered less the damage
actually sustained.^ In such cases the difference between the market price
for which they could have been obtained and the price to be paid is the
damage sustained."
The retention of a percentage of the estimates until the completion of the
work is not in the nature of stipulated damages or of a condition precedenfc
'Trower v. Elder. 77 111. 453 [1875]; ^Easton v. Cressey (Cal.) 34 Pac. Rep.
Brennan v. Clark (M(l.),45 N. W. Rep. 473 622.
^1890] ; Patent Brick Co. v Moore, 70 Cal. ^Pengra v. Wheeler (Qreg.) 34 Pac. Rep.
"205; Lucas v. Snyder, 2 G. Gr. (la.) 590; 354.
HeatwMle v. Gorrell (Kans.), 12 Pac Rep. «Trower v. Elder, 77 111. 453 [1875];
13=) [18871; Scoville v. Tompkins, 95 111. /n 7-d Newman, L. R. 4 Cli. D. 724; Slireve
190 ; McGee v. Lavell, L. R. 9 C. P. 115 ; v. Brereton, 51 Pa. St. 175 [1865] ; Light,
semble. GilHlan v. Rollins (Neb ) 59 N. W. etc.. Co. v. Jackson (Miss,), 19 So. Rep. 771.
ilep. 893 ; Lord v Gladdiss. 9 Iowa 265 ; ' London v. Taxing District, 104 U. 8.
Nowlin V. Pyne, 40 la. 166 ; Wilcus v. 771.
Kling, 87 111. 107-. Gulf, etc., Ry. Co. v sjemmison v. Gray, 29 La. 537, Iowa
Ward (Tex.). 34 W. Rep. 328 cases cited.
2 Appeal of McCnllough (Pa.), 18 Atl. » Tyler Car. & L. Co. v. Wettermark
Re!>. 1080. (Tex.), 34 S. W. Rep. 807.
^Hadley v. Baxendale, 9 Ex. 441.
§ 318.] CONTRACT STIPULATIONS. 261
requiring performance of the contract in every particular. In the absence
-of an express stipulation to that effect, it is a mere retention to answer
damages suffered.^
318. Stipulation is Good when Damages Suffered Cannot be Ascer-
tained.— With whatever degree of disfavor courts regard stipulations for
fixed sums as damages for breach of contracts in general, engineering
contracts form an exception to the above rules. Not from any relaxation
of the principle to control and inquire into everything pertaining to a
case within its jurisdiction, but from its incompetence to ascertain the
actual damages suffered.'' The peculiarity of engineering work, and the
_great importance of having all parts of the work progress towards comple-
tion at the same rate of speed, renders it impossible to estimate with any
■degree of accuracy the damages sustained by the failure of a contractor to
ieep and perform the material stipulations of an engineering contract. The
damages cannot be measured by the loss of tolls, fares, or revenues receivable
upon completion of the structure or work. The delay may hinder the prog-
ress of other parts of the undertaking ; it may cause delays in other or sub-
sequent work, and their cost doubled by less favorable conditions of weather,
seasons, the market, and labor. Such an undertaking would be burdensome
and impracticable for the court or jury, and they are compelled to accept the
parties' own figures, without attempting to determine the actual damage.'
It may be said generally that where, independently of the stipulation,
the damages are wholly uncertain and incapable or very difficult of being
ascertained, except by mere conjecture, they will be considered as liquidating
if they are so denominated in the contract.* If the amount is not out of all
proportion, it will be treated as liquidated damages.*
Whenever from the nature of the contract the damages cannot be cal-
culated with any degree of certainty, or there are peculiar circumstances
contemplated by the contract, the stipulated sum should be held to be
liquidated damages." It has therefore been held that a contract for founda-
tions,' or to build a bridge for a city,® or to build a street-railway for a
' Dauville Bridi^e Co. v. Pomeroy, 15 & Eng. Ency. Law 25 ; Fessman v. Seeley
Pa. St. 151 [1850]. (Tex.) 30 S. W. Rep. 268, where a pupil
^Applegale v. Jacoby, 9 Dana 206; had been expelled from school and ihe
Home Life Insurance Co. v. Pierce, 75 111. courts held the tuition, etc., paid was for-
426; E.izabetlitown & P. R. R. Co. v. felted.
Geogheo^an, 9 Bush (Ky.) 56, and cases ^Lgnnon v. Smith, 14 Daly 520 [1888];
'Cited; Indianola v. G. W. T. & P. Ry., Sedirwick on Measure of Damages, p 422.
56 Tex. 594 [1SS2]; Bancroft v. Scribner ^-^ard d. H. R B. Co, 125 N. Y. 230
(C. C. A.). 72 Fed. Rep. 988; Stover v. [1891]; Elizabethtown R. Co. v. Geo-
Spielman, 1 Pa. Super. Ct. 526; Kemble v. ghehan, 9 Bush (Ky.) 56.
Farren, 6 Bing. 147; Camp v. Pollock *5Amer. & Enu;. Encv. Law, 24, 25,
<Neb.). 64 N. W. Rep. 231 ; Wallis v. Smith, and cases cited; Halflf v. OCounor (Tex.).
L. R 21 Ch. D 243; Crux v. Aldred. 14 37 S. W. Rep. 238; Lennon v. Smith, 14
W. R. 656; Hall v. Crowley, 5 Allen 304; Daly 520 [1888], and cases cited.
Mnlone v. Philadelphia (Pa.), 23 Atl. Rep, 'Lincoln v. Little Rock G. Co (Ark.),
-628 11892]. 19 S. W. Rep. 1056.
3 Elizabethtown & P. R. R. Co. v. Geo- «Malone v. Philadelphia (Pa ), 23 Atl.
ehegan, 9 Bush (Ky.) 56; Wolf v. Des Rep. 628.
Moines & Ft. D. Ry., 64 Iowa 380 ; 5 Amer.
262 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 318.
town,' or to erect a building or a residence,' or to furnish a theater for an.
entertainment," were instances in which the sum specified as liquidated
damages for breach of contract would be so held. In fact, a contract for
any architectural or engineering construction of importance would com©
under the same class.*
If the parties bind themselves in a specified sum " not as penalty but as-
stipulated damages,^' and if by the whole agreement it appears that thej
did not intend the entire sum should be paid for any breach however minute^
it is a penalty merely, and if the sum specified will in some instances be too-
large and in some too small for breaches of the acts provided for, it is to be
considered a penalty. If however the injury provided against is altogether
uncertain, the sum is to be esteemed liquidated damages."
The insertion of a clause for liquidated damages for failure to perform
a contract has been held not to prevent a decree for specific performance of
the contract."
A sum denominated a penalty or forfeiture will be considered liquidated
damages where it is fixed upon by the parties as the measure of the dam«
ages, because the nature of the case, the uncertainty of the proof, have in-
duced them to make the damages a subject of previous adjustment/ The
forfeitures usually provided in contracts for construction of railroads, bridges,
or other engineering works come under this class, and are commonly regarded
as liquidated damages.®
This is not however a universal rule, and it is held to the contrary when-^
ever the damages can be determined. The exception is sometimes made in
regard to buildings/ and an exception has been made in case of grading a
park.^" It has been held an error to refuse the admission of evidence of tha
measure of damages offered b}^ the contractor."
The difficulty of fixing or estimating the actual damage caused by the
delay or breach must be shown to the satisfaction of the court by evidence,.
^Nilson V. Jonesboro (Ark.). 20 S. W. How. Pr. 317; Farnbam v. Ross, 2 Hall.
Rep. 1093 : O'Doniiell ^ Rosenberg, 14 187 : Ward v. H. R. B. Co., 125 N. Y. 230
Abl). Pr. (N. S.) 59 ; Mills v. Paul (Tex.), [1891] and case.-^ cted; Carter v. Landry, a
30 S. W. Rep. 558. Pugslev &B. (N. B.) 516 [1880] ; Indianola
2 Collier v. Betterton (Tex.), 29 S. W. v. G. W. T. & P. Ry., 56 Tex. 594 [1882]:
Rep. 467. Nilson v. Jonesboro (ArU.) 20 8. W. Rep,
sMawson v. Leavitt (City Ct.), 37 N. Y. 1093. -
Supp. 1138. 8 Ranger v. Great Western Ry.. 27 E. L.
4Reicbeubacb v. Sage (Wasb.), 43 Pac. & E. 61 ; Easton v. Penna. & O. C. Co., IS
Rep. 354, a building; Manistee I. W. Co. Obio 79; Hennessay v. Farrell. 4 Cusbing
V. Sbores L. Co. (Wis.) 65 N. W. Rep. 863, 267; Pierce on American Railroads 377;.
a &or/<; Easton ?). Penna. Canal Co., 13 Obio Pierce v. Jnng, 10 Wis. 30; Dvvinell v.
79; Wolfe v. Des Moines R. Co., 68 Iowa Brown, 54 Me. 468; Jackson «. Clevelai.d»
880. 19 Wis. 400.
* Sbreve V. Breretnn. 51 Pa. St. 175 [1865]; ^ Cockran v. Peoples Ry. Co. (Mo.), 21
TroweriJ Elder, 77 111. 453 [1875]. S. W Rep. 6.
6 Lyman v. Gedney. 114 III 388. ^^ Monmoutb Park v. Warren (N.- J.), 27
^ Streeper v. Williams, 48 Pa. St. 450; 1 At). Rep. 932.
Butb. Dam. 512. 520 ; Cotbrel v. Talmad^e, ^i Dietert v. Friday (Tex.), 23 S. W. Rep.
9 N. Y. 577; O'Donnell v. Rosenberg, 14 291.
Abb. Pr. (N. S.) 59; Pettis v. Bloomer, 21
§319.] CONTRACT STIPULATIONS. 263
to bring a case under this exception and entitle' an owner or company to
recover the account stipulated for as liquidated damages.*
A contract of employment between a waiter and the proprietors of a
hotel which stipulates that if the waiter leave their service without giving
three days notice he shall forfeit all moneys owing him, provides for a pen-
alty, and not for liquidated damages.^ A stipulation in a contract entered
into by a cotton-mill and one of its operatives, earning between 50 cents
and $1.00 per day, by which she forfeits $10 of her wages if she shall leave
without giving two weeks' notice, is a stipulation for liquidated damages,
and not for a penalty, and is neither unreasonable nor oppressive ; it being
certain that the cotton-mill will suffer damages from the unexpected quit-
ting of its operatives, and there being no certain standard by which the
actual damages can be ascertained.' It seems that $10 may be regarded as
liquidated damages because it is reasonable, but a forfeiture of all that is
due one is held not liquidated damages. So a provision that the contractor
shall pay the wages of the owner's superintendent during any delay from his
failure to complete the work in the time specified is for liquidated damages,
and not for a penalty.*
319. To Evade the Provision Contractor must Show Damages Actually
Suffered, or that the Sums Stipulated are Unreasonable or Exorbitant. —
It is incumbent upon the contractor to show what damages the company
suffered if he claims the stipulation is for a penalty,^ but for the owner to
recover a sum stipulated as liquidated damages no proof of the actual dam-
ages suffered need be furnished." It seems to be necessary, however, to ask
for the construction of the contract provision as to liquidated damages,
when the owner sues on the contractor's bond for completion, or he will have
to prove the damages he has sustained.^
In any case it is submitted that if the amount stipulated as damages be
so exorbitant that to enforce its payment would be to inflict a penalty on
the. party in default, instead of making good the injury sustained by reason
of the breach, it will not be enforced."* Or if the stipulated sum is so great
that it is apparent that the provision was inserted "to terrorize" the con-
tractor to accomplish a timely execution, it will be held a penalty, and the
actual damage must be proved."
' Patent Brick Co. v. Moore, 70 Cul. 205; 111. 107, and see Note 1, supra.
Faunce v. Burke, 16 Pa. St. 469; Geiger v. ' De Mattos v. Jordon (Wash.), 46 Pac.
West Md. R. Co., 41 Md. 4. Rep. 402 ; and see Wilens «. Kliug, 87 111.
'•^Schmieder v. Kingsley (Com. PI.), 26 107.
N Y. Supp. 31. 8 Elizahethtowii & P. R R. Co. v Geo-
^ Tennessee Manufg Co. ■». James ghegau, 9 Bush (Ky.) 56 : Merrill ??. Me r-
(Tenn), 18 S W. Rep. 262. rill, 15 Mass. 488; Kemble v. Farreu, 6
4 O'Brien v. Anniston Pipe Works (Ala ), Bin jr. 141.
9 So. Rep. 415 [1891]. ^Bradstreet «. Baker, 14 R. I. 546;
^DeGraff V. & Co. v. Wickham (la.), 52 Schofield v Tompkins, 95 111. 190 ; Ward
K. W. Rep. 503; s. c, 57 N. W. Rep. 420; ?) H R. B. Co , 125 N. Y. 230 [1891] ;
Mills?). Paul (Tex.), 30 S. W. Rep. 558. Burley «. Peddie, 5 Sandf. (N. Y.) 192;
« Sanford v. First Nat'l Bank (la.). 63 N. Contee v. Dawson, 2 Bland. 264.
W. Rep. 459 ; hut see Wilens v Kling, 87
264 ENGINEERING AND ABGHITECTURAL JURISPRUDENCE. [§ 320.
A recent decision of the New York Court of Appeals makes a discrimi-
nation as to the purpose of these liquidated damages, which should be con-
sidered in drafting contracts. If the payment of liquidated damages is
reserved for the breach of the contract, it is good ; but if it is a means to
dissolve the contract, then the sum named as liquidated damages cannot be
recovered. The contract in question, which was declared to be a means of
dissolving the contract, reserved to the company the right to terminate the
contract at any time by formal notice in writing and upon payment to the
contractor for all labor performed and the further sum of $3000 as liquidated
damasfes. It was held that the contractor could not recover the $3000, al-
though the company had suspended the work.* If the contractor had shown
that he had suffered damages to the extent of $3000, he might have re-
covered it, we should say, not upon the contract clause, but as damages re-
sulting from the breach. The discrimination made by the court is not one
that the average laymen will appreciate, for in the case where the contractor
is to pay a certain sum for failure to perform his part of the contract, if he
deliberately declines to complete it he must pay the liquidated damages.
The reason of the decision is probably to he found in the refusal of courts
to allow liquidated damages at any time unless it be apparent when the con-
. tract was made that there would be damages approximating the sum named
or that the circumstances were such that it would be impossible to estimate
them. The court probably regarded the $3000 in this case as a penalty dis«
guised under the name of liquidated damages.
320. Matters to be Considered in Determining the Amount of Liq-
uidated Damages. — From the foregoing it must be concluded that a clause
stipulating for an exorbitant or unreasonable forfeiture on account of delay
or breach is little better than no provision at all. In deciding what amount
shall be required it is suggested that the engineer shall make a careful
estimate of what the probable damages of delay or nonperformance would
be, and let that be the sum stipulated. Fortified with such an estimate, a
contractor could not hesitate to agree to such a sum, nor could a court deny
that it was liquidated damages." Of the many items of such an estimate to
be considered, the following are ennumerated, viz., cost of completion, in-
eluding superintendence; loss of traffic, tolls, and revenues; interest of capital
rendered idle and non-accumulative ; delaying of other work ; probable in-
crease in market prices of materials and labor ; subsequent unfavorable con-
ditions for the successful prosecution of the work, such as cold, hot, or rainy
weather, unhealthy seasons ; possibility of labor strikes, riots ; damages from
Weather, water and fire ; and in fact every condition and circumstance and
risk that a contractor must consider in making his bid for the contract.
' Curnan v. Del. & O. Ry. Co., 34 N. E. 1818 : Bridges v. Hyatt, 2 Abb. Pr. 449 ;
Rep. 201. Reilly v. Jones. 1 Bing. 302 ; Lowe v. Peers,
2"Tingley v. Cutler, 7 Conn. 291 ; Gannon 4 Burrows 2228 ; Astley v. Weldon, 2 Bos.
f). Howe. 14 Me. 250; Chamberlain v. Bag & P. 335.
ley, 11 N. H. 234; Story's Eq. Juris. §
§ 321.] CONTRACT STIPULATIONS. 265
Such an estimate could be but approximate at most, but the fact of there
having been such an estimate, however rough, if submitted to a contractor
and agreed to by him as the damages which would be suffered in consequence
of delay or breach, would be conclusive, and must be the measure of dam-
ages in case of delay or breach. The estimate should include all and be
sufficient to cover all probable expenses and damages, for it has been held
that when an amount is stipulated the contractor will not be held for dam-
ages in excess of the amount stipulated, " if he was delayed by causes
beyond his control and had acted in good faith." ^
A provision in a contract to build a railroad bridge that in case of non-
€ompletiou of the bridge or neglect to provide a crossing for trains -by a
given date the sum of $1000 per week should be deducted from the contract
price of the bridge for the time its completion or provision for crossing
trains is delayed beyond the date,- is a stipulation for liquidated damages.
In such a case if the contractors act in good faith and the delay results from
causes beyond their control, they will not be liable for damages in excess of
the stipulated amount, $1000.'
321. Difficult Construction, Casualties, etc., No Excuse to Relieve from
Liquidated Damages. — The fact that the conditions are changed and
the work has became more onerous will not excuse the contractor from a
full performance within the time limit. Delay of the work by high
waters, sickness of hands, and sunken logs encountered in sinking piers
does not excuse the contractor from performance of his contract. He
assumed those risks when he executed the contract without a provision
exempting him from the consequences of such casualties.^ The fact that
the contractor met one or more strata of jBlint rock is no defense to a
claim for liquidated damages, though at the making of the contract the
employer honestly expressed an opinion that the material to be encountered
was limestone rock;* but when delay was caused by the contractor having
unavoidably blasted more rock than required by the width of the cut while
doing the work in a careful and skillful manner, no liquidated damages
should be charged.* Inability of the contractor to obtain a certain kind of
stone required has been held no excuse unless the impossibility existed
when the contract was made,* and the death of the contractor has been held
not a good excuse.'*
1 T. & St. L. Ry. Co. v. Rust, 19 Fed. 111. 573; Cochran «. People's Ry. Co. (Mo.
Rep. 239 ; Welsh v. McDonald (Va.), 8 S. Sup.), 33 S. W. Rep. 177.
E. Rep. 711 [1888]. ^Yvmxi v. Crystal Ry. Co. (Mo.), US.
2 Texas & St. L. Ry. Co. v. Rust, supra. W. Rep 557 [1886J.
Accoj'd, Welsh v. McJDonald, supra. ^ Wright v. Meyer (Tex.), 25 S. W, Rep.
3 Texas & St. L. Ry. Co. v. Rust, 19 1122.
Fed. Rep. 239 [1883]; Jones v. St. John's ^jyicDaniel's Appeal (Pa.), 12 Atl. Rep.
Co]., L. R. 6 Q B. 115; Oakden v. Pike. 154 [1888]; but see Cannon v. Wildman, 28
34 L. J. Ch. 620; Kent «. Humphreys, 13 Conn. 490.
* See also Sees. 320-326, 573, 585, 674-680, and 689, infra.
266 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 322.
322. Damages Should be Denominated "Liquidated Damages." — In
drafting a contract it is of importance that the stipulation should be for
liquidated damages. It should definitely state :
"That the percentage retained from the estimate of the engineer or
the said sum of dollars [$ ] is a sum
reserved to insure the completion of the work, and is hereby agreed
upon, fixed, and determined by the parties hereto as the expense and
damage which the said company will suffer by such delay and default,
and not by way of penalty."
It should further provide " That the said company may deduct or
retain the sum of [$ ] for each and
every day the full completion and delivery of the work and premises to
the said company or its authorized agents is delayed."
It is submitted that a court would not construe such a clause in any
other light than of liquidated damages however much they may dislike for-
feitures. If the amount be reasonable, the clause, it is believed, will meet all
the requirements necessary to make the sum stipulated liquidated dam-
ages, and protect it from classification with penalties or forfeitures. If it
be not stated whether the sum named is intended as a penalty or as liqui-
dated damages, and no regard is paid to the magnitude or to the num-
ber of breaches that may occur, or to the amount of damages that may
ensue, and the contract is such that it may be partially performed and par-
tially violated, the sum so fixed is a penalty.*
323. Damages when Company has Taken Work Away from Contractor.
— Some special cases arise in regard to this question of liquidated dam-
ages in connection with a provision empowering the company or its engi-
neer in their discretion to annul the contract. When a contract job is to
be completed by a specified date, and the company or its engineer has in
its [his] discretion taken the work out of the contractor's hands, and
declare the contract broken,'' or the work is suspended," the question arises
whether the company can retain the amount stipulated for delay in its
completion. If this discretion has been properly exercised in good faith
the percentage reserved may be retained as liquidated damages by the
company.*
If it be agreed that the abandonment of the work shall extinguish the
company's liability, the percentage that has been kept back by the terms of
the contract to secure the completion of the work will be regarded as liqui-
dated damages, and cannot be recovered by the contractor.* It seems, how-
ever, that if the contractors themselves finish the work the percentage re-
«ierved is not so regarded, but can be recovered by the contractors. If the
^ City of El Reno v. Cullinane (Okl.), 16 Dubois v. D. & H. C. Co.. 4 Wend. (N.
Pac. Rep. 510. Y.) 285.
^Easton v. Pennsylvania & Ohio C. Co. "^ Easton ^. Tlie P & O. Canal Co., supra,
13 Ohio 79 [1844]. and see, P., etc., R. Co. v. Howard, 13
3 Nourse v. U. S., 25 Ct. of CI. 7, and see How. (U. S. ) 307.
*See Sees.. 728-733, infra. .
§ 324.] CONTRACT STIPULATIONS. 267
contract be abandoned or forfeited, relet, and others complete the work, then
the amount retained is regarded in its nature as liquidating damages. In the
language of the court, — " If it were not so intended then there would be no
security in the retention of this contract. The agreements of the parties are the
law by which their rights are to be determined, and I am extremely doubtful
ao least whether any court can legitimately interfere and upset their
arranofements where an honest discretion has been exercised and when
neither fraud nor circumvention has intervened. If no act in fact has
been done by the contractor nor duty omitted within the terms of the con-
tract which would justify the company or its engineer in declaring it
abandoned, then the honest exercise of the discretion conferred ought not
to shield the company from the payment so retained." ' *
324. Delay Caused by Other Contractors — Alterations or Extra Work.f —
If the contract simply provides for the retention of a certain sum or per-
centage until the completion of the work, it seems it is not to be regarded as
liquidated damages, and that the company can retain only so much as will
cover the damages actually sustained.' Therefore when the contractor was
delayed in consequence of a third party's failure to furnish necessary
explosives and the engineer in charge exercised his honest judgment and ter-
minated the contract, the court held that the ten per cent, reserved until the
completion and acceptance of the whole work could not be retained, since
the owner [government] had sustained no loss by the failure." If, how-
ever, by the contract ten per cent, has been retained to keep the work in
repair for a certain period after completion, no action can be had to
recover the ten per cent, reserved without an allegation that the contractor
kept the works in repair as provided.* Delay caused by other contractors may
relieve the contractor from damages if he has exercised due care and vigi-
lance,* but not so if he has agreed in his contract that the owner or princi-
pal contractor shall not be liable or responsible for delay of other con-
tractors, even though the owner has failed to bind other contractors not to
delay work." If it be provided in the contract that the contractor
shall give written notice of any neglect of other contractors to perform*
their part of the work, or of any unavoidable accidents that prevent prompt
performance,* the occurrence of such events will not excuse delay on the
part of the contractor unless such written notice has been given. If the
' Euston V. Pennsylvania & Ohio C. Co., • Semhle, McNulty v. Stearns (Iowa). 53
suprn. N. W, Rep. 357; accord, Stewart v. Ke-
2 Potter V. McPherson, 61 Mc, 240 teltas, 9 Bosw. (K Y.), 261 [1862]; Taykir
[1875]; Danville B. Co. ■». Pomroy, 15 Pa. t). Renn, 79 111. 181 [1875]; semhle, Rens?j.
St. 151 [1850]; The P. W. & B. R. Co. v. Grand Rapids (Mich.), 41 N. W. Rep.
Haward, 13 Howard's Repts. 4. 2.63. and see Wills ». Webster (Sup.), 37 N".
^ Quinu V. United States, 99 U. S. 30. Y. Supp. 354. contractor requested to delay.
4 Lo'isville v, Muldoon (Ky.), 22 S. W. ' Shute v. Hamilton, 3 Daly (N. Y.) 462.
Rep. 847. 8 Brown v. Strimple, 21 Mo. App. 338.
5 Graveson v. Tobey, 75 111. 540.
* See Sees 728-733, infra. f ^^^ Sees. 573, 585, 670, and 689, infra.
268 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 324.
contractor has agreed that delay shall not be excused by the neglect or
failure of other contractors, the agreement will hold.' It is no defense to
an action to recover liquidated damages stipulated for in the building
contract for delay that a subcontractor failed to fulfill his contract."
A provision by which the architect is given authority to adjust the loss
of time due to delays caused by other contractors does not preclude a
recovery by the contractor against the owner for delays and obstructions
caused by the acts of the architect as superintendent for the owner.'
The stipulation for liquidated damages is sometimes avoided by con-
tractors by pleading alterations, extra work, delay by other contractors, or
delay in having access to premises. Generally extra work imposed by the
company or owner, if it creates extra burdens and prevents the contractor
from completing the contract at the specified time, will relieve him from
specific liquidated damages.* The fact that disputes have arisen as to the
work done, materials used, and alterations required, and that the owner re-
fuses to release the contractor from the forfeiture of ten dollars per day for
delay, will not justify the contractor in abandoning his contract, even though
the owner is in error as to his claims.*
Since it is frequently necessary to order extras, it is customary to add to
the ordinary clause for liquidated damages a clause similar to the following:
"and in the event of any alterations or additions being executed under
the written order by the engineer as hereinbefore or hereinafter pro-
vided, it is further mutually agreed that the contractor shall execute
and complete the works contracted for with such alterations and addi-
tions in the same manner as if they had been originally comprised in
the works of the contract, and the period for completing the entire
works shall not exceed the period limited for the completion of the
original works, unless an extension of time be also allowed and agreed
upon in writing, signed and countersigned and made a part of this
contract."
Such a clause was held to bind the contractor, and even though it in-
volved an impossibility, he was precluded from denying his liability of the
* Shute «. Hamilton, 3 Daly (N. Y.) 463, Sweeny v. Davidson, 68 loWa 386; Mans-
and se^, Wood v. Ft. Wayne, 117 U. S. 312. field «. K Y. Cent. R. Co., 21 N. E Rep.
2 Reiclienbach v. Sage (Wash.), 43 Pac. 1037, premiums earned: Green v. Hain«s, 1
Rep. 354. Hilt. 254; Van Buskirk v. Stow, 42 Barb.
3 Genovese v. Third Ave. R. Co. (Sup.), 9; Doyle v Halpin, 1 J. «fe P. 352: West-
43N. Y. Supp. 8 wood -». Secy of India. 11 W. R. 261;
4 Weeks « Little, 89 N. Y. 566, and Havde ville Mfg. Co. v. Art Inst. (111.),
cases cited : Russell v. Sa Da Bandeira. 13 39 Fed Rep. 484 [1889]: rtw<i see Nelson «.
C. B. (N. S.) 149; Palmer v. Stockwell, 9 Pickwick. 30 111. App. 333: as to extra*
Gray (Mass.) 237; Baasen v. Baehr, 7 Wis. ordered, see cases 29 Amer. & Eng. Ency.
516; Taylor v. Renn, 79 111. 181 [1875]: Law 921; but see also Duckworth v. AUi-
and see Gutman v. Crouch, 134 K Y. 585, son, 1 M. & W 412; Fletcher v. Dyche, 2
and dissenting opinions. alHrraing 10 N.Y. T. R. 32; Legge v. Harlock, 12 Q. B.
Supp. 275; Keogh Mfg. Co. v. Eisenberg 1015.
(Com. PI.), 27 N. Y. Supp. 356; Texas & * Hulton Bros. v. Gordon, 33 N. Y. Supp.
St. L. Ry. «. Rust (C. Ct. Ark.), 19 Fed. 770.
Rep. 289; Marsh v. Kauff. 74 111. 189;
§ 325.] CONTliAGT STIPULATIONS, 26i>
stipulated sum. It was further held that the certificate of the engineer " as
to the completion of the work, and with respect to the quality and state
of works executed and to the time within which they should have been exe-
cuted, was not a condition precedent to the company's right to the amount
stipulated per day ; and further that the clause referring the matter to the
engineer did not exclude the right to bring an action for the sum as there
was no excluding words in the contract." ' A provision that any changes
in the plans "either in quantity or quality of the work" shall be executed
by the contractor without holding the contract as violated or void in any-
other respect, does not require the contractor to finish his contract within
the time specified or pay a forfeiture for each day's delay necessitated by
changes in the materials ordered.'
In a case where an owner failed to do his part in consequence of which
the contractor failed to complete his contract within the specified time, it
was held that the contractor was discharged from liability for liquidated
damages, and this although some work not affected by the delay of the
owner was not completed within the time,' and though the owner was not
responsible for the whole delay, he cannot recover for any portion thereof,
as the liquidated damages cannot be apportioned.*
When liquidated damages are stipulated in a bond or contract it seems
that the company is not confined to that remedy by way of damages for
the breach of contract, but it is entitled to an injunction restraining the
contractor from disregarding his covenants/* If the sura named as liqui-
dated damages be insufficient to adequately compensate the damage caused
by nonperformance, a suit may be had for rescission and damages.'
An extension of the time of performance has been held not to waive
the other conditions of the contract,' but as will be seen in the seption
following, it may be evidence of a waiver when accompanied by other acts
and circumstances.
325. Waiver of Stipulation for Liquidated Damages. — Care must be
taken when there has been default or delay on the part of the contractor not
to- waive the stipulation for liquidated damages, as in so many other cases
cited a failure to notice the default, or a continuance of the work and
' Jones V. St. Johns College, L. R. 6 Q. son (Ala.), 18 So. Rep. 806; and see Lowe
B. 115; and see Duckworth v. Allison, 1 M. v. Beers, 4 Burr. 2228; Harrison v. Wriglit,
& W. 412; Bailey «. Stetson, 1 La. Ann. 13 East. 343; hut see also Wilde t. Clark-
332, delay caused by unavoidable acci- son, 6 Term R. 303; Timison v. Brisrgs,
dent ; Leake's Digest of Law of Contracts 2 South (N. J.) 498: Barney's Ex'r v.
697. Bush. 3 Cow. (N. Y.) 151, as to liability of
2 Lilly «. Person (Pa.), 32 Atl. Rep. 23. sureties.
3 Weeks v Lttle, 89 K. Y. 566; Tobey « Wilson v. Roots (111.), 10 K E. Rep.
tj. Price, 75 111. 645. 204 [1887].
* Wills v.- Webste (Sup.), 37 N. Y. 'Jacksonville, etc., R. Co v. Woods-
Supp 354. worth, 20 Fla. 368; Barclay v. Messenger^
6 Diamond Match Co. v. Roeber (K Y ), 43 L. J. Ch. 449; Paddock v. Stout, 121
13 N. E. Rep. 419; Wilson v. Roots (111.), 111. 571.
10 S. E. Rep. 204 [1887J; McCurry v. Gib-
* See Sec. 326. infra.
270 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 326.
payments as if nothing had happened, may constitute a waiver of the right
to exercise the power bestowed by the stipulation. Thus it has been held
that allowing the contractor to continue the work as if under the contract,
after the time limit had expired and without claiming the forfeiture which
might have been exacted, was a waiver of the right to such forfeiture.'
The effect of an agreement to do additional or extra work, inadvertently
omitted from the original contract, made after the expiration of the time
for completion, is to waive an original stipulation to complete by a certain
time, and to substitute therefor a stipulation to complete within a reasonable
time.'' If the forfeitures have been waived it seems no recovery of damages
can be had,' but it has been held that a waiver cannot be implied from
silence alone when one is under no obligation to speak.* Acceptance of
work may be held a waiver of right to demand damages,^ but a failure on
the part of the owner to terminate the contract when it has not been com-
pleted on time was held no waiver." Bequests or orders to the contractor
to go on with the work, or to complete it, have been held to amount
to a waiver of the clause for the liquidated damages.' The making of
payments after default of contractor without objection, after the time for
completion has passed, is a waiver of any claim for damages for such failure
to complete in time.*
326. Delay Occasioned by the Fault of the Owner.* — The failure of the
owner to finish the work undertaken by him in season to enable the con-
tractor to complete his contract within the time specified is a sufficient
excuse for delay, and discharges the contractor from liability for liquidated
damages.' This was so held although some of the work not affected by
the owner's delay was not completed within the time; the damage being
payable upon a failure to complete entirely.'"
The neglect of the owner to get the necessary permit to proceed from
the board of health," or to furnish the contractor with copies of plans and
» Sinclair v. Tallraadge, 35 Barb. 603 Y.) 171.
[1861]; Dunn v. Steiibinc?. 120 N. Y. 232; 'Close v. Clark (Com. PI.), 9 N. Y.
Foster v. Woj'tliingtoa, 58 Vt. 65; semble Supp. 538; Eyster v. Parrott, 83 111. 517;
Robinson ■». L ike Shore & M. S. Ry. and see Lawson «. Hogan, 93 N. Y. 39. .
Co. (Mich.), 61 N. W. Rep. 1014; Ober- « Brodeck «. Farnum (Wash.), 40 Pac.
lies «. Biillinger, 75 Hun (K Y.) 248; Rep. 189; Paddock v. Stout, 121 111. 571;
Barber 'd. Rose, 5 Hill (N. Y.) 76; but see Meehau «. Williams, 2 Daly (N. Y.) 367;
Smith®. Smith. 45 Vt. 433; «^se«Fowlds, Cooke «. Oddfellows, 1 N. Y. Supp. 498
«. Evans (Minn), 54 K W Rep. 743; Law- [1888].
80J1 «. H gan, 93 N. Y. 39 » Standard Gas Lt. Co. v Wood, 61 Fed.
2 Cornish v Suydam (Ala), 18 8. Rep. Rep. 74, foundations not completed; King
118; semble Luckhart v. Ogden, 30 Cal. Iron Bdge. Co. ■«. St. Louis, 43 Fed. Rep.
547; Van Stone v. StillweH M^g. Co.. 142 768.
U. S. 128; and see Van Buskirk v. Stow, 42 '° Weeks v. Little. 89 N. Y. 566 ; 11 Abb.
Barb. 9. N. C. 415; Stewart v. Ketelt;is. 36 N. Y.
3 Michel V. O'Brien, 27 K Y. Supp. 173. 388 [1882] ; but see Mcintosh v. Midland
4 Texas & St. L. Ry. v. Rust (Ark.), 19 Cos. R. Co., 14 M. & W. 548; 1 Redfield
Fed. Rep. 239 [1883]. on Law of Rys. 440 (6th ea.) [1888].
5 Adams v. Hill, 16 Me. 215; Cummings " Deeves v. New York, 17 N. Y. Supp.
©. Pence. 1 Ind. App. 317. 460
• Grannls L. Co. v. Deeves. 72 Hun (N.
* See Sees. 439, 440, 670, and 689, infra.
§ 326.] CONTRACT STIPULATIONS. 271
specifications/ or to furnish correct plans and specifications, necessitating
the doing of a part of the work a second time,' or to promptly fix the site
of the structure,' or to furnish the object to be wrought,* or to change its
location,^ or to estimate and pay for work done and materials furnished," or
where the architect made material changes in the plans and specifications
or failed to furnish the necessary lines and levels,' or to have a survey
made,® will excuse delay on the part of the contractor and prevent a re-
covery of stipulated damages, but the act of the owner's inspector in re-
jecting materials which should have been accepted will not make the owner
liable for the delay it caused." * An employer or owner can exact no damages
or forfeitures for delay caused by his own act in stopping the work,'" as by
flooding a reservoir site before the time for completion;" or by his failure to
secure a right of way." Evidence may be properly admitted to show that
the delay was caused by the architect, and not by the contractor or by the
owner. ^^ If the owner or company has taken the job away from the con-
tractor, under a clause authorizing him to do so, upon the contractor's
failure to proceed with the work in a satisfactory manner, the act of taking
the work out of contractor's hands has been held a waiver of his right to
olaim damages.** f Neglect on the part of the owner to provide or furnish
materials according to his undertaking,'* or a failure to put in a side track as
agreed, so that materials could be transported and unloaded upon the site or
spot,'* or to perform his part of the agreement." Delay caused by other
contractors not having their work done, by reason of which the contractor
was prevented from commencing his work when expected," will excuse the
contractor for delay in completion. |
» Welch V. McDouald, 85 Va. 500 [1888]. see Wright v. Meyers (Tex.), 25 S. W.
^Sperry V. Fanning, 80 111. 371 [1875]. Rep. 1122 [1894]; Texas, etc., R. Co. tr.
"Blanchard v. Blackstoue, 102 Mass. Saxton (N. Mex.), 34 Pac. Rep. 532[1893].
343. 14 Crawford v. Becker, 13 Hun 375 [1878];
* Manistee I. Wks. v. Shores Lumb. Co. accord Holme «. Guppey. 3 M. & W. 387.
<Wi^ ), 65 N. W. Rep. 863. i5 Taylor v. Netherwood (Va.), 20 S. E.
5 Damon v. Granby, 2 Pick. 345. Rep. 888; Bulkley v. Braiuerd, 2 Root
* O'Connor «. Henderson Bdge. Co. (Ky.), (Conn.) 5.
27 S. W. Rep. 251 [1894]. i«Huckenstein 'o. Kelly & Jones Co.(Pa,),
' White V. School District, 159 Pa. St. 21 Atl. Rep. 78 [1891]; s. c. 25 Atl. Rep.
201; a/icZ 566 Hammond v. Beeson, 112 Mo. 747, 139 Pa. St. 201; and see Knowles v,
190. Penn. R. Co. (Pa.), 34 Atl. Rep. 974.
8 See O'Connor v. Smith, 84 Tex. 232. i' Davis v. Crookston W. P. & L. Co.
9 Montgomery «. New York (N.Y. App.), • (Minn.). 59 N. W. Rep. 482; Keogh Mfg.
45 N. E. Rep. 550. Co. v. Eisenberg. 27 N. Y. Supp. 356;
10 Marsh v. Kauff, 74 111. 189 [1874]; White?). Fresno Nat. Bank, 98 Cal. 166;
Homebaiik v Drumo;oo'e, 109 N. Y. 63; and see McAndrews v. Tippett, 39 N. J.
Pennell v. M:iyor, 14 N. Y. Supp. 376 Law 105, and Haiighery v. Thiber-
[1891]. ger, 24 La. Ann. 442; Davis?). Crook-
1' And see Skelsey v. United Stales, 23 Ct. ston W. W. P. Co. (Minn). 59 N.W. Rep.
of CI. 61. 482 [1894]; Stewart v Keteltas, 36 N. Y.
'2 French v. Syracuse (Sup.), 41 N. Y. 388; Crawford v. Becker (N. Y.), 13 Hun
Supp. 1036. 375 [1878]; but see Wood v. Boney (N J.),
'3 Mahoney v. Rector of Church (La.), 21 Atl. Rep. 574 [1891]: Frenchi v. Collen-
17 So. Rep. 484; Genovese ®. Third Ave. der Co (Com. PI), 13 N. Y. Supp. 294.
R. Co. (Sup.), 43 N. Y. Supp. 8; and ^^ Qraveson ?). Tobey, 75 111. 540 [1874];
*See Sec. 276, supra. \ See Sees. 323, supra, 585, 689, and 726, infra.
X See Sec. 324, supra.
272 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§326*.
Under a forfeiture clause which does not make time the essence of the
contract, where the contractor and his assignees have constructed and put.
in operation waterworks not complying with the contract, and the non-
performance of the contract is largely due to the acts of both parties, and
in part to unsuccessful experiments authorized by the city, it was held that
the contractor and his assignees were entitled, before they were liable to-
forfeitures, to a reasonable time in which to perform it. That an in-
junction would lie to restrain the city from interfering with the pipes laid
by the contractor or his assignees during the extension of time granted
them,* but that supplying water from other sources equally as good or
better was not compliance with a contract to supply water from artesian
wells.' So when a contractor contracted to build a bridge "on the present-
stone piers/* and bound himself to complete the work within ten months and
one week after receiving notice to begin, and the city failed to prepare the-
piers to receive the bridge until eleven months after it had given notice to
the contractor to begin, it was held that such failure released the con-
tractor from the obligation to complete the bridge within the specified time.*
P So if an owner agrees to pay a bonus or extra price for the performance of
a job, if completed by a certain time, the contractor is entitled to recover
the additional pay, though he did not perform in the required time, if the
delay was caused by the owner's refusal to furnish the tools and requisite
site for the erection of the work."
The act of furnishing or placing on the ground some materials that are
afterwards used in the construction of the building is not " the commence-
ment of the building," but the digging for the cellar or the excavation for
the foundation is the commencement of the building.*
Where a contract contains an exemption clause against liability for non^
fulfillment of a contract caused by strikes of workmen, a strike cau?sd by a
contractor's reducing the wages of his workmen is not covered by such a
provision, unless a strike so caused is specially provided against. A stipu-
lation to use every effort to fulfil the contract prevents such an exemption
clause operating either where the contractor's own act causes the strike or
where he encourages it, or where he could have prevented it and did not."
"When the completion of the work is conditioned upon "there being no
interference from labor strikes," the fact that the men quit work because
the builder failed to pay them their wages as agreed does not release the
Weeks v. Little, 11 Abb. N. C. 415; Tay- ^Maher «. Davis & Starr L. Co. (Wi\),
lor V. Reun. 79 111. 181; Cooke v. Odd- 57 N. W. Rep. 357; liquidated damages,
fellows. 1 N. Y. Supp. 498 [18S8]; and see 13 Amer. & Eng, Ency. Law 847; semhl»
O'Connor v Smith (Tex), 19 S. W. Rep. Mansfield v. K Y. Cent. R. (K Y.), 21
168 ; Smith «. Boston, etc., R. Co., 36 N. N. E. Rep. 1073 [1889].
H. 458. 5 Kansas M't'g' ■ Co. n. Weyerhaeuser
1 Foster V. City of Joliet, 27 Fed. Rep. CKau.), 29 Pac. Rep. 153 [189 >] ; accord,
899 [1886]. Jacobus d. Mut. Benefit Ins. Co., 12 C. E
2 Foster v. Joliet. supra. Gr. 604.
3 King Iron Bridge Co. v. St. Louis, 43 « D. L. & W. R. Co. v. Bowns, 36 N. Y.
Fed. Rep. 768 [1890]. Sup. Ct. 126 [1873].
L
§ 326.] • CONTRACT STIPULATIONS. 273
contractor from completing the building by the time agreed upon/ nor does
the fact that the men struck after the date of completion had passed."
The subject of strikes, boycotts, and conspiracies should be an interesting
one to contractors, engineers, and architects, and it is to be regretted that
the space to which this book is confined will not permit a full discussion of
tlje subject. It would involve so many other topics of criminal law and of
torts that it is not deemed advisable to attempt it. The reader is referred
to other excellent works upon the subjects."
The questions which arise most frequently in construction work are
those mentioned in the cases just cited, which involve questions of how exten-
sive a strike must be, or from what causes it may have arisen, or how much
the contractor may have tried to prevent it, in order to excuse delay on his
part. These are not questions of law but those of fact, and are therefor©
for the jury to determine, and their determination cannot be foretold.
It has been held that where a building contract provides for the com-
pletion of works by a specified time, " contingent upon strikes and boycotts,"
it protects the contractor against liablity for unavoidable delay so far as it
is due to strikes, and the strikes referred to are not limited to such as occur
in the shops of the contractor.*
If the contract provide for monthly payments, the wrongful withholding
of such payments will excuse the contractor's delay in completing his
contract.^ *
When payment was to be made in specified instalments, if, in tho
opinion of the architect, the work progressed with sufiicient speed to insure-
its completion by the contract time, and a, forfeiture of ten dollars per day
for delay beyond that time was to be deducted from the last payment, it was
held, in an action to recover the balance due, that the owner was entitled to
deduct the ten dollars per day as stipulated damages, and that he need not
obtain a certificate from the architect that the work had not progressed
with sufficient speed."
When a contract provides that the contractor shall forfeit a certain
amount for each day's delay in completing the structure after the day fixed
for completion, if he does not complete it by that day parol evidence that
the owner's superintendent in ordering extra work stated that he would not
exact the forfeiture is admissible, as tending to show a waiver ol such pro-
vision, but not for the purpose of showing a waiver in respect to other-
matters.'
^McLeodv. Genius, 31 Neb. 1. Siipp. 738; Smith v. Munch (Minn), 68-
2 Hexter v. Kuox, 39 K Y. Super. Ct. N. W. Rep. 19.
109. ^ Wright v. Meyer (Tex.). 25 S. W. Rep..
2 See Criminal Conspiracies. Boycotts, 1122 [1894], and see Wood v. Boney (N..
and Strikes in Amer. & Eng. Ency. Law, J.), 21 All. Rep. 547.
Vol. 4, p. 608; Vol. 2, p. 512, and Vol. 24, « Carter v. Laudry, 3 Prigsley & B. (N..
p. 123 B) 51R[1880]
* Milliken v. Keppler (Sup.), 38 N. Y. ■> O'Keefe v. St. Francis' Church, W
* See Sac. 686, infra.
274 ENQINEERINQ AND ABGHITECTURAL JURISPRUDENCE. [§ 326.
When the owner himself has assured a contractor, while he is per-
forming work under his contract, that the stipulation for the forfeiture of
liquidated damages will not be enforced if he fails to complete the work
within the time specified, and there is no proof that the owner actually suf-
fered damages, a jury may be justified in returning no damage for delay.*
In the same manner a verbal agreement may be proved to show an exten-
sion of the time of performance of a written contract.^* If it be pro-
vided that if the work should be delayed for any reason other than by the
written consent of the chief engineer a certain sum as liquidated damages
shall be paid, the engineer cannot extend the time for the completion of
the work by oral agreement, especially when the law requires that "all
<;ontracts relating to city affairs shall be in writing. '' ^
A building contract provided that in case of uoncompletion by a cer-
tain time the builder should pay a certain sum as liquidated darfiages.
After default the parties made another contract providing that if the
l)uildings were not completed by a certain day the "sum or penalty''
due under the former contract should be a stipulated amount " by way
of liquidated damages." After a second default the parties entered into a
third contract which recited that the builder claimed that the " penalty '*
should not be exacted for certain reasons, and settled all other questions
between the parties " except the one question of penalty," and it was held
that the amount agreed to be paid in case of default was not a penalty but
liquidated damages, from which the builder could not be relieved on the
ground that performance was prevented by act of God.*
If the contractor has abandoned the contract, and the owner has caused
the work to be substantially completed by the time specified and at the
contractor's expense, then the provision for liquidated damages for delay
in completion will not be enforced.' If when the contract stipulated that
the builder should pay $10 per day as liquidated damages for every day's
delay after a certain date, and after that date, and before the building was
finished, the owner entered and occupied a part of it, the damages are
recoverable onlj/ from the time the building was agreed to be done to the
time the owner entered it.'
If clauses for liquidated damages for delay in completion of a piece
of work are inserted in the contract, there is a presumption raised thereby
that delay was anticipated, if not expected, and therefore if it occurs, it will
not amount to a breach of the contract. It has been held, therefore, that
<a contract which contained a clause for liquidated damages for delay in
€onn. 551 [1890], and see Ferriert). Knox ^Ward v. Hudson R. Bldg. Co. (N. Y.),
€o. (Tex.) 33 S. W. Rep. 896. 26 N. E. Rep. 256 [18911.
»Erskine??. Johnson (Neb.), 36 N. W. * McKee v. Rapp (Super.), 35 K Y.
Hep. 510 [1888]. Supp. 175.
^Luckhart 1). Ogden, 30 Cal. 547. « Collier v. Betterton (Tex.), 29 8. W.
3Malone v. City of Piiiladelphia (Pa.), Rep. 467.
:23 Atl. Rep. 628 [1892].
*See Sees. 123-131, supra, and Sees. 724-726, infra.
§ 328.] CONTRACT STIPULATIONS. 275
completion, by necessary implication allowed the contractor a further time
beyond that specified for completing the works on condition of his paying
the liquidated damages/ Without the clause for liquidated damages the
failure to complete in time might have been a breach of the contract on
the part of the contractor.' * Equity does not generally consider time of
performance so much the essence of a contract that if completion be
delayed a few days no compensation can be had.' The owner is entitled
to the damages he has suffered in consequence of the delay.*
Contractors have been relieved from the payment of liquidated damages
when the delay or their failure to fulfill their obligations was due to an in-
junction/ and they have been held to be entitled to an injunction against
trespassers who prevent them from prosecuting their work, as they have no
adequate remedy at law to avoid the penalties imposed for delay, and an in-
junction avoids a multiplicity of suits.*
327. Provision that a Certain Per Cent, may be Retained for Repairs.
Clause: "The part of the second part hereby agree. . . that the
said parties of the first part shall be, and they hereby, are authorized
and empowered to retain out of the final installment of money which
shall become due and payable to the said part. ... of the second part
under this agreement, a sum equal to per centum of the whole
amount of money payable by the parties of the first part to the
part. ... of the second part, under and according to the terms of this
contract, and to expend the same in the manner herinafter provided
for, in making such repairs to the works done under this contract as
the engineer may deem necessary."
328. Provision that Contractor shall Replace Poor or Defective Work and
Materials, and in Case of Neglect, that Owner may Replace them at Con-
tractor's Expense.
Clause: "And it is further agreed, that if at anytime during the
performance of the work herein agreed to be performed, or during
the period of one year from the date of the final completion and accept-
ance of the same, any of the works constructed under this agreement,
or any auxiliary works or structures which may have been disturbed in
the execution of this contract, shall, in the opinion of said engineer,
require to be reconstructed, regraded, or repaired, the said company or
owner shall notify the said part .... of the second part, in writing, to
make such repairs, and if the said part.... of the second part shall
neglect to commence the work of making such repairs and prosecute
the same to the satisfaction, of said engineer within hours from
the date of the service of such notice, then, and in every such case, the
' Folsom Ti. McDonough, 6 Gush. 208; Lloyd's Law of Building 59.
Farnham r>. Ross, 2 Hall 167; and see * Lucas «. Godwin. 3 Bing. N. C. 737;
Legge v. Harlock, 12 Q. B. D. 1015. Lindsev v. Gordon, 13 Me. 60.
^- 8ee also Sinclair «. Tallmadge, 35 » The Phil. Wil. & Bal R. Co. t? How-
Barb. 602. ard. 13 Howard R. 4; see also Derby «.
=« Roberts v. Berry, 2 DeG. M. «fe G. 284; Johnson, 21 Vt. 17; but see Matthewson v.
Warren v. Mams, 7 Johns. 476; Homan v. Grand Rapids (Mich ). 50 N. W. Rep. 651.
Steel, 26 N. W. Rep. 472 ; Porter v. Stew- « primer v. Israel (Mont.), 33 Pac. Rep.,
art, 2 Ark. 417 ; and English cases in 134.
* See also Sec. 731, infra.
276 ENOIJVEEBmO AND ARCHITECTURAL JURISPRUDENCE. [§ 329.
said company or owner shall have the right to employ such other per-
son or persons as they may deem proper to make the same, and to pay
the expense thereof out of any money then due or which may there-
after become due to the said part .... of the second part under this con-
tract, or out of the said amount retained for that purpose by the said
parties of the first part/'
329. If Works are in a State of Good Repair after a Certain Time, Owner
will Pay in Full.
Clause: "And the parties of the first part hereby agree, upon the
expiration of the said period of one year, provided the said works shall
at that time be in good order and repair, which fact shall be deter-
mined by a certificate to that effect signed by the engineer, to* pay to
the said part. ... of the second part the whole, or such part of the sum
last aforesaid as may remain after the expenses of making the said
repairs, if any, in the manner aforesaid, shall have been paid therefrom.''
330. Provision that Contractor shall Maintain Works in Working Order
and in Complete Eepair for a Period Named.
Clause: "The contractor shall maintain the whole of the works
above described in good working order, free from all faults and fail-
ures arising out of defective or inferior materials or workmanship, and
• in complete repair, for months from the date of the engineer's
certificate of the completion of the same. The company or owners,
nevertheless, to have full power during the said period of
months to repair or renew, should the contractor fail to do so when
called upon, and to collect from the contractor the amount so expended
from time to time, on the certificate of the engineer, in any court of
competent Jurisdiction. The certificate of the engineer to be final as
to the necessity for repairs being made and the amount expended on
such repairs."
331. Provision that. Notwithstanding any Inspection or Certificate
Hade, the Contractor shall be Responsible for Defective Work and Materials.
Clause: "Provided that, notwithstanding any inspection that has
been made or certificate that has been given by the said architect for
the time being, if any bad work or defects, contrary to the terms of
this agreement, shall be discovered months after the completion
of said work, no further payment, if any be due, shall be made to the
builder or contractor, but he shall make good all such defective or bad
work, in accordance with the stipulations herein contained, within
days after notice in writing from the owner; or, in default,
the owner may do so, and the cost and expense incurred in such a case
shall be paid by, and be recoverable from, the contractor.* *
332. Provision that Contractor shall Amend and Make Good all Defective
Work and Materials.
Clause: " Any defects, shrinkage, and other faults which may appear
within months from the completion of the building, and arising
* It has been held that under a contract to return it to be repaired a second time.
to repair machinery and " guaranty it Electric S. & C. Co. v. Consolidated L. <Sl
fully," the owner, in case of failure of the By. Co. (W. Va.), 26 S. E. Rep. 188.
machine to work after repair, is not bound
*
See Sees. 463-468, infra.
§ 334.] CONTRACT STIPULATIONS, 277
out of defective or improper materials or workmanship, are, upon the
direction of the architect, to be amended and made good by the build-
ers at their own cost, unless the architect shall decide that they ought
to be paid for the same ; and in case of default, the employer may
recover from the builders the cost of making good the works/'
333. Clauses for Repair. — Clauses for repair have the same binding effect
tis the original undertaking to build, and are governed by the same laws and
rules. AVhat has been said in regard to the plans and specification, the au-
thority and duties of the engineer, and the many other topics treated, will
generally apply to this stipulation for repairs.
Some questions arise on work for municipal corporations whose charters
frequently require that the cost of maintenance of works shall be defrayed
by the municipality and new improvements shall be paid for by owners of
property benefited.
334. Provision for Repair May be Objectionable as Creating an Addi-
tional Burden for an Improvement. — Few contractors or engineers would see
anything objectionable or illegal in such a clause for repairs, yet in a con-
tract for improvements, as of a city, which are to be paid for by assessment,
it has been held objectionable, and so much so as to vitiate the assessments
made to pay for it. A requirement in a contract for a public improvement
which imposed an additional burden upon property owners not authorized by
the charter or statute under which the work was done was held to vitiate the
assessments for the improvement, and therefore to destroy the fund from
which the contractor was to be paid for his work. The fact that the require-
ment, as one requiring the work to be kept in repair, was shown, by testi-
mony of the contractor and that of others, not to have increased the amount
of the successful bid, does not remedy the evil, since other bidders might have
bid less if the contract had not contained such a requirement.^ If the city
■charter require that the expenses of repairing streets shall be paid from the
ward fund, a provision in a paving contract requiring the contractor to keep
the pavement in good repair for five years renders the assessment there-
for against the property owners invalid.' Such a provision has been held
not a mere agreement to repair, and therefore objectionable, as imposing
upon the property owners assessed for the pavement a burden that should
be borne by the city, but it was held an agreement to construct in the first
instance a pavement good for five years.' Some courts have held that the
ordinance is not invalidated, nor the assessments vacated, as the guar-
anty to keep in repair may be detached or separated from the new con-
struction."
'Excelsior Paving Co. «. Pierce (Cal.), 33 'Barber Asphalt Pav. Co. v. Ullman
Pac. Rep. 727, and 34 Pac. Rep. 116; (Mo. Siip.\ 38 S. W. Rep. 458; Burgess &
Brown v. Jenks (Cal.), 32 Pac. Rep. 701; Gsintt, JJ., dissenting; semble Co e v. Peo-
contra. Barber Asphalt Pav. Co. -w.Ullmaa pie (111. Sup ), 43 N. E Rep. 607.
<Mo. Sup.), 38 S. W. Rep. 458. "Cole v. People, supra; Fehler v. Gos«
«Boyd V. City of Milwaukee (Wis.), 66 nell (Ky.), 35 S. W. Rep. 1125.
I^. W. Rep. 603.
CHAPTER XII.
THE ENGINEER OR ARCHITECT AN ARBITRATOR, UMPIRE, OR
REFEREE.
HIS DECISION" AND CERTIFICATE MADE FINAL AND CONCLUSIVE WITHOUT
EECOURSE OR APPEAL TO OTHER JURISDICTIONS. LEGALITY OF CLAUSE,
835. Provision that Engineer's Decision and Certificate shall be Final
and Conclusive without Recourse or Appeal.
Clause: "The decision of the engineer on all points and matters con >
nected with this contract and specification shall be final and conclusive^
whether as to the interpretation of the various clauses, the measure-
ments, extra work, quantity, quality, and all other matters and things
which may be in dispute ; and from his decision there shall be na
appeal.*
336. Provision that Engineer or Architect shall Determine all duestiona
in Relation to Work, and His Decision shall be Final.
Clause: "To prevent all disputes and litigation, it is further agreed
by and between the parties to this contract, that said engineer shall in
all cases determine the amount or the quantity of the several kinds of
work which are paid for under this contract, and he shall determine all
questions in relation to said work, and the construction thereof, and he
shall in all cases decide every question which may arise relative to tha
execution of this contract on the part of the said contractor, and his esti-
mate and decision shall be final and conclusive; and such estimate and
decision, in case any question shall arise, shall be a condition prece-
dent to the right of the party of the second part to receive any money
or compensation for anything done or furnished under this agreement.f
836a. Provision that Architect's Certificate shall be Binding and Conclu-
«ive wifliout Recourse or Appeal, and a Condition Precedent to Payment.
Clause: "And it is further mutually agreed and understood that tha
decision of the said architect, or such other architect as aforesaid, upon
all matters relating to the amount, quality, classification, state, or con-
dition of the works actually executed and upon all questions, doubts,,
or disputes in regard to the construction or meaning of the said plans,,
elevations, sections, and specifications, and in regard to all matters in
any wise relating to anything to be done under this contract, or to any
* See Sees. 86, supra, and 344, 345. and 406, infra,
\ See Sees. 342-345, 354, and 407-416, infra.
278
§ 339.] CONTRACT STIPULATIONS, 279
changes, alterations, or extra work undertaken m connection herewith,
as certified by hint in writing, shall be binding and conclusive on both
parties, except so far as they may be amended and corrected in the
final estimate and certificate, which final certificate shall be conclusive
in respect to every claim, right, or pretext, without recourse or appeal,
and a condition precedent to any liability of the owner to pay for said
works, and to any right of the contractor to any claim in respect
thereto, under this contract, or in law, or in equity/'
837. Provision that Work shall be Done and Completed to Satisfaction of
Owner.
Clause: "And the said contractor hereby agrees and undertakes to
complete the said works to be performed under this contract, and each
and every part thereof, and all changes, alterations, and extra work in
connection therewith, in a good and workmanlike manner and in every
particular to the entire satisfaction and acceptance of the said owner,
whose acceptance of the work as satisfactory shall be a condition prece-
dent to any liability on his part to pay, and any right on the part of the
contractor to demand compensation in respect thereto.''
338. Necessity and Propriety of Such Clauses. — These or similar clauses
are invariably found in engineering contracts, and the frequency of their
use is some evidence of their necessity. Every builder, corporation, and
engineer having experience in construction knows their value and how
requisite they are to the successful completion and settlement of a piece of
work. It is a provision found in almost every engineering contract in the
history of construction in England and America, and to-day its validity
and binding effect are not fully established. The facts that the amount of
work to be done and the compensation to be paid are both to be arbitrarily
determined by the owner or his agent furnish strong reasons why the
validity of such a clause should be tested and its fairness be questioned.
A clause that gives such arbitrary and complete power to determine
questions so important, and so likely to cause hardships if not honestly
exercised, to one whose interests may be directly opposed to the contractor,
would probably be the one to be most frequently assailed and the one to be
most easily defeated. It is a clause, too, as before intimated, about
which much diversity of opinion has been expressed, and to-day the courts
are not fully agreed upon what ground to support it, and in some excep-
tional cases whether to support it at all.
339. Grounds upon which the Stipulations are Attacked. — The validity
of such stipulations has been attacked upon numerous grounds, all of which
may be discussed under three topical heads, viz. :
1. Thit they do not possess the essential features of a binding contract,
and are therefore void.
2. That to support them is in violation of the constitutional rights of
citizenship, as tending to oust courts of their proper jurisdiction.
3. That as submissions to arbitration they are revocable at any time
before the award is made, and therefore are not enforceable ; that the
280 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 340.
referee in his usual capacity cannot be an arbitrator or judge, and his decisions
should not therefore be given the conclusive effect of an award.
Before proceeding then to discuss the clause in parts, it is proposed first
to consider these objects to its validity, and the means by which courts have
sought to sustain these provisions, and the difficulties that have been met.
340. Does Such a Stipulation Contain the Essential Features of a Bind-
ing Contract, or those of a Condition? Work to be Done to the Satisfac-
tion of Owner or Company.— It is a general principle of the law of
contracts that a promise cannot be conditional on the mere will of the prom-
isor, for by promising to do a thing only in case it please himself, he is not
bound at all.* Such an option to do or not to do, as it shall please the prom-
isor, is not an obligation such as is required in a contract; it is nullity;
an agreement to do certain things cannot be modified by a concurrent stip-
ulation that the performance of the act shall depend upon the fancy,
caprice, or disposition of tho party himself, or his agent; a contract cannot
be binding on one party and make the obligation of the other optional
with himself; both parties to an executory contract must be bound.' It is
a principle of our jurisprudence that no man can be a judge in his own
cause. One party cannot reserve to himself the right to decide in a case
involving his own wrong." If these principles of contract and of the law
are to be applied to a stipulation that the contract shall be executed to the
satisfaction of the employer, or of his engineer, on the assumption that an
engineer is a servant or agent of the employer, it would seem that the pro-
vision must fail.
Agreements for services where the remuneration is left to the discretion
of the employer are of this character, and create no binding obligation, and
a covenant by a person amounting in terms to a promise to pay money to
himself has been held to be no contract.* It has been held that an agree-
ment by a builder to build such a house as he should think fit binds him to
do nothing,* from which it might reasonably be inferred that a promise by
an owner to pay for such a house [or works] as he should choose to accept —
i. e., a house for works] to his satisfaction — will be held equally invalid."
The acceptance, approval, or satisfaction of the owner is optional with him-
self by the terms of his agreement, as much so, it would seem, in the one
case as in the other.
Courts will perhaps apply the strict rules of law to cases where no injury
will result to either party, and both will be left in the same position as
before the contract; or where it is impossible to require the builder to build
^ Loake's Digest of Law of Contracts 637 Disjest of Contracts 637.
riSrS]. » Smitli V. B. C. & M. Ry., 36 K H. 159
2 King V. Warfield, 8 Cent. Rep. (Md.) [1858]; Lydick «. Railroad Co., 17 W. Va.
801: Athe v. Bartholomew (Wis.), 33 N. 427.
W. Rep. 110. « Gray v Central R. Co , ll Hun (K Y.)
3 Bryant «. Flight, 3 Jiir. 681 [1839]; 70. lield a provision making the owner the
Milnor v. Georgia R. Co., 4 Geo. 385. sole arbiter, valid.
^Faulkuer v. Low, 2 Ex. 595; Leake's
§ 340.] CONTRACT STIPULATIONS. 281
a structure the exact character of which canjiot be determined; or where
damages cannot be assessed because the subject-matter of the controversy
is not known. In such cases the courts declare that no contract existed,
but when an owner has agreed to pay for a structure completed to his
satisfaction, and he has stood quietly by and knowingly permitted a builder
to erect it in accordance with his views and suggestions, certainly he should
not be permitted to render the builder's efforts fruitless by arbitrarily and
capriciously refusing to accept and pay for it when completed. To avoid
such injustice the courts have construed such stipula'tions to mean that the
structure shall be completed, or the work done, to the owner's reasonable
satisfaction.^ ■
If not so construed the covenant must fail, for the owner's obligation
would depend upon his own will or pleasure, and be of no binding effect.
Such stipulations have been sustained, where they could de construed to
mean to the owner's reasonable satisfaction, the courts undertaking that the
right of approval on which the contract depends should be exercised in a
reasonable, and not arbitrary or capricious manner, for the purpose of
defeating the contract.' It is sufficient if the work has been performed in
such a manner as should have satisfied the owner.' The contractor need
only show that the work was done in a proper manner, and in a way that
should have satisfied the owner, as no question of personal taste or individual
preference is involved.* For public work performed under a parol contract
for whatever "recompense the board might allow as right and proper," it
was held that a contractor may sue for a reasonable compensation, even
though the board tender what it considers right and proper/
The cases where work and materials have been incorporated into a
building upon the land of an owner, and which in consequence belong to
the owner, should be distinguished from those cases where the contractor
has agreed to build a chattel for a person which can be returned to the
maker, or those cases where the parties may be put in statu quo.
If a mechanic undertakes to make a machine that shall be satisfactory
to the purchaser,' or an architect to prepare plans,' or an artist to make a
plaster bust of a deceased relative,® or a portrait or photograph,' or a tailor
^ Langdell's Summary of Contracts p. Supp. 443; and see Stadhard « Lee, 3 B. &
1006; Keeler v. Clifford, 46 N. E. Rep. S. 364; Andrews «. Bellfield, 2 C. B. (N. S.)
248; affirming 62 111. App 64; Hawkins v. 779
Graliaui. 149 Mass. 284; Sloan v. Hayden, » Bird v. McGahey, 2 C. & K. 707; butsee
i |0 Mj,s^,. 143; and other cases in 29 Amer. Butler v. Pucker , 24 Wend. 447.
& Eni;. Ency. Law 928; 3 Amer. and Eng. « Wood Macli. Co. v. Smith (Mich.), 15
EiK'y Liw 845, note. K W. Rep. 906 ; Singerly v. Thayer, 108
2 Dallman ®. King, 4 Bing. (N, C.) 105; Pa. St. 291, an elemtor ; Gray v. Rail-
Parson v. Sexton, 4 C. B. 899; Braunstein • road Co., 11 Hun 70, a steamboat.
V. Accidental Ins. Co., 1 B & S. 782; Doll ' Moftatt v. Dickson, 13 C. B. 543 ; Mof-
«. Nol)le (N. Y.), 22 N. E Rep. 406 [1889]; fatt v. Laurie, 15 C. B. 583.
8. 0 18 Abb. N. Cas. 45 [1886]. «Zaleski v. Clark, 44 Conn. 218.
3 Logan V. Berkshire Apartment Assn., 'Moore v. Goodwin, 43 Hun 534 [1887];
18 N. Y. Supp. 164. Hoffman v. Gallaher, 6 Daly 42 ; Gibson
4 Hummel v. Stern (Super.), r6 N. Y. v. Cranage,' 39 Mich. 49.
282 ENGINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 340.
to make a suit of clothes/ to the satisfaction of a customer, it is held that
the mechanic or artist cannot recover for the article made if the purchaser
is in good faith dissatisfied.' In such cases it is not enough that he ought
to be satisfied with the article. He must be satisfied, or he is not bound to
accept it.'* Neither the maker nor the jury can decide that he ought to
be satisfied with the article.*
If it be clear that the purchaser has reserved to himself the unqualified
option, and has not left his freedom of choice exposed to any contention or
subject to any contingency, the stipulation will be the law of the case. The
cases of this class are usually those that involve the feelings, taste, or sensi-
bility of the purchaser and not the grosser considerations of operative fitness
or mechanical utility which are capable of being seen and appreciated by
others.^
In some cases where it is not apparent that the purchaser has reserved
entirely to himself the exclusive right to decide arbitrarily whether the
article is to his satisfaction, he may be supposed to have undertaken to act
reasonably and fairly, and to found his determination upon grounds which
are just and sensible, thereby raising a necessary implication that his decis-
ion in point of correctness shall be open to the consideration and judgment
of judicial experts.'
From these cases it might appear, at first sight, that what has been said
about the binding effect of such agreements had no force or did not apply
to these cases. The argument holds as well in the cases of chattels as in
those of buildings. In neither case is there a contract created, but simply
a declaration of terms that there shall be no debt for the article unless it
suit the intending purchaser and he accepts it. In the case of a building,
which cannot be returned to the builder, the law considers that the owner
has been benefited or enriched, and therefore imposes a contract upon him
to pay the builder what it is reasonably worth to the owner, while with
plans, a coat, or a portrait, the purchaser is not benefited nor enriched if he
does not accept the article, though the maker may be damaged. The law
does consider the damage to the maker since he incurred it at his own risk,
and knowing that the article might not be accepted. Since one of the two
parties must suffer, and there is no just reason why it should be the cus-
tomer, it is charged to the maker of the article ; besides there is usually no
» Brown v. Foster, 113 Mass. 136. '*]yioore v. Goodwin, 48 Hun 534.
2 Marshall v. Amos, 11 Ohio Cir. Ct. ^ See note, 2Q1^. W. Rep. 744 [1886], c^^
Rep. 363 ; B. «fe O. R. Co. v. Brydon, 65 ing Rossiter v. Cooper, 23 Vt. 522 : Tyler
Md. 198. V. Ames, 6 Lans. 280 ; Hart v. Hart. 22
' Silsby Man'f g Co. v. Town of Chico, B.irb. 606; Taylor v. Brewer, 1 Maule &
24 Fed. Kep. 893; citing McCarren v. Mc- S. 290, and otJier eases supra.
Nulty, 7 Gray 139; Heron v. Davis. 3 « Daggert u Johnson, 49 Vt. 345 ; Hart-
Bosw. 336 ; Hallidie v. Sutter St. Ry. Co., ford, etc., Co. v. Brush, 43 Vt. 528.
63Cal. 575.
* See Sec. 675, infra
§ 341.] COJSTRACT STIPULATIONS, 283
standard by which to measure the value of the misfit or rejected article. It
would be difficult to assess the damage.
841. Work to be Done to the Satisfaction and Approval of Engineer
or Architect. — It is more frequent in construction contracts to stipulate that
the work shall be completed to the satisfaction, approval, or acceptance of
the engineer, architect, or agent of the employer or owner than to that of
the owner himself, and to further mutually agree that he shall determine
the amount, quantity, and quality of the materials and work, and the
amount that the employer shall pay, and that the contractor shall receive,
on account of his contract. As the engineer is almost always an employee,
servant, or agent of the owner, and as companies can act only by or through
their officers or agents, who for purposes connected with their business
speak the voice of the corporation, it may well be questioned if a decision
by the engineer is not, in such cases, the decision of the company itself. It
has been held by the English courts that for some purposes at least the
engineer, when employed and paid by one party [the company], is the rep-
resentative of that party [the company]; that there is no intention that he
should be indifferent between the parties; that when it is stipulated that
certain questions shall be decided by the engineer, it is in fact a stipulation
that they shall be decided by the company; that the company does not hold
out, or pretend to hold out, to the contractor that he is to look to the engi-
neer in any other character than as the impersonation of the company.*
The facts that frequently the questions are to be decided by the incum-
bent of an office, for the time being, of the company, that he is not a
particular individual in whom the contractor might have confidence, but
that he might be any one whom the company might select for the office,
and further, that the contractor has no voice in his selection, all tend to
strengthen the idea that the engineer is usually the representative of ono
of the parties to the contract." In support of this it has been held that
when work was to be performed to the full satisfaction of the architect and
to the satisfaction of the owner, it was sufficient if the architect in good
faith accepted the work, and that his acceptance bound the owner.'
If this view be accepted, the stipulation must fail, for though the courts
may construe a contract for work to be completed to one party's satisfaction
to be to his reasonable satisfaction, they could hardly contend that an agree-
ment to pay such a price as the party himself, or his agent, should deter-
mine, was a contract to pay a reasonable price. The courts have not, it
is believed, gone thus far in their own construction of express contracts,
though they have in cases whero no contract at all has been made.
^Rnnffer v. Gt. Western Ry. Co., 5 H. « Smith t.. B.C. & M Ry., 36 N. H 459;
L. Cas. 71 [18541 : Williams?^. Chicaffo, S. HiH v. So. St. Ry. Co IJ J"''-. (N S.) 192
F. & C. Ry. Co.\Mo.). 20 S. W. Rep. 631 ; ^Tetz v. Butterfield 54 Wis 242 ; and
Snnith «. Smith (Com. PI.). 27 N. Y. Supp. see Vermont St. Ch. v. Brose, 104 111. 206,
379 • semhle, Danville v Pomeroy, 15 Pa. nrcMteci or superintendent ; and Wildey v,
St 151 [1S5'0] : hut see Consaul v. Sheldon Paw Paw, 25 Mich. 419.
(Neb.), 52 N. W. Rep. 1104.
284 ENGINEEBINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 342.
In its literal interpretation such a contract cannot stand upon pure
principles of contract. The contractor would be under obligations to per-
form his part according to the terms of the agreement, and to the satisfac-
tion of the company or its engineer, who might pay him what, in their
judgment, they should consider proper. Such a stipulation would be a
repugnance and would render the contract itself as a mode of legal redress
wholly idle.^
342. Owners' Liability Depends upon his Promise to Pay and not upon
the Execution of the Work. — The courts evade the direct force of these argu-
ments by making the liability of the owner or the company to pay depend
not upon the execution of the work, but upon the promise to pay ; the
promise being postponed or made contingent upon an event which fre-
quently has no necessary connection with the merit of the work. They
allow the promisor to make his obligation to pay depend upon the existence
or occurrence of an event which is often absoliitely within the power of the
engineer, a person employed and paid by the owner. This contingent lia-
bility or indebtedness should be distinctly set forth in the contract, for the
courts will avoid such a construction if they can and the terms of the con-
tract will permit such an interpretation. The law distinguishes between a
debt created by a conditional promise itself and a conditional promise to
pay a debt already existing or created by some other agencies. As Professor
Langdell has said in his Summary:' ** When a conditional promise is made
to pay a debt, or when a conditional covenant is made to pay a debt which the
covenant itself does not create, though no action will lie on the promise or
covenant until the condition is satisfied, it does not follow that an action
will not lie for the debt itself without regard to the condition/' " Indeed,''
says he, *'as the covenant does not create the debt, it follows that the debt
will not be at all affected by any condition which is annexed to the covenant
or promise merely. In such cases it is necessary, therefore, to see that the
condition is annexed to the debt itself as well as to the promise or covenant."
*' In building contracts the owner's indebtedness for the price agreed
upon is not created by his promise to pay it, but by the performance of
the work. Such indebtedness will arise, therefore, and become payable the
moment the work is completely performed, unless it be expressly made
conditional or the payment of it be expressly postponed ; and it does not
necessarily follow that because the owner promises to pay the debt upon a
condition— e. g., upon the production of the architect's certificate— that the
debt itself is subject to the same condition. Such a condition is very
harsh, for it not only makes the payment for work done dependent upon an
event which has no necessary connection with the merit of the work, but
upon an event which is absolutely within the power of a person (engineer
'Herrick d. Vermont Cent. Ry. Co., 27 *L:mgdtill's Summary of the Law of
Vt «73 ; Kistler «. Ind. & St. L. R. Co., Contracis.
88 Ind. 460.
f 343] CONTRACT STIPULATIONS, 285
< r architect) employed and paid by the party who makes the condition.
The court should not, therefore, give a condition such a construction if it
can fairly avoid doing so. It must be admitted, liowever, that a condition
annexed to a promise to pay a debt will commonly, upon the true construc-
tion of the instrument in which it is contained, extend to the debt itself.*
There is a difference also between a promise to pay a debt on a certain con-
dition and a proviso that the debt shall be paid only upon a certain
condition,""* for the latter necessarily renders the debt itself conditional.
This is without doubt the ground upon which courts sustain the clause
of a construction contract, that the engineer shall estimate, inspect, approve,
and determine the amount due and to be paid for work done. The
indebtedness itself must be made conditional upon the occurrence of the
event and the owner's liability be made a condition precedent to the produc-
tion of the engineer's or architect's certificate to that effect. AVhen this is
done there is no debt which can be sued for until the act stipulated for has
transpired and the engineer or architect has ascertained what is due and
signified his acceptance in the manner required by the contract, for there is
no contract to pay in any other way.^ The practical effect of such a stipula-
tion, it would seem, is not to pay a sum of money for the work performed,
but to be an agreement to pay for the presentation of the engineer's
certificate.
The objection that such a clause is not binding, though well taken in
certain cases, would seem to have no effect when the estimate, approval, and
certificate of the engineer are made a condition precedent to the employer's
liability. If no promise be made, except upon the happening of certain
events, then no obligation exists until the event has come to pass, and if the
contractor undertakes lo perform work and supply materials under such an
understanding, he must be bken to have done it gratuitously and to have
run his chances of securing the certificate necessary to entitle him to any
payment for his work. Yet if the condition makes the payment of the
debt dependent upon the will or pleasure of the debtor, it is repugant to the
debt itself, and hence will either destroy the debt or the condition itself
will be void." If the debt has no existence until the condition is per-
formed, then it cannot destroy the debt, and the courts are not fully agreed
that the condition is void.
343. Act of Third Party as Engineer or Architect May be Made a
Condition Precedent to Owner's Liability. — However much doubt there may
be as to the validity of the clause when the debtor liimself is to perform
the condition, there is no doubt but that a provision that work shall not be
paid for unless it be done to the satisfaction of a third person (engineer or
' Langdell's Cases on Contracts 487, 572. ^ Godefroi & Short on Ry. Cas 94
'Langdell's Summary of Contracts, ^ Ly^jig(jgii's Summary, Conditions Prece-
•* Conditions Precedent." dent.
^ *See Sees. 354, 410, 414, 769, 781, infra.
286 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 344.
architect) is good and binding, even though such person be employed and
paid by the party making the provision, or even though he be an officer, a
stockholder,* or a lessee' of the works, and therefore directly interested.
Some courts discriminate between a condition to pay only upon the
promisor's own acceptance or determination, and upon that of his agent,
engineer, or architect ; but when that engineer or architect becomes a stock-
holder or lessee of the company the destinction becomes a refinement, and
it is believed that the true ground for supporting the stipulation is to be
found in some stronger and better purpose than one narrowed to such dan-
gerous limits.
. These are the grounds upon which courts have put these provisions, and
every well-draughted contract will make the decision, estimate, acceptance,
etc., of the engineer or architect a condition precedent to the owner's
liability and of the contractor's right to recovery; and, though it may be
safe to make a stipulation that work shall be completed to the reasonable
satisfaction, approval, or acceptance of the owner or company, it is not safe
to make the payment of the price, or its amount, or the obligation of either
party depend upon his or its own determination, estimate, or decision.
344. Constitutionality of the Stipulation. — Some courts have questioned
the constitutionality of a stipulation to abide the result of the engineer's
decision as final and conclusive without recourse to courts of law or equity. It
is frequently declared from the bench that parties cannot by private agree-
ment in advance of a controversy oust the courts of their jurisdiction; ' that
although a matter in controversy or a pending civil suit may be finally
submitted to arbitration or to the decision of a single judge, yet parties
cannot by an agreement in advance, when no dispute or controversy has
yet arisen, forfeit their rights to a proper adjudication in the appropri-
ate tribunal established by law." Courts of equity will not enforce such
an agreement.^
» Ranger v. Gt. Western Ry., 5 H. of L. * Appeal of Rea, 29 Alb. L. J. 138 [18831 :
Cas. 71 [1854] ; B. «& O. R. R. Co. v. Polly White x. Middlesex, 135 Mass. 216 ; Kist-
Woods, 14 Giatt. 459; Men on Ka v. Co. v. ler v. I. & St. L. Ry. Co., 88 Ind. 460-
Fenlon, 4 W. & S. 205 ; The Memphis, Dugan v. Thomas, 79 Me. 221 [1887] ;
etc., R. R. Co. ■». Wilcox, 48 Pa. St. 161 ; Bauer 'o. Sampson Lodge, 102 Ind. 262 •
contra, Miinor-o. The Ga. R. R. Co., 4 Ga. Nate v. Ham. Ins. Co., 6 Gray 174 ; Hobbs
385; B. & O. R. R. Co. v. Canton Co., 17 v. Man. Ins. Co., 55 Me. 421 ; Scott d
All Rep. 394. Avery, 4 H. & L. Cas. 811 ; Horton v.
2 Hill « So. Staff. R. Co. 11 Junst. (N. Sayer, 4 H. & N. 642 ; Thompson v. Char-
S)J92. ^^ ^ _ ^ nock, 8 Fern. 139 ; Graham «). Ketaltas, 17
3L. E. & St. L. Ry. Co. ■». Donne- N. Y. 491,496; Kill v. Hollister 1 Wils.
gan. 111 Ind. 179 [1887] ; s. c, 12 N. E 129 ; Walker v. Beecher (Com. PI.) 36
Rep. 153 ; Fidelity & C. Co. v. Eickhoff N. Y. Supp. 470
(Minn.). 65 N. W. Rep. 351; Balti- '^ Gourley «j. Duke of Somerset, 19 Ves.
more & O. & C. R. Co. v. Scholes (Ind. 431 ; Agar v. Macklew, 2 Sim. & Stn. 418;
App.), 43 N. E. Rep. 156; Sanford Greson ?). Ketaltas, 17 N. Y. 496 ; «n(Z sea
V. Commercial Trav. Mut. Accd. Ass'n Haggart«. Morgan, 1 Seld. 427 ; Sinclair -».
(N. Y. App.), 41 N. E. Rep. 694 ; Miller Tallmadge, 35 Barb. 607 ; Scott v. Corp'n
V. Chicago, B. & Q. R. (C. C), 65 Fed. of Liverpool, 8 De G. & J. 334; hut see D.
Rep. 305 ; Home F. Ins. Co. v. Kennedy & H. C. Co. v. Pa. Coal Co., 50 N. Y 250
(Neb.), 66 N. W. Rep. 278. [1872], and a collection of cases in point.
§ 844] CONTRACT STIPULATIONS. 287
If parties were allowed to enter into such compacts and agreements for
the settlement of their differences, it would not be long before the law of the
land would be subverted and the country would be governed by the laws of
societies, sects, and clans as various as those of the tribes of Africa. The
socialists would choose to be governed by laws of their own, and 'the Prot-
•estants would abide the decisions of their deacons, the Catholics and Jews
of their priests or rabbis, and the machinery of our courts would be
idle. All these societies and the boards of trade may have their rules, and
membership may be limited to the period during which a member obeys
these rules, but under no circumstances can a citizen forfeit his rights to
<jome into the courts for the protection and enforcement of his rights if he
<5hooses so to do. That right the courts always grant. On the board of
trade the member forfeits his membership, from church societies he is
excommunicated, in Africa and among anarchists he might be put to
death, but in engineering work, when the work is done, the company have
none of these powers or means to hold or punish a contractor, and he seeks
to take his case into court when he is disappointed with the engineer or
architect. Generally a punishment is provided if he fails, neglects, or
refuses to abide by his contract while the work is in progress; but having
•completed the work or worked up some plausible excuse for abandoning
it, he usually feels himself free to do as he pleases. These are some of the
few reasons why contracts are drawn so strictly and why surety or bonds-
men are required. Forfeitures the courts will not enforce. The right to
resort to the courts for protection and relief is a constitutional right guar-
anteed to every citizen. It is a right the courts have said that neither the
state, its legislature, nor an agreement between the parties themselves can
impair.'
Insurance policies and contracts for the construction of engineering
^orks where the questions to be decided have not yet arisen and may never
^rise, are peculiarly within this rule.' It has been applied to a city ordi-
nance which provided that before any person can erect any building, or
:addition thereto, within the city limits, he must obtain a permit from the
building inspector, who may grant or refuse such permit, and from whose
decision there is no appeal, and which subjects such party to a penalty in
-case he builds without such permit. Such an ordinance was held to violate
the constitutional rights of the citizen, and that it made the right of the
•owner of property to improve the same dependent on the decision of the
building inspector.' In this case the decision of the inspector was made
final by ordinance and the restriction was not self-imposed.
' Atlanta & R Co. v. Monc:han. 49 Geo. Masonic Accdt. Assn. (la.), 68 K W. Rep.
^66; Appea of Rea, 29 Alb. Law Jour. 138; 601 ; Sanford v Commercial T. Mut. Ace.
Story Eq. Jnr., § 670; Scott v. Avery, 5 Assn. (Sup.), 38 N. Y. Supp. 512: 8 c,
H. L. C;is. 811 ; and see People v. Haws, 2 41 N. E. Rep. 694, and see la re New York,
Am. Law Reg. (N. S.) 378. etc., R. Co., 98 N. Y. 447.
^ Insurance cases : Knorr v Bates (Com. ^ Q^ty of Sioux Fa'ls v. Kirby (S. D.). 60
Pleas), 33 N. Y. Supp. 691; Prader v. Natl. N. W. Rep. 156. One justice dissented on
288 ENOINEERINQ^ AND ARCHITECTURAL JURISPRUDENCE [§ 345fc
345. Liability may be Postponed until after the Determination of Cer-
tain Facts. — The earlier decisions were quite uniform in deciding that a.
clause providing that certain questions arising, should be referred to a tri^
bunal of the parties^ own selection, to the exclusion of the authority of the
courts, w^s invalid. It was generally so held until 1855, when a decision
in the English House of Lords,^ held that although parties cannot by con-
tract oust the courts of their jurisdiction, they may make the determination
of certain facts and circumstances a condition precedent to any right of
action under the contract.''
This will be recognized as the same rule adopted by the courts to evade
the first objection to the validity of the clause. It has been generally
adopted both in England and America, and although the principle has not
been universally adopted, yet its application to construction contracts for
engineering and architectural works has always been followed. The-
covenant must not be an absolute agreement to oust the superior courts of
their jurisdiction, for such has been held void,* though it may postpone the
right to any suits or actions until after the engineer has determined the
quantities, classifications, values, and other conditions imposed by the
agreement. The parties* may impose conditions with respect to preliminary
and collateral matters, or they may so bind themselves and prescribe the
instruments of evidence as to prevent the court from looking beyond their
agreement, but they must not go to the root of the action.^ When there-
fore the contract discloses nothing more than an agreement generally to
refer any and all disputes to arbitration, it does not prevent the contractor
from maintaining an action in court. It should not refer any and every
matter to arbitration, but provide that the contractor shall not sue nor the
company be liable until the engineer has determined the amount to be
paid. To some this distinction may not be so apparent, and it has not been
established without criticism. As Judge Martin once said in a case setting
forth such a decision: "If parties may arrange [agree] that before any
action is brought an arbitrator [engineer] shall ascertain the sum to be
paid, that seems to be only a circuitous mode of saying that no action shall
be broughf Yet the decision has been followed and is is now well estab-
lished that the parties to a contract may not oust the courts of their
jurisdiction over the subject-matter of their contracts.*
the ground that the law or ordinance does ^ jjoiton v. Sayer, 4 H. «fc N. 643 [1859];
not comtemplate that the inspector or s. c, 5 Jur. (N. 8.) 989.
engineer will act arbitrarily. ■* Holmes v. Ricket, 56 Cal. 307 [1880]:.
» Scott V. Avery. 5 H. of L. Cas. 811. Saucelito Ld. Co. v. C. U. A. Co., 66 Ci.l.
9 Hamilton v. Home Ins. Co., 137 U. S. 253 [1884].
870 [1890]: Chicago, etc., R. Co. v. Stew- ^ Dugan v. Thomas, 79 Me. 221 [1887];
art, 19 Fed. Rep. 5, and cses cited; Ham- Cnimlish «. Wilmington & W. R Co., 5:
ilton V. Liverpool Ins. Co., 136 U. S. 242 Del., Ch. 270 [1879] ; and see Siitro T. Co.
[1889]; Old S. Land Co. v. Com. U. Assur. «. Seg. Bel. Min. Co. (Nev.), 7 Pac. Rep..
Co. (Cal.), 5 Pac. Rep. 232; Gauche v. 271 ; and Gere v. C. B. F. Ins. Co., 23 N.
Lond. Ins. Co., 10 Fed. Rep. 347 ; and see W. Rep. 137.
Tiote, 26 N. W. Rep, 744. «Crumlish v. Railroad Co., supra.
§ 345.] CONTRACT STIPULATIONS. 289
Even before the decision of Scott v, Avery [1855] there was a form in
which a covenant, or condition, or promise might be framed, and which
was common in construction contracts, which would prevent the parties
from maintaining any action until the amount to be paid was ascertained
by a third person. Such were covenants to pay, for the erection of struct-
ures or for the performance of work, such a sum as the engineer or archi-
tect should estimate or think reasonable with a stipulation that no other
sum or sums should be claimed by the contractor/
As before stated, the stipulation or condition should extend to the debt
itself and not merely to the promise, and the decision and estimate of the
engineer be made a condition precedent to any liability on the part of the
owner or company or to any right to recover payment on the pare of the
contractor. The utmost care should be taken in draughting this clause,
as courts have evinced more or less jealously and disfavor with the stipula-
tion. In Massachusetts and Indiana especially have the courts criticised it.'
Insurance policies and contracts of employment have been in special disfavor.
On the other hand, the legislature of New York has considered some such
provision so essential to a construction contract that an act has been passed
authorizing the insertion of a clause for the speedy and equitable adjust-
ment of all questions relative to the performance or alteration of contracts
for public works."
In an agreement by a railroad employee that in case of a breach of the
company's rules and regulations, that the company's president should be
sole judge as to whether the company should retain the whole or any
part of a sum deposited by the employee as liquidated damages, and the
president's certificate should be a final adjudication thereof and bindingand
conclusive evidence in any court that said money had been forfeited to the
company, it was held that such a stipulation was an agreement to submit to
arbitration and an attempt to oust the courts of justice from all jurisdiction
over the whole controversy, and was therefore void."
An agreement that " if any difference, variance, controversy, doubt, or
question should arise between the parties touching or concerning any cove-
nant, clause, proviso, matter, or thing in the said contract contained, then all
and every such matter in difference should be determined by arbitrators
chosen as therein provided, and further, that the parties should not
prosecute any suit or seek any remedy either in law or equity for relief in the
premises without first submitting to such arbitration and reference," was
held not to prevent an action before any reference or arbitration was had. ^
^Pollock. C. B., in Horton v. Sayer, 4 ^ ^1,}^^ ^ Middlesex R. Co., 135 Mnss.
H. & N. 643 [1859]. 216 [1883]; riting Wood v. Hnmphrev, 114
'Kistler v. Ind. & St. L. R. Co, 88 Mmss. 185; Pearl v. Hnrrl , 121 Ma«s. 390;
Ind. 460; White i). Middlesex R. Co., 135 Vass v. Wales, 129 Mass 38; Miller?).
Mass. 316; B. & O. R. Ca v. Scboles (Ind. Chicaoo B. & Q. Ry. (C. C), 65 Fed. Rep.
App ), 43 N. E. Rep. 156, 305.
» Referred to in People r. Benton, 7 Bar- » Horton v. Sayer, 4 H. & N. 643 [1859].
bour 208 [1849] ; Act, May 12, 1847, § 11.
^90 ENGINEEBINO AND ARCHITECTUBAL JURISPRUDENCE. [§ 346.
Here was an agreement not only to forego any suit for the price or compen-
sation, but a renunciation of any remedy at law or equity. The determina-
tion of the engineer was made a condition precedent to any suits or actions,
but not a condition precedent to liability on the debt.
To impose a condition precedent to coming into court, some decisions
require only that the parties shall make the amount to be paid, depend upon
some agreed mode of liquidation or adjustment or reference, holding that
when such a condition is imposed that the amount of indebtedness is not
known until determined, and therefore no action will be allowed, because it
is beyond the power of the court to determine it.' No implied promise to
pay what may be reasonably due can be substituted for such an express
promise, and therefore no obligation to pay arises until the amount can be
determined. The courts say further that such an agreement does not close
the access of the parties to the courts, for the obligation, when it is ascer-
tained, can be enforced only by the courts.
The decisions are numeous to the effect that when a contract provides
that no action shall be brought until after the award of arbitrators, that it
will keep the parties out of the courts until the award is made," and that
the award is a condition precedent to payment or recovery.^ *
It should be stated before closing the discussion of this objection, that
the stipulation above referred to have very rarely been held invalid in engi-
neering contracts. That the decisions adverse to their validity have been
chiefly confined to insurance and general contract obligations where the
difficulties attending their execution do not require their use and support.
Therein may lie the true ground for their support, which is hereinafter
discussed.
346. Is the Agreement a Submission to Arbitration? — The questions
raised by the objections made to the stipulations are: Should such stip-
ulations be considered submissions to arbitration ? Is the engineer or
architect an arbitrator ? And should his decision be given the conclusive
effect of an award ?
In so far as the form and substance of such agreements are concerned, •
there is nothing to deny them the name and character of submissions to
arbitration, nor to prevent their being upheld as such. The objections must
therefore be sought in the circumstances attendant: the date of the agree-
ment with reference to the time when the controvery arose, the subject-
matter, and the persons to whom the arbitration is submitted."
347. Provision that Engineer's Powers shall not be Revoked by Either
Party.— Engineer if Interfered With, may Proceed Ex Parte.
' Appeal of Rea, 29 Alb. Law Jour. 138, » Hamilton v. Liverpool Ins. Co., 136 U.
and cases cited. ' S. 242 [1889].
2 Hamilton v. Home Ins. Co., 137 U. S. ^ ^^^ Russell's Law of Awards, pp. 40, 41,
370 [1890]. and 116.
* /See Sees. 407-416, 2n/^-a.
§ 348.] CONTRACT STIPULATIONS. 291
Clause: "Neither the contractors nor the company shall have any
power to revoke, annul, or interfere with the authority of the engineer;
and if either party shall, in the opinion of the engineer, attempt so to do,
or to hinder or delay the engineer from makingany certificate, order, or
award, it shall be lawful for the engineer, if he shall see fit so to do, to
proceed ex parte, and any certificate, order, or award which may be
made by him thereafter shall be final, binding, and conclusive on the
parties, notwithstanding any attempted revocation by either of them, or
otherwise." *
348. Before the Award is Made, Agreements to Submit to Arbitration are
Revocable.— The element of time and the existence or non-existence of the
controversy is the first serious objection to agreements to submit to arbitra-
tion. Submissions of existing difficulties, the nature and importance of
which are known to the parties to arbitratioUp is a mode of settling disputes
which has been known from the earliest times. It was practised among the
Komans, and is to-day a tribunal recognized in all civilized countries, by
which the rights of nations as well as of individuals are amicably determined,
and their differences adjusted. The courts have not only suffered the exist-
ence of such tribunals, but they have encouraged their support and patron-
age,' but an agreement to submit questions and disputes, not yet arisen, and
whose precise character has not been determined, have always met the disv
favor of the courts, and have frequently been declared invalid, revocable,
and unjust. The English courts have held that a general submission of all
questions to the determination of an engineer was not an arbitration, and
could not as such be made a rule of the court, under acts of 1854; that the
certificate was not an award, nor liable to be examined as such." Mr. Rus-
sell, in his book on Law of Awards, has said: "A building agreement
authorizing proceedings in case of certain defaults by the builder, to be ascer-
tained and decided by the architect without appeal, is not a submission to
arbitration. A decision which precludes differences from arising instead of
settling them after they have arisen, is for many purposes frequently not an
award. One who determines the amount to be paid a contractor for work
done is often not an arbitrator in the proper sense, unless there have been
differences between the parties on the point previous to their submitting it
to his decision ; but when the words of the submission are large enough to
embrace the case of a judicial inquiry, and the object of the parties is to have
their respective cases heard and decided upon the evidence produced before
the arbitrator, it is not less an arbitration because the ultimate object is to
ascertain the value of property or the amount of compensation." ^
' See Faggard «. Williamson (Tex.), 23 tracts, g 341.
S. W. Rep. 557. » Russell's Law of Awards, . 40. 41 ;.
2 Leake's Digest of Law of Contracts 640; Stevenson v. Watson, L. R. 4 C. P. D. 148;
Wadsworth v. Smith, L. R. 6 Q. B. 332; Wadsworth v. Smith, L. R 6 Q B. 333;;
Sharpei;. San Paulo Ry. Co., L. R 8 Cli. Northampton Gas Co. v. Parnell, 15 C. B..
597; Fry's Specitic Performance of Con- C30.
* This is not a desirable stipulation.
292 ENGINEERING AND ABCHITEGTUBAL JURISPBUBENGE. [§ 349.
The feeling has been so strong that it has become a rule of law that in
general, and in absence of statute to the contrary,^ executory agreements to
submit to arbitration are not enforceable.' They may be revoked and
avoided at any time before the award is actually made and delivered.'
Whether the submission is the result of a voluntary act of the parties or is
embodied in a contract makes no difference; at common law, and in some
states by express enactment/ the agreement may be revoked at any time
before the matter in dispute has been fully submitted to the arbitrators for
their decision.'
If the submission calls for a written award it may, it seems, be revoked
at any time before the award is signed, even after the arbitrators have indi-
vidually expressed to strangers their respective views." The submission
may be revoked even though the agreement to arbitrate provides against any
revocation, and by its terms the party seeking to revoke has, for a valuable
and executed consideration, expressly waived and abandoned the right to
revoke. It was held that such stipulations, like other executory agree-
ments, when broken, simply left the other party to seek redress by the
ordinary action of damages for the breach. That the arbitrators de-
Tived their power to act, simply from the continuing consent of the
parties, and when the agreement, while yet executory, is broken by the re-
fusal of either party to be bound or to perform it, the power of the arbi-
trator is at an end.^ And the quotation of an early English case is cited,
in which the justice said: "Man cannot by his act make such authority,
power, or warrant not countermandable, which is by law or by its nature
countermand able; he cannot make that irrevocable which is by its own
nature revocable." ®
349. Either Party is Liable for a Breach of His Agreement to Submit to
Arbitration. — These cases cited are not construction contracts, but if a con-
tractor can at any time before any disputes have come up revoke his agree-
ment to abide by the decisions and estimates of the engineer, which no
doubt he can do as well as he may refuse to proceed with the work, or neglect
1 See % 2383, Code of Civil Procedure, Rep. 932.
ISr. Y. * Risen?). Moon (Va.). 22 S E. Rep. 165;
2 Ho-kins v. Oilman. 22 Wis. 476 [1868]. Boston & L. R. Co. v. Nashua & L. R. Co.,
' Randel v. Clies. &. Del. Canal Co., 1 139 Mass. 463; and see McKenna v. Lyle
Harrington (Del ). 23:^ [1833]; Kinney v, (Pa.), 26 Atl. Rep. 777.
B. & O.. etc., Assn. (W.Va.) 14 S. E. Rep. • Butler v. Greene (Neb.), 68 N. W.
8; Harding v Hart (N. C). 24 S. E. Rep. Rep. 496.
6G8; Gleason v. Ketelias, 17 N. Y. 491; 1 ' People exrel Ins. Co. v. Nash 6^ al, 111
Anier. & Eng. Ency. Law 664, 669; see, how- N. Y. 310.
ever. Buck waiter v. Russell (Pa.), 13 Atl. » People v. Nash, 111 N. Y. 810; but see
Rep. 310 [1888]; and see Guild v. Atchi- Denver Construction Co. v. Stout, 8 C'lo.
son.T & S. F. R Co. (Kans. Sup.), 45 Pac. 61, which distinguishes a stipulation in a
Rep. 82, 'which held that when a price was contract founded upon a consideration from
to be fixed by appraisers in a contract of a submission to arbitration, and holds it
sale, and the appraisers had been selected, irrevocable; accord, Mills v. Bayley, 2 H.
tiiat th ir appointment could not be re- & C. 36; and see 'Pnvm\ee v. Hambleton, 24
voked. 111. 605; Smith v. Alker, 2 Cent. Rep. 904;
4 Siudlinger «j. Kerkow (Cal.), 22 Pac. and see 261!^. W. 11. 7U, note.
f 351.] CONTRACT STIPULATIONS. 293
to fulfill any other condition or provision of his contract, he is also liable to
^n action for the breach and any damages resulting from it to the party
[company].' Whether any damages could be shown might be a question,
but that does not alter the parties' relations nor their rights.
350. Agreement to Submit to Arbitration is Irrevocable after Award is
Made. — The different relations which exist between the parties before the
arbitrator or engineer has rendered his award or certificate, or has decided
disputes that have arisen, and those that exist after the decision has been
made, must be kept in view. When matters have been allowed to go before
the engineer without objection on the part of the owner or contractor, and
the engineer has made his estimate or report under the terms of the submis-
sion, there can be no doubt but that his decision will be held final and con-
clusive, and binding upon both parties. It is then too late to raise any
questions as to the validity or binding effect of the agreement to submit
<juestions or disputes to the engineer. The revocation of such an agreement
must be exercised before the certificate, estimate, or award has been made,
if at all.'
351. Courts will not Enforce Agreements to Submit to Arbitration. —
Courts frequently undertake to specifically enforce the performance of con-
tractual engagements when damages for a breach cannot be ascertained, or
where the difficulties of the situation are otherwise insurmountable, or will
not admit of any other solution. Agreements to submit to arbitration
when broken present complications of adjustment and settlement which
the courts might ordinarily be expected to relieve by insisting upon a sub-
stantial performance, but they do not," and they sustain their refusals by
reasons which, for cases of arbitration strictly, seem sound and sensible.
They are summed up in the following statements, viz., that courts will not
compel a party to submit the decision of his rights to a tribunal which
does not possess full, adequate, and complete means within itself to investi-
gate the merits of the case and to administer justice; that an arbitrator, in
the absence of a statutory authority, cannot compel the attendance of wit-
nesses nor administer oaths; he cannot compel the production of docu-
ments, books of account, and papers, nor insist upon the discovery of facts
from the parties under oath. He cannot enforce his decree.* The court
is powerless to compel the parties to perform their agreement to arbitrate
or to name the arbitrators or to agree upon them. If the parties refuse to
appoint them the court cannot select them, and if they have been selected
it is doubted if the court can require them to perform their functions.* It
' Rison ID. Moon (Va.). 22 S. E. Rep. 165; s Stevenson «. Watson. 4 C. P. D. 148 ;
■and see Wiley v. Goodsell (Sup.). 88 N. Y. 1 Amer. & Eng. Ency. Law 667, and cases
Supp. 376; Murphy v. Northern British & collected; 22 Amer. '& En. 2:. Ency. Law
M. Co., 61 Mo App. 323. 1000 and 1010, and cases, collected.
'Kidwell V. Baltimore, etc., R. Co. (Va.), ^ 1 Amer. & Eng. Ency. Law 667, an^
11 Gratt. 676, and cases cited; Wood's Law cases collected.
of Railroads 996. ^ People v. Nash, 111 N. Y. 310.
294 ENQINEERINQ AND AnGHITEGTUBAL JURISPRUDENCE. [§ 35K
may be doubted if the court has power by mandamus to compel arbitrators
to perform their functions/
A provision in the contract for referees in certain contingencies, which
is not of the essence of the contract, has been held not a ground for refusal
of specific performance of the contract;'' but a provision that either party
may terminate the contract, and that arbitrators shall be appointed to
determine the terms of the rescission and the compensation, has been held
a good reason for a court to refuse to cancel the contract.^ The party who
refuses to supply the deficiency by naming an arbitrator may be denied
relief from a court of equity, except upon the term of his doing equity^
which may consist in his consenting to the accounts being taken by the
court or its master,* and although equity will not decree specific perform-
ance of a contract to arbitrate, yet where a question of damages arises it is
not error for the court, by conse7it of parties, to permit the amount to be
ascertained by arbitrators and to decree the amount found by them.' In
cases where buildings or works have been stipulated to be done in such a
manner as a third person may direct, and where such direction has either
been refused or not given, specific performance has been refused."
This impracticability of compelling the parties to name arbitrators, or,
upon the parties^ refusal, for the court to appoint them, has constituted a
complete bar to any attempt to enforce agreements to refer to arbitration,
and it has become an established principle of the*common law that submis-
sions to arbitration may be revoked at any time before the award is made.'
If such agreements may be revoked, the advisability of such a clause
may well be questioned, for although the contractor be liable for any dam-
ages resulting from his refusal' to submit to the engineer's estimates and
decisions, it would be difficult to show how the company has been injured
or what damages it has suffered if the engineer's estimates be regarded as
honest and just, without proving or assuming that the court and jury's
determination of the questions and quantities were unjust and excessive, in
consequence of which the company suffered. If the contractor has sub-
stantially performed his contract, but has revoked his submission to the
engineer's decision, and has come into court for the determination of his
rights and what is justly due him, the company should prove that they have
suffered damages thereby to be entitled to any recovery for the breach.
A further reason which courts give for refusing to enforce such clauses
is, that they tend to refer the decision of difficult legal questions to inex-
' People V. Nash, 111 N, Y. 310; but see * Fry's Specific Performance (2d ci.)
a?S(9 Wood on Mandamus 110, «w<Z Tapping 157 [1881], citing Tillett v. Charing Cross
on Mandamus 92, which are strictly cases Bridge Co., 26 Beav. 419: Earl of Darnley
of arbitration. ?j. Loudon C. & D. Ry. Co , 3 De G. J. &
2 Union Pac. Ry. Co. v. Chicago, etc., S. 24.
Ry. Co., 16 Sup. Ct. Rep. 1173. "J C. M. & St. P Ry. Co. -y. Stewart, 19
3 Youns: Lock-nut Co. «. Browley Mfg. Fed. Rep. 9 [1883]: Tobey v. Bristol Co..
Co. (N. J. Ch.). 34 Atl. Rep. 947. 3 Story 826; Haggert v. Morgan, 5 N. Y.
4 Ch slyn v. Dalby, 2 Younge & C. 170. 422, 4 Sandf. 198; Gervais v. Edwards, a
6 Conner v, Drake, 1 Ohio St. 166. Dru. & War. 80.
§ 354.] CONTUAGT STIPULATIONS. 295
perienced and incompetent persons. That sucli questions are primarily
and more properly for the determination of the court and are not questions
for an arbitrator [engineer]; which, if true, is an excellent reason for hold-
ing such clauses revocable and for refusing to enforce their specific per-
formance.
352. Consideration of Objections to the Submission of Questions to
Engineer's or Architect's Determination. — The objections to tha stipulation
being regarded as irrevocable submissions to arbitration, having been
enumerated, let us consider their force and see if they be insurmountable.
It is believed that a brief survey of the objections to giving such agree-
ments the effect of submissions to arbitration will show that they are dis-
putable, and it may be doubted if they apply to the usual stipulation in
engineering contracts.
353. Engineer is in Possession of Records and Evidence. — First, it is not
necessary that the engineer should administer oaths, summon witnesses, or
compel the production of papers. He is himself the judge and the witness.
He is in possession of all the facts and documents pertaining to the case.
He has been an eye-witness of the progress of the work, of the changes,
misfortunes, and good fortunes connected with it. The measurements,
reports, and records of the work have been made and prepared under his
direction, and are in his possession or subject to his call. They are subject
to his control, and their prompt delivery can be demanded and required of
any of his assistants or of strangers. If either party to the contract own or
obtain possession of them and refuse to surrender them, then they but
prejudice their cause, and the evidence they contain must be taken as
against the party who retains them, as would be done in court; and even if
the records were destroyed the engineer, having been best informed in the
work, would be best able to furnish satisfactory evidence with regard to it.
The engineer is, as it were, a judge of a higher court, possessed of all the
evidence and acquainted with all and every circumstance, and he therefore
does possess the full, adequate, and complete means, within himself, neces-
sary to investigate the merits of the' case.
354. Engineer can Administer Justice with the Aid of the Courts. —
Secondly, can the engineer administer justice ? He can administer justice
in that he may put the contractor in a position to enforce his rights. He
himself may not compel the proprietor or company to pay, nor can he issue
an execution against his property, but he can, by his certificate or decree,
confer upon the contractor all the rights, privileges, and demands for which
he has stipulated in his contract or is entitled, which is all that justice
demands. He may render the contractor's right to recover absolute for so
much as he may determine, and to enforce its payment the contractor has
only to appeal to the courts without the delay of a jury trial and its attend-
ant vexations.'
. 1 Flynn v. Des Moines & St. L. R. Co., 63 Iowa 491 [1884].
296 ENGINEERING AND ABCEITECTUBAL JURISPRUDENCE. [§ 355.
The rule that courts will not specifically enforce agreements to arbitrate,
nor select the arbitrators when the parties refuse, is one generally adopted/
but it is not without exception. In a recent Michigan case we find a court
of equity ordering the master to have each party select such an engineer as
the contract required to act as arbitrator in readmeasuring the work within
a limited time, and if they did. not make the selection, for the master him-
self to select two for the purpose." But there are many cases to the
contrary/
In contracts for the construction of works, the engineer is either agreed
upon and named in the instrument or his selection is unconditionally pro-
vided for. If it is arranged beforehand, by the terms of the contract, that
his appointment shall be independent of any act of the parties, there is no
reason why he should not be determined as well as the executor or heir of
a deceased person. And it is not so easy to see why the court could not, if
it desired to do so, appoint an arbitrator to settle the affairs and difficulties
of a single transaction of a living person as well as they may appoint an
administrator to settle the business of a deceased person to the interests
and in justice to his kin and creditors, or of a receiver to adjust differences
between a company that is in trouble and its creditors. If the selection of
the engineer has been left by the parties to the court, or to some third party,
as when an umpire is selected, by arbitrators to act with them, or even to
some circumstance or event which should change the character of the ques-
tions to be determined, then they have surrendered their rights and privi-
leges, and it is beyond their power to have any further voice in his selection.
If the engineer named live and is capable of performing his duties, or if the
court or third person make a choice, or the event has come to pass, then
there is no necessity for the court to impose an engineer of their own
appointment upon the parties or to require them either singly or severally
to name one. If the engineer named die or is incapacitated, the contract
should provide for the appointment of his successor; and if the parties or
methods provided for his appointment fail in the performance of their
functions, then there is time for courts to say that the attempt to submit to
the engineer's decision has failed, and until it has failed it should be held
irrevocable and binding. If the engineer's appointment be a duty devolv-
ing upon the company, which fails to appoint a suitable engineer, then the
court may say that the company shall not take advantage of its own wrong
and imply an agreement on the part of the company to furnish an efficient
engineer, and that he shall perform his duties, the breach of which im-
plied agreement gives the contractor access to the courts.
355. Make Liability of Company or Owner Contingent on Determina-
tion of Engineer. — If, as has been suggested, the liability of the company and
» Kidwell «. B. & O. R. R. Co., 11 Gratt. Rep. 156 [1889].
676. 3 Hopkins v. Oilman. 22 Wis. 476 [18681;
2 Sullivan v. Susong (Mich.), 9 S. E. and see also People v. Nash, 111 N. Y. 310.
§ 357.] CONTRACT STIPULATIONS. 297
the right to recover of the contractor be made conditional on the determina-
tion of the engineer, then the contractor is barred of any action until he
obtains such abjudication, and he can recover for his work only by perform-
ing his agreement to submit the questions to the determination of the engi-
neer. This is a burden imposed upon the contractor by the company for
its protection against any such contingency as the contractor refusing to
perform the submission. He is required to furnish a certificate from the
engineer, architect, or superintendent before any liability attaches for any
part of the work. Such a clause is, and invariably should be, inserted in the
contract, and it should clearly and explicitly make the engineer's estimate,
decision, and certificate a condition, precedent to any liability on the part of
the company, and to any right to recover on the part of the contractor for
what he has done. Such a stipulation should be and generally is held con-
clusive and binding, and the contractor has no remedy at law and can re-
cover nothing for what he has done until he produces the required certificate,
or proves a breach of contract, either expressed or implied, on the part of
the company.
356. Parties are Bound after Award is Made. — "A simple agreement
inserted in a contract that the parties will refer any dispute arising there-
under to arbitration will not bar a suit at law by either party upon the con-
tract before an offer to arbitrate; but when the contract stipulates that the
arbitration is to be a condition precedent to the right to sue upon the con-
tract, or this may be inferred upon construction, no suit can be maintained
unless the plaintiff has made all reasonable effort to comply with the condi-
tion," ' or can show that the defendant has hindered the performance
thereof." To secure the certificate the contractor must submit the questions
to the determination of the engineer, which submission after the decision is
made is as binding as any other award, if honestly made. It is not neces-
sary in general therefore that courts should either select, name, or appoint
the engineer to determine the questions arising under a construction con-
tract, and it is only under the rarest combination of circumstances that' the
court would have any of the complications upon which these objections are
based.
357. Stipulation should not be Held Void Because there is a Possibility
it May Fail. — It is therefore submitted that it is a harsh and unnecessary
rule that declares a stipulation of a contract void and without effect because
there is a possibility that it may fail, and that case too arising out of the
bad faith, arbitrary refusal, or dishonesty of one of the parties which may
arise in any transaction, and which may be relieved against equally as well in
one case as in the other. This occurrence too is rendered even more distant
by the fact that the moment the work begins, at that moment the arbitration
' Perkins «. United States Electric Light ' 1 Redfield on Railways, 447 (t5th ed.);
Co., 16 Fed. Rep. 513; note in 26 N. W. and see Tlmrnell t>. Balbirnie, 2 M. & W.
Rep. 744. 786 ; Miles v. Gary, 14 Vesey 400.
298 ENQINWERING AND ARCHITECTURAL JURISPRUDENCE. [§ 358.
begins, and as the award is made at different periods as the work progresses,
(in monthly estimates usually), the contractor may he said to have permitted
the award to be made, after which he would be irrevocably bound for so
much of it, under the strict rules of arbitration.
358. Stipulation does not Leave Decision of Important Questions to In-
competent Persons. — The objection that such clauses refer the decision of
difiQcult legal questions to inexperienced and incompetent persons is not
well founded. It is an objection that can as well be made to submissions to
arbitrations in general. The questions involved may or may not furnish
legal points to be decided, but certainly they are no more important than
those brought up by submissions in general which might include construc-
tion contracts. The difficult questions are rarely of a legal character, at
least of such a character as involve the nicer points of law that would
require the opinion of the court. They are questions pertaining to the
measurements, quality, character, and classification of the materials employed,
or with regard to the perfection or workmanlike character of the work and
of the ultimate completion of the work according to the plans, specifications,
and contract.
359. Engineers and Architects are Most Competent to Determine the
Questions at Issue. — The character of the questions to be determined fur-
nishes the strongest reasons why they should be determined by an engineer.
As judges from the bench have admitted, and ** without disparagement to
the ordinary tribunals of the country," they are questions " which the courts
are least fitted to decide," * and in which an engineer or architect is most
competent to administer exact and equal justice between the parties. The
engineer's or architect's whole education, training, and experience have been
to the very end that he should perform the functions of his office. From his
superintendence and direction of the undertaking he is perfectly acquainted
with all its details. He has designed, directed, measured, and seen it com-
pleted. The specifications and frequently the contract are his own creation,
and- the meaning and interpretation of every clause and expression as under-
stood in the profession and trades are known to him. He is familiar with
the processes of construction employed, with their relative merits and the
care and success with which they have been carried out, and with every step
of the progress of the works, and yet it is contended in the face of these
facts that he is inexperienced and incompetent.
360. Courts, Juries, and Experts are Powerless to Determine or Decide
the Questions Presented. — As to the practical features of the work, it cannot
be denied that the engineer is the proper, if not the only person who should
have their determination. It cannot be urged that a judge with his classical
knowledge of latin, greek, and letters, with his very limited experience,
and with a knowledge of engineering acquired from the study of high-
school geometry, algebra, and physics, and that too lost in the dim forget-
' Justice Rogers in Monougahea Nav. Co. v. Fenlon, 4 W<-itts & Strgeut 205 [1842].
§ 361.] CONTRACT STIPULATIONS, 299
fulness of the past, can better determine the practical questions arising
under a contract for the construction of an engineering structure. Nor can
it be argued that a jury indifferently selected, without adequate informa-
tion or the power to acquire it, will be more competent or better qualified to
determine difficulties arising under such a contract, whether of fact or of
law. If experts, however profound in their calling, are called to assist the
court, their partisan and prejudiced opinions present only the black and the
white of the questions, and tend to confuse the judge and jury, frequently
resulting in the throwing out of all the testimony, and in the judge or jury
deciding the question upon their own understanding or conclusions. This
is no more than what might be expected. Experts are called by the parties
for their preconceived opinions to establish or refute some factor statement,
and it is only when they are prepared to assert or deny such facts that they are
retained. An expert witness is directly for or against the issue, and a judge
or jury derives little competence or experience from the conflicting testimony
they afford. Experts cannot have a full knowledge of the work, of its char-
acter, quantities, perfection or the difficulties attending its performance.
Defective work and materials may have been concealed and buried from
view. Difficulties have been encountered and obstacles removed, and thous-
ands of circumstances and conditions have existed, known only to the engi-
neer and contractor, and which are wholly beyond the reach of the most
skilful and experienced expert. Foundations and embankments may have
settled, materials been wasted, mistakes been corrected, alterations and
changes made, to the detriment or benefit of either or both parties, which
might never be known from inspection, and which could be shown and ex-
plained to a court only by the most expensive litigation. Contradiction could
be positively settled only by undoing work that had been done at great cost,
and the contest would become interminable and ruinous.
Justice Danforth of New York once reviewed these difficulties in giving
his opinion after going over an important case in these words: " The pur-
pose of the parties was to prevent the necessity of measurements and com-
putations after the contract was executed, the structure built. . . . The
wisdom of this precaution appears by reading the evidence of witnesses who
came after the contractor and made, measurements; whose conjectures,
judgments and opinions indicate the difficulty if not the impossibility of
measuring materials after they are furnished (and in the structure). Of
the two methods, estimates before the work and conjectures after, the
parties elected the former." '
361. Difficult Legal Questions Do Arise Without Doubt. — That difficult
legal questions arise cannot be doubted, and the varied and inconsistent
decisions in the books show how well the courts have grappled with them.
They show that the courts have not viewed the difficulties presented from
any one standpoint, nor met them by any common rule or principle, and
» Swift V. The People, 89 N. Y. 52 [1882].
300 ENGINEERma AND ARGHITECTUBAL JURISPRUDENCE. [§ 362.
litigants have met defeat in the same courts that have on other occasions
given them judgment. This, however, may not be from want of legal
knowledge, but rather from the abundance of it. If, instead of seeking to-
invent fictions, and to establish decisions upon refinements that are sus-
ceptible only to the most discriminating, the courts had sought some practical
solution of the difficulties, they would have had less trouble and more uni-
form decisions. As Lord Campbell sought, entertained, and learned from
the commercial world the customs and laws established and maintained by
the necessities of their business — the law-merchant; so might the courts, as
they have in many instances, found the true ground for supporting and
maintaining these clauses of a construction contract. This, it is submitted,,
is a true reason for the existence, and a real cause of the persistent and
universal use of such stipulations.
362. Practical Gommon-sense Reasons for Upholding Such a Stipula-
tion.— The magnitude, extent, and great cost of engineering and architect-
ural works commend them to the courts for a favorable construction
according to their true intent and meaning. The public health, the growth>
improvement, and protection of the nation require that these undertakings
and operations be encouraged and fostered. In England and the United
States, where they have received favorable constructions, the wonderful
progress and development of the industries and public works is most
marked. Without such clauses and the belief that the determination of the
tribunal selected by the parties would be upheld, it is certain that but
little contract work would be had, and a death-blow be given to a means of
securing the performance of public works that has been adopted by every
corporation, municipality, and public institution of the present day a
misfortune more disastrous and far-reaching than would be caused by the
overthrow of practical laws and customs pertaining to factors and brokers,,
or of those pertaining to commercial paper, even. Few capitalists, corpo-
rations, or public institutions would invest their wealth in enterprises in
which their rights and differences with contractors were to be submitted to
an ordinary jury, whose sympathies are distinctly with the contractor, and
against the so-called monopoly, and whose decisions would be based upon
knowledge and experience acquired in the shop, in trade, in husbandry, or
in the practise of the polite professions — A good argument for a profes-
sional jury.*
363. Parties Desire to Avoid the Courts and their Legal Decision, Prefer-
ring the Decision of a Practical and Trained Engineer. — Furthermore, it
may have been, and is, the desire of both parties to avoid the technical
refinements, fictions, and discriminations of the law, with which they are
not acquainted, and to have their differences settled strictly in accordance
with the customs and usages ordinarily practised on such works, and with
which they are familiar, and in which the tribunal to which they have
J See Sharpe v. Sau Paulo Ry. Co. (Eng.), L. R 8 Cb. App. 609.
§ 365.] CONTRACT STIPULATIONS. 301
agreed, to resort is informed and experienced. To keep out of the courts is
often the very object of the reference. It is an undertaking that both
parties have entered into, and an express tondition, without which the con-
tract would never have been entered into, nor the work undertaken. If
such is the express wish and undertaking of both parties, the courts cannot
consistently subvert the intention and declare that they contracted under
any other condition or understanding.*
It is therefore submitted that the objections that the engineer or architect
is inexperienced, and incompetent to determine the questions submitted to
him, according to the express terms of the contract, is not well taken.
364. Interest of the Engineer an Objection to His Serving as an Umpire.
— Finally, it has been held that the engineer is interested, and is therefore
disqualified from acting as a referee or umpire.
It is almost a universal custom in engineering construction for the party
having work to be done, and who must therefore pay for it, to provide the
engineer, or to select the tribunal who shall determine differences arising.
The engineer is usually emplayed in the capacity of a superintendent and
director of the work, and with the express understanding that he will look out
for his employer's interests. It is his duty to see that the work is skillfully
and correctly executed, and in strict accordance with the terms of the con-
tract. He is there in the interests of the proprietor, receives his compensa-
tion from him, and may have individual interests in the undertaking." He
is not required nor expected to watch the contractor's business, nor to pro-
mote his interests, and any attempt to do so might render his position unten-
able, change the relations of the parties, and render the stipulation of his
choice invalid.
An arbitrator or umpire should have no interest in the questions he is to
decide. There should be nothing to influence him in favor of either con-
testant. Relationship, joint interest, or a preconceived opinion should
render him incompetent to act. It is an established rule that where a judge
is interested in the result of a cause he cannot either personally, or by
deputy, sit in judgment upon it. From which it has been inferred that the
relation of employer and employee ought to exclude the engineer from act-
ing as a judge, arbitrator, or umpire where his employer is a party to the
controversy.
365. Engineer should have No Secret Interest. — While all these things
may be true, and the engineer is frequently interested and an employee of
one of the parties, and though to be regretted, it need not be a reason for
refusing to enforce a stipulation to abide by his decisions. If the contractor
knew that the engineer was an employee of the company when he took the
contract, and with such knowledge of his interests agreed to submit to and
^ See Sharpe r. San Paulo Ry. Co., L. L. Cas 71 [1854]; Williams v. Chicago S.
R. 8 Ch. App. 607. F. & C. Ry., 112 Mo. 463.
2 Rune:er v. Gt Western Ry. Co., 5 H.
302 ENGINEERING AND ARGHITECTURAL JURISPRUDENCE [§ 'dQo.
abide by his decision, there is no good reason why he should not be held
to his agreement if he has had the benefit of tlie engineer's honest judg-
ment, for which he stipulated. If not strictly as an arbitrator, at least by
analogy as a 5'^^rt5^-arbitrator, umpire, or referee, and this is the established
law. In no case could it be hoped to secure an arbitrator whose tendencies
and interests were absolutely balanced or null; such perfection does not exi»t
in human hearts. Some confidence must be reposed in the honesty and
impartial judgments of men. Absolute disinterestedness is not expected or
required, and it has become a question of what degree or amount of interest
will prevent a person from exercising judicial functions when known to the
parties.
The interest permitted has been almost unlimited. Questions have been
submitted to infants, married women, idiots, and even lunatics,* who have
been regarded as arbitrators, and there seems to be no rule to prevent a
matter being submitted to one of the parties himself.' With knowledge, the
arbitrator may be a partner of one of the parties, and the fact that the person
acting as arbitrator had previously acted as counsel of one of the parties,
will not invalidate the award, even though the other party was ignorant of
the fact.' He may be indebted to one of the parties if the debt be not inse-
cure, or its payment does not depend upon the result of the controversy,*
or he may be an indorser on a note given by one of the parties.^ One of the
parties may hold a mortgage on the furniture of one of the arbitrators;*
and the architect may have testified as a witness in an action between the
owner and contractor.^ It has been held that an engineer who was a stock-
holder, or even a lessee, of a railroad company was not disqualified from
acting as a quasi-^rh\tv2iiox between it and the contractor, although the
fact was not brought to the contractor's attention, and he was wholly igno-
rant of it.^
If there be no secret interest, and both parties know that th'e engineer is
an employee, or even a stockholder, of one of them, it can afford no legal
objection to his acting in his capacity of umpire or arbitrator. The parties
are held to have waived the right to object, and his award is held as binding
as that of any other arbitrator. Surely it is a question as much for the
parties interested to decide as for anybody. If a contractor has such unlim-
ited confidence in an engineer or in the other party, for the selection
of a proper engineer, he can best judge of the degree of interest
» 1 Amer. & Eng. Ency. Law 671. ' Barclay v. Deckerhoof, 171 Pa. St. 378
2 1 Amer. & Enff. Ency. Law, 672. [18951; McMillan v. Allen (Ga), 25 S. E.
3 Goodrich i). Hurlbert, 123 Mass. 190 Rep 505, anrf se^ Hart «. Kennedy (N. J.),
[1877]; Leominster ^. Fitchburg R Co. 20 Atl. Rep. 29 [1890], «nd Silver «. Conn.
(Mass.) 7 Allen 38. R. L. Co., 40 Fed. Rep. 192 [1889].
^ Anderson v. Burchett (Kans.), 29 Pac. ^Ranger v. Great Western Ry., 5 H. L.
Rep 815 [1892]. Cas. 71; Hill v South Statf. Rv. Co., 11
^ BuUman d. N. B. & M. Ins. Co. (Mass.), Jurist (N. S.) 192; Mon. Nav. Qo. v. Fen-
34 N. E. Rep. 169. Ion, 4 W. ife S. 205; B. & O. R R. Co. v.
« Mather v. Day (Mich.), 64 N. W. Rep. Polly Woods Co., 14 Gratt. 459; but see
198. Milnor v. Ga, R., etc., Co., 4 Georgia 385.
S 366.] CONTRACT STIPULATIONS. 303
he would have exist and still trust to his judgment. Courts have therefore
-established the rule that only such interests as are unknown to the con-
testing parties will render a person incompetent to act as an arbitrator.
His interests must not be secret, but must be brought to the notice of all
the parties to the agreement.
Finally, if the objections that these stipulations are not submissions to
arbitration, and that the engineer is not an arbitrator, are met, it should
follow that his decisions are good and will be given the effect of an award.
Whether they are, will be determined in the chapter following.
366. No Definite Line of Separation of Cases For and Against Binding
Effect of Engineer's Decision.— It must be admitted that the contrary decis-
ions are not separated by any definite line or rule, but that they depend
much upon the disposition of each court ; its desire to maintain the dignity
and supremacy of the court, on the one hand, and its recognition of what
public policy, the methods of business, and difficulties of engineering
construction require on the other hand. Judges, not unlike mankind in
general, have certain objects uppermost in their mind, sometimes called
" hobbies," and one may have justice uppermost in his mind, another the
public good of mankind, and a third, more paternal and charitable, the wish
to alleviate the hardships and sufferings of man, and to guard the weak from
the stronger, and yet another may partake of the character of a disciplina-
rian and be willing that a man should bear the consequence of his folly.
As Campbell, the great commercial judge of England, was so instrumental
in establishing the law-merchant, so have Chancelors Cran worth, Walworth,
and Redfield, and Ld. Justice James been pioneer judges, who have estab-
lished the rules to govern engineering construction.
An independent tribunal is a necessity. The character of the work, the
difficulties and dangers attending it, demand it. Mistakes, changes, and
unforeseen conditions demand it. It is and can be created, and is main-
tained bjL the higher courts of state and crown, recognizing its utility and
necessity. It is necessary in construction, location, or surveying, and the
true ground is not to be found in the philosophy of the law, nor is it be-
lieved to be founded upon the principles of jurisprudence. They are upheld
from the convenience and necessity of the case.*
As our laws have been modified and molded into the law-merchant,
for the convenience and security of business, and to encourage and build up
commercial interests, so have the barriers to public improvement and the
nation's development been removed, to foster and encourage architectural
and engineering works.'' The nature of such undertakings, their magni*
tude, great cost, and importance, renders it convenient and advisable, if
' Sharpe v. San Paulo Ry. Co.. L. R. 8 B. N. S. 278 ; Martin v. Leggett. 4 E. D.
Ch. App. 607 ; andsee Boettler v. Fendick, Smi-h (N. Y.) 257 ; Glaucus «. Black, 50
73 Tex. 488; Goodyear v. Weymouth, 1 N. Y. 145; and see 29 Amer. & Eog.
H. & R. 67 ; Grafton v. Eastern Cos. R. Ency. Law 926.
Co., 8 Exch. 699 ; Clarke «. Watson, 18 C. « Boswell v. Laird, 8 Cal. 472-3 [1858].
304 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 366.
not necessary, that their direction and management be under one person^
a person skilled in the technicalities and peculiarities of the work, as well
as informed as to the wishes of the owner, which person may be the:
owner himself.
To a layman not familiar with the fictions and refinements of the law it
is simply an exception to the rule, and practically amounts to saying that
the contractor's rights depeuds upon his good luck in having an honest and
conscientious engineer or employer, or upon the ability of the court to con-
duct an astute investigation; that the employer's obligations to pay, or to-
perform, depend upon his approval of his work and behavior or that of his-
engineer or architect, and that the courts undertake to guaranty him that
the employer shall not capriciously nor unreasonably exercise his power to
defeat the contract or to deny him his just compensation.
CHAPTER XIII.
ENGINEER OR ARCHITECT AS A QUASI-ARBITRATOR, UMPIRE, OR
REFEREE. HIS DUTIES, POWERS, AND OBLIGATIONS IN A JUDICIAL
CAPACITY. .
367. Provision that Engineer shall be the Sole Judge and Decide all
Questions.
Clause : " To prevent any disputes, doubts, differences, or litigations
arising, or happening, touching, or concerning the said works, or any
of them, or relating to the quantities, qualities, description, classification,
or manner of work done and executed, or to be done and executed by the
contractors, or to the quantity, quality, or classification of the materials
to be employed therein or in respect of any additions, deductions, altera-
tions, or deviations made in, to, or from the said works, or any part of
them, or touching or concerning the meaning or intention of the speci-
fications and of this agreement, or any part thereof, or of any contract
entered into by and between the company and the contractors pertaining
to works herein described, or of any plans, drawings, instructions, or
directions referred to in the said specifications or the contract, or which
may be furnished or given during the progress of the works, or touch-
ing or concerning any certificate, order, or award which may have been
made by the engineer, or in anywise whatsoever relating to the interests
of the company, or of the contractors in the premises ; it is expressly
agreed that every such question, doubt, dispute, and difference shall
from time to time be referred to, and be settled and decided by the
engineer, who shall be competent to enter upon the subject-matter of
such question, doubt, dispute, or difference, with or without former refer-
ence or notice to the parties to this agreement, or either of them, and that
he shall judge, decide, order, and determine thereon; and that to the
engineer shall also be referred the settlement of this contract, and the
determination of the sum or sums, or balance of money to be paid to
or received by the contractors" from the company, and it is further
expressly agreed that such decision as to any and every question, doubt,
dispute, and difference, and said determination and estimate of the
quantities, qualities, classifications, and of the sums, values, and all
other matters hereinbefore or hereinafter mentioned and described shall
be a condition precedent to any right of the contractors to receive, de-
mand, or claim any money or other compensation under this agreement,
and a condition precedent to any liability on the part of the owner or
company to the contractors, or on account of this contract, or for any
labor or materials furnished in connection therewith."
368. The Object is to Create a Tribunal to Determine Questions Arising-
with Regard to the Work. — Such an agreement is to all intents and pur-
305
306 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 369.
poses a submission to arbitration of any and all differences and disputes aris-
ing under the contract, or in respect to the work as it may be expressly pro-
vided. By the agreement a tribunal is created, the office of which is to
determine and to decide all questions submitted by the express terms of the
submission and of no other questions.
The discussion of this tribunal naturally prompts us to begin with its
creation. The judicial powers of an engineer are wholly dependent upon
the mutual understanding and agreement of the parties. The agreement
is likened to a submission to arbitration, and the engineer is in many respects
the arbitrator of the submission. The analogy is not complete. An arbi-
trator should be a disinterested person, and the engineer is not. He is
usually the paid servant of the company. He is to direct its works, pro-
mote its interests, attend to its business, and in every way be mindful of its
rights and dues. He owes no duties to the contractor except what he can
-demand by the terms of his contracts; he is under no obligations to protect
liis interests, or assist him in his affairs.
369. A Faulty Introduction. — To begin this clause with the words: **If
any disputes arise, etc.," or by the words : " Any and every dispute as to the
construction of the specification, etc., shall be decided by the engineer,"
seems to be bad practice, for it limits the authority of the engineer to cases
in which disputes have actually arisen. It was held under such a provision
that directions by an engineer in a letter to the contractor complaining of
the manner in which certain work was being done and ordering certain
changes, were unauthorized because no dispute as to the specifications had
iirisen. '
To have such a stipulation hold with regard to the engineer's decisions
or prevent the contractor from bringing an action at law, it would seem to be
necessary to allege and to prove that there were disputes,' and that the com-
|)any or owner shall have offered to submit such disputes to arbitration.'
When therefore it was proved that "in case of dispute as to the value of
extra work, it shall be submitted to arbitration," etc., the contractor may
sue for extras without alleging or proving anything as to an arbitration, the
subject of arbitration not having been raised by the owner and he having
refused to pay, not on the. ground that the arbitration clause was not carried
cut, but for other reasons.* A like ruling was made on an insurance policy
■which postponed any action, in case of disagreement as to the amount of
loss, until said amount was submitted to arbitration. A loss having occurred,
the insurance company refused to pay anything until further proofs of loss
were furnished, but never offered to submit the amount of loss to arbitra-
* Fitzgerald v. Moran (N. Y.), 36 K E. 295 [1888]; Sinclair v. Tallraadsi^e. 35 Barb.
Hep. 508 ; and see Holienzolleni Co. v. 602; Smith v. Aiken, 102 N. Y. 87.
Xiondou C rporation, 54 L. T. Rep. 596 ^Milwaukee M. Ids. Co. ■». Stuart (Ind.),
[1886] ; and Boettler v. Fendick (Tex.), 11 42 N. E. Rep. 290.
S. W. Rep 497 [1889]. ^ Porter v. Swan, 35 N. Y. Supp. 1037.
* Johnson v. Varian, 37 Alb. Law Jour.
§■870.] CONTRACT STIPULATIONS. 307
tion. The contractor having brought an action to recover his loss four
months later, it was held not in violation of the arbitration clause of the
policy/
When, however, a job has been finished under the direction and super-
vision and to the acceptance of an architect or engineer whoso decision
was to be final, and the contractor has accepted payment in full on the
certificates of the architect or engineer, the parties are bound by suclk
certificates even as to matters about which no "disputes or controversy has
arisen," " there being no averment of fraud nor any allegation of concealment
of defects by the contractor.
Under a contract providing first for the payment of the price of loco-
motives delivered upon the certificate of the engineer that the locomotives
were in perfect working order, and by a subsequent clause " that all dis-
putes are to be settled by arbitration," it was held that a refusal by the
engineer to certify or to give his reasons for not certifying was a dispute
within the later clause for arbitration, and entitled the contractor to pro-
ceed under it; and that whether the arbitrator was right or wrong, not
having exceeded his jurisdiction, the court enforced his award/ In view
of this case it is therefore recommended that the phrase employed in the
text, "To prevent all questions, disputes," etc., be used as one which
more properly expresses the intention of the company, and as embodying
the idea of settling all disputes.
370. Powers are Confined to those Expressly Conferred by the Contract.
—In performing the functions conferred by this stipulation the engineer
must have strict regard to the terms of the contract. His duties are to be
ascertained from it, and his powers are limited to what it confers or may be
clearly implied from its terms. He cannot go beyond it nor behind it. He
must act strictly within its terms. The application of the clause is limited
to the questions enumerated, or that were plainly intended to be referred to-
the engineer's decision. His powers will not be enlarged by implication-
beyond the plain words used.* An appointment of an engineer to see-
whether certain work was done according to contract does not confer the-
power of a referee upon him. *
The subject-matter of the controversy must be clearly within the pros^
pective submission to take away the rights to a trial by jury," and the
engineer's determination will be conclusive only as to that part of those
' Milwaukee M. Ins. Co. v. Stuart (Ind.), Rep. 497 [1889].
42 N. E. Rop. 290; accord Moyer n. Sun ^ Hohenzollern Co. v. London Corp'n,.
Ins. Office (Pa.). 3o Atl. Rep. 221; hut see 54 L T. Rep. 596 [1886].
Murphy v. N. British «fc M. Co., 61 Mo. ^j^aunman v. Yonnge, 13 Pa. St 306;
App. 328, which held that an offer by an Sawtells «. Howard (Mich.), 62 N W Rep.
insurance adjuster, which was rejected by 156; Lorey v. Lorey, 1 Mo. App. Rep'r^
the person insured, was such a disagree- 189.
ment as would bring into operation the ^McKinneyi?. Page, 32 Me. 513.
provision for arbitration. * Launuian ®. Younge, «tfpra.
2 Boettler ^. Tendrick (Tex.), 11 S. W.
308 ENGINEERINO AND ABCHITECTUBAL JURISPRUDENCE. [§ 370.
items which are clearly within the powers conferred upon him.' He cannot
refuse the contractor a final certificate, because the subcontractors are not
paid, when the certificate was due upon the full completion of the building."
A power to be the sole judge of the "quality, character, ¥alue, and number
of materials furnished " has been held not to give him the arbitrary deter-
mination of the quantities,' and power to decide "as to the interpretation
of the drawings and specifications, and as to the quality and quantity of
work or materials or any other matter connected with the work, furnishing
materials or in settlement of this contract,^' was held not to include a claim
for damages for unreasonable delay in performing the contract.* The de-
termination of the question of "substantial performance" cannot be im-
plied from a power to determine any dispute as to the value of alterations,
additions, etc.,^ and vice versa*
The engineer's decision or estimate is an adjudication which is conclusive
only upon the condition that it is made according to the contract." There-
fore, when work has been undertaken for a lump sum, and the engineer's
decision is conclusive, they cannot arbitrarily deduct from the contract
price a large sum as for an error in computing the quantities in the prelim-
inary estimates/ If the company or city will have its engineer's estimates
and decisions final and conclusive, they must expressly provide for it. They
will be conclusive and binding, upon the contractor, only where it is made
a clear and positive stipulation in the contract and payment is made condi-
tional upon its having been rendered. Such arbitrary powers cannot be
implied, and must be so clearly expressed as to leave no doubt of the evident
intention of the parties.® The fact that the contract provides for monthly
estimates, and in the end for a final estimate of the quantity, character, and
value of the work by the engineer, is not enough to make his estimates un-
impeachable. The parties not having agreed that the amount to be paid
shall be determined by the engineer, or that his estimates shall be final and
conclusive, they have not the quality of an adjudication, but must depend,
for fipality, on their own inherent accuracy, which may be tested by any
competent proofs which would disclose its errors and mistakes." They are
merely prima facie correct.^" A provision for payment upon the architect's
certificates as the work progresses was held not to make a certificate a con-
' Sanders v. Hutchinson, 26 111. 633; 'Peters v. Quebec Harbor Com'rs, 19
Mills V. Weeks, 21 111. 596; McCall v. Me- Can. Sup. Ct. 685.
Call (S. C). 15 S. E. Rep. 348. » The Memphis, C. & L. R. Co. v. Wil-
^Mahoney v. Rector (La.), 17 S\ Rep. cox, 48 Pa. St. 161 [1864].
484. 9 The M., C. & L. R. Co. v. Wilcox, 48
'Estel V. St. Louis & R. Co., 56 Mo. 282 Pa St 161 [1864] ; and see Schwerin v.
[1874]. DeGraff, 21 Minn. 354 [1875] ; Clarke v.
* Michigan Ave. M. E. Ch. v. Hearson, Williams, 29 Neb. 691 ; Pacci v. Barney,
41 111. App. 89 20 N. Y. Supp. 375.
^Oberlies®. Bullinger, 27 K Y. Supp. "> McCoy v Able (Ind.), 30 N. E. Rep.
19. 528; Central Trust Co. «. Louisville, etc.,
« Drhew v. Altoona City, 121 Pa. St. 401. Ry. Co. (C. C), 70 Fed. Rep. 282.
* See Sees. 591-596, infra.
§371.] CONTRACT STIPULATIONS. ' 309
dition precedent to the final payment.' The engineer's decision relates
exclusively to matters embraced within the submission.' His power is sub-
ordinate to the contract, he cannot alter its express provisions, nor add to
its requirements;^ his decisions are conclusive only with regard to work
described in the contract and specifications.* He must measure and classify
the materials and work according to its express terms and the rules and
scales established by the parties/ If he be sole judge of the work, its qual-
ity and character, he cannot accept what the contract forbids, nor demand
what the contract does not require. If materials or work are described in
the specifications, he is confined in his acceptance to things which answer
that description, and it is no answer that they are as good, or as suitable,
for the purpose ; the company will not be bound by his acceptance, unless
it conforms to the contract requirements, and this is so even if accepted in
good faith, under an erroneous view of the contract.'*
371. Employment or Agency of Engineer or Architect Confers no
Special Powers upon Him. — In connection with the limitation of the engi-
neer's power as a 5'^m5^-arbitrator to the actual terms of the submission, is
the restriction of the engineer's authority, as an agent or representative of
the company, to the pow*ers specially conferred by the contract or by some
other instrument in connection with it, as for example a power of attorney.'
It has been held that when an engineer has executed the original contract
and no limitations were placed on his power, the owner or company will be
bound to pay for extra work done by his orders or under his supervision and
direction.*
The engineer is an agent with special powers, simply to do the engineer-
ing and to superintend and direct the work. Unless specially conferred, he
lias no power to contract or or to vary the terms of the parties' agreement.
He can create no new obligations not embraced by the contract. The
courts exercise extra caution in determining the rigid and close construction
of the terms creating his powers to act as the representative of the parties.' f
^Braiin v. Winans, 37 111. App. 248 ; Langdon, 9 M. & W. CO; Stewart v. Citv
Oberlies v. Bullinger, 75 Hun (N. Y.) 248; of C, 125 Mass. 102 ; Benton Co. v. Pat-
but see Micbaelis i) Wolf, 136 111. 68 ; and rick, 54 Miss. 240 ; Starkweather v. Good-
see Schuler ■?). Eckert, 90 Mich. 165. man, 48 Conn. 101 ; Alexander «>. Robertson
2 Dubois v. D. & H. Canal Co., 12 (Tex.), 24 S. W. Rep. 680.
Wend. 334, 15 Wend. 87. ' Kimberly v. Dick, L. R. 13 Eq. 1;
3 Sbarpe «. San Paulo Ry. Co., 8 Cbanc. Campbell «."Day. 90 111. 363.
App. 597 ; Dillon v. Syracuse, 9 K Y. 98. « Houston," etc., R. Co. v. Trentom, 63
■* St. J >lin «). Potter (Com. PI.), 19 N. Y. Tex. 442; and see Commissioners v.
Supp 230. Motherwell, 123 Ind. 364, where architects
' Stnrkcy v. DeGraff. 22 Minn. 431 were held airents of owner ; Dodge ■». Mc-
11876]; aAv<? s^e 13 III. 147 ; Alton R. Co. v. Donn-U, 14" Wis. 553.
Northcott. 15 111. 49 [1855]; and 25 ^ Woodruff «. R. & P. Ry. Co.. 108 N.
Amer. & Eng. R. Cas. 265. Y. 39; Gardner v. B. & M. Ry. Co , "^O
'Alton R. Co. •». North ott, supra ; G., Me. 181; Braney v. Town of Millhurg
H. & S. A. Ry. Co. V. Henry and Dilley, (Mass.), 44 N. E. Rep. 1060; but see Mooa
«5 Tex. 685 [1886]; see also Coopers. t). Whitney Union, 3 Bing K Cases 814.
* See Sees. 381-388, and 392-396, infra. f Compare Sees. 553-558, infra.
810 ENQINEERINO AND ARCHITEGTUBAL JURISPRUDENCE. [§ 372.
372. Power to Supervise, Direct the Work, and Order Changes and
Determine all Questions does not Authorize Him to do Anything not
Expressly Provided For.* — The clauses of arbitration giving the engineer
'authority to determine any and every question and dispute, and the power
conferred in another clause to order any changes, alterations, with provis^
ions for allowances of additions and dimensions of the work, and a thircJ
clause that the engineer shall have the full supervision, superintendence^
and direction of the work, would seem to a contractor to give to the engi-
neer authority to order, direct, decide, and determine almost anything; but.
Buch is not the case. On the contrary, he is limited strictly to the special
powers clearly and explicitly conferred by the contract, and his duties must
be performed in the manner therein described/
In a contract for the construction of a railroad, the whole of which wa»
to be performed for a lump sum, a change of plan by the engineer greatly^
increased the excavation, and he promised to make an equivalent saving on
other parts of the road in sidings and turnouts, which he never did. The-
contractor brought suit for the extra work caused by the change, and it wa»
held he could not recover; that an engineer had no power to vary the terms-
of the contract; that he could give directions to do bnly those things withirt
the limits of the contract.'
373, Contractor should not Perform Additional or Extra Work b^
Direction of Engineer without Authority from Owner. — The court said
that " if a contractor disapproves of a new plan or of changes as not in
keeping with his contract, he should insist upon a new and collateral
contract with the company and not undertake to contract with the-
engineer, who has ho power to alter the terms of the agreement or to
enter into a new one, on behalf of the company." So where an engineer
had requested a contractor to re-excavate a cut that had caved in and
agreed that the work should be taken outside of the contract at a price
named, it was held that the contractor could not recover for the extra work
so done. No authority on the part of the engineer being shown, none could
be implied.' The court said : " If an engineer has unlimited authority to
change the contract at will and to make special agreements for work fairly
embraced therein, then the company has very little protection from the re-
duction of their contract to writing." In a case where an engineer had
^ See Gallagher v. Sharpless (Pa.), 19 108 N. Y. 39 [1888]: Pasliby ^. The Mayor.
Atl. Rep. 491' [18901. 18 C. B 2 [1856]; Bfirker v. Troy, etc.. R.
2 S larpe v. San Paulo Ry. Co.. L. R. 8 Co., 27 Vt. 766; White v S. R. & S. G R.
Ch. App. 603; Bouton ». McDonough Co., Co.. 50 Cal. 419; Shaw v. Wolverton W.
84 111. 384; City of Dallas «. Brown (Tex.), W. Co., 6 Excb. 137; 1 Redfitld on Rys.
31 S. W. Rep. 298; and see Cooper v. Lan- (5th e '.) 431-3.
don, 9 M. «& W. 60; Railroad v. Pelo, 1 Y. ^ Woodruff v. R. & P. R. R. Co., 108 N.
& J. 37; Vanderwerke v. V. C. Ry. Co., 27 Y. 39, and many cases cited by counsel m
Vt. 125 [18541; Coker v. Youn^, 2 Fost. Dodge?). McDonnell, 14 Wis. 553.
& Fin. 98; Woodruff v. R. & P. R. Co.
* See Sec. 768, infra.
§ 376.] CONTRACT STIPULATIONS. 311
power to extend the time of completion of work so much as he deemed rea-
sonable, in consequence of delay caused by the company not removing cer-
tain obtacles which they undertook to remove, and was given the usual
powers to decide differences and disputes, his decision to be final and bind-
ing, it was held that he had no authority to make an agreement on behalf
of the company that no unnecessary delay should occur in removing the
obstacles, or that they should be compensated for the delay.* It was held,
however, that there was an implied agreeme^it on the part of the company
[board] that there should be no unreasonable delay, and that if the con-
tractor was in fact prevented from completing the contract in time by rea-
son of the unreasonable delay on the part of the company, he was entitled
to damages.'. Such a decision shows how cautious and discriminating the
courts are in limiting the authority of an agent [engineer] to the special
powers conferred upon him by the contract.*
376. Engineer Cannot Pledge His Employer's Credit to Pay Subcontract-
ors or Workmen. — It follows that an engineer cannot pledge the company
to pay a subcontractor (v/ho has discontinued work on account of the con-
tractor's inability to pay him) if he will go on and complete the work, there
being nothing to show that the engineer had authority to make such an
agreement. And if the subcontractor performs the work at the instance ot
the engineer he cannot recover for it from the company.^ No authority
to supervise the letting of subcontract or the hiring of men can be
implied from the power to superintend the construction of a building
to see and that the same is built in strict conformity to the specifications
and plans.*
This is a frequent occurrence. Engineering work is generally important,
driving,. and an early completion the utmost necessity. The jngineer is
frequently the only representative of the company upon the works, and it
is doubtful if a contractor would refuse to perform any ordinary task
imposed upon him by the engineer, even if he knew he might not receive
any compensation for it. Frequently the engineer is clothed with authority
to require so many things, some so closely allied to others as to almost imply
authority to order new or extra work. Thus when an engineer was author-
ized to superintend and direct the work and to require the removal of earth
from one section to another, it was held he could not direct extra work to
be done in another section than that which belonged to the subcontractor
and bind the company to pay for it.* Other cases have held that an engi-
neer, by virtue of his position, has no authority to bind his company by
' Lawson v. Wallasey Board, 63 L J. Q. R (low;!). 55 N. W. Rep. 81 : Milh ©.
B. D. 302. Weeks. 21 111. 561 ; Bouton v. SupervL«ors.
2 Lawson v. Wallasey Board, 62 L. J. Q. 48 Hi 384.
B. D. 302 4 Lewis v. Slack, 27 Mo. App. 131.
3 Powrie v. Kansas Pac. Ry. Co., 1 Colo. * Thayer v. V. C. Ry. Co., 24 Vt. 440
629 [1872] ; Blanding v. Davenpori I. & D. [1852].
*Sec. Nos. 374, 375 arj omitted.
312 ENQINEERING AND ARCHITECTUEAL JURISPRUDENCE. [§ 377.
his contracts/ and that there is nothing in his general duties to authorize
him to employ others.'
377. Ratification of Engineer's Orders may be Implied from Acquiescence
or Adoption of Prior Orders —Instances.^Frequently implied authority of
the engineer to direct changes and order new work may be shown. It is a
principle of the law of agency '^ that acquiescence of an employer [principal]
for a long period of time in the unauthorized acts of an agent [engineer]
creates a presumption of ratification" of the acts.^ The fact that an engi-
neer has done other similar acts which the company have adopted or ratified
may furnish a ground on which may be founded an inference of authority.
Thus the fact that the engineer had on previous occasions made similar
promises or pledges to employees, and that the subcontractors had been
paid by the paymaster upon the direction and orders of the engineer, would
be evidence to show that the engineer did have authority.*
There' are such cases in the books as where a company's engineer directed
stone to be bought and delivered for a bridge and promised that the
company should pay for them, it was held that the company must pay
for them, it being shown, under objection and exception, that tho engi-
neer had on a previous occasion made a similar purchase of cement used
on the same bridge, and which the company had paid for without pro
test or objection; and held further, that the objections and exceptions
to thv3 admission of such evidence could not be sustained/ The fact
that an owner has paid one bill of extras ordered by his architect without
objection does not estop him from denying the architect's authority to sub-
sequently order other extra work ; " but where a company has stood by and seen
works ordered by their engineer performed, it will be held to have assented
to their execution. The courts say: "It would be fraud on the' part of
a company to have desired by or through their engineer such altera-
tions, additions, and omissions to have been made; to have stood by and
seen the expenditures going on, and to have taken the benefit of such
expenditures, and then to refuse payment on the ground that the ex-
penditure was incurred without proper orders having been given for the
purpose." ^
378. The Engineer Cannot Promise Extra Compensation for Work or
Materials Comprised in the Contract. — Work ordered or directed by the
enHneer must not be such work as can be included in the contract. There-
fore, when in a contract for the construction of a railroad, the whole of
which was to be performed for a certain sum or price, the engineer changed
' Onrdner ®. B. & M. R. Co., 70 iMe. 181 529 [1872].
[1879] : 8. c. 7 Amer. Corp. Cas. 326. ^ Beattie© D., L. & W. Ry. Co., 90 KY.
«T av r t). V. C. Rv. Co., 24 Vt. 440 643 [!882j ; sp£ also Olcott®. Tioga R. Co.,
[18n2];" Mcintosh v. Hastings, 156 Mass. 27 N. Y. 54')-560.
i344. 8 Starkweather v. Goodman, 48 Conn.
» Shinn V. Hicks (Tex.), 45 S. W. R. 486 101 [1880].
[1887] ^Hill 0. So. Staffordshire Ry. Co. 11
^Powrie v. Kansas Pac R. Co., 1 Colo. Jurist (N. S.) 192 [1865).
§ 380.] CONTRACT STIPULATIONS. 313
the plan and greatly increased the excavations, having promised and agreed
to effect or make an equal saving in other parts of the road, which he did
not do, it was held that the contractor could not recover for the extra exca-
vations removed, even if the company did know and did not dissent to what
the contractor was doing at the instance, request, and promises of the en-
gineer. The contractor, it was held, could not claim more than the contract
price because the engineer found he had made a mistake and promised he
would give more, and the company verbally promised or in some vague way
ratified his promises. A contract under seal, the court said, could not be
altered in that way ; and such a promise would be a perfect nudum pactum,
and was a totally distinct thing from a claim to payment for actual extra
work not included in the contract.^
379. Engineer Cannot Change Contract and Specifications nor Make New
Terms. — As Chief Justice Redfield of Vermont once said: " No one could
for a moment be led into any misapprehension as to the extent of an en-
gineer's authority to charge the company by varying existing contracts or
making new ones. The engineers are there for no such purpose; they have
no such agency except under specific limitations and restrictions,' and the
fact that the company had paid similar claims to other persons will not
bind them to pay this, unless that fact had been known to the contractor at
the time he did the work and operated to induce him to confide in tho
authority of the engineer/' ^ Although the company accepts work done
under a contract made by the engineer, or under the old one enlarged
by him, the company is not liable for such work. The engineer must
have special authority to so contract, for it is not within the scope of his
agency."
It was held, therefore, that an engineer of a railroad had no authority to
employ a freight or station agent in the early operation of the road ; and
the fact that the engineer could not attend to the business and that the
work performed was necessary to be done, was held not to imply authority
in the engineer nor to give the agent so employed a right to recover.^
380. Owner or Company is not Bound by Admissions or Statements of
Engineer. — If the engineer cannot create obligations binding upon the
company, it is equally as well settled that he cannot bind his company by
any statements and admissions which he may make with reference to it,
and therefore evidence of such statements and admissions are incompetent.'
1 Slmrpe v San Paulo Ry. Co., L. R. 8 ^^^^ Woodruff v. Rochester & P. R. Co.,
Oh. App. 607. 108 N. Y. 39 [1888], and many cases cited
2 Adbird v. Muldoon, 45 111. 193 ; Dodge in Vanderwerker v. V. C. Ry. Co., 27 Vt.
r. McDonnell, 14 WK 553 ; Benton Co. 125 [1854].
-». P.nrick, 54 Miss. 240; Jones v. Reg., ^ Boynton i?. Lynn Gas Lt. Co., 124 Mass.
7 Cat). Sup. Ct. 570 ; Reg. v. Starrs, 17 197 [1878].
Can. Sup. Ct. 118; Rex v. Peto, 1 Y. & ^ Wall is v. Toledo A. A. & N. W. Ry.
J. 37 ; Cooper tJ. Lnngdon, 9 M. & W. 60 : Co. (Mich.) 40 N. W. R. 205 [1888].
Baltimore Cemetery Co. ®. Coburn, 7 Md. "Wolf «. The Des Moines & Ft. Dodge
202. Bouton v. McDonough Co., 84 111. R. Co. , 64 Iowa 3S0.
S84.
314 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§381.
An architect is not, it seems, usually authorized to receive notice of an
assignment of the contract on behalf of his employer.'*
It is sometimes stated that authority to an architect to superintend th&
erection of a building makes him an agent for all purposes necessary to
secure thfe erection and safety of the building/
There is little authority for the statement if one is to infer from it
that the architect or engineer has power to make material changes in the
contract, specifications, plans, or can order additional or different materials-
on the credit of the owner or company. This statement is founded upon
four or five cases decided in the same courts. One wherein a contractor
• recovered for furnishing 8-inch iron pillars ordered by the architect in the
place of 6-inch iron pillars called for in the contract. The structure had
been accepted by the county, and the work was a public work [a court-house].'
The courts of Indiana have adopted this rule in several cases of public
works, where work is undertaken by a board of commissioners who are
more than likely to be ignorant of the needs of a structure.* \
381. Engineer's Powers to Determine Quantities.
" To prevent all disputes and litigation it is further expressly agreed
by and between the parties to this contract and their legal representa-
tives, that the said engineer [said architect'] shall determine the
amounts, quantities, and weights of the niaterials furnished and of the
work done."
The estimate of the amount and quantity of work and materials
employed is, without doubt, the engineer's most legitimate business, and
should always be made one of his duties. His education and experience
have been to that end, to enable him to skillfully and expeditiously measure
and correctly estimate the quantities of work and materials.
The engineer should consult the contract to ascertain how he shall make
the measurements and computation. Although engineers are generally
left to their own discretion, to employ whatever rules or methods they
deem best, yet frequently the contract provides for the use of certain rules
or tables or methods, in which case the contract must be followed strictly.^
Clauses which provide that in calculating the quantity of masonry,
walling, and excavation, the most rigid geometrical rules shall be applied,
any custom to the contrary notwithstanding, are sometimes met," X ^^^
although perhaps prudent in a strange place, or in a government contract
*Renton v. Monnier, 77 CjiI. 449, ton Co. v. Patrick, 54 Miss. 240 ; Bnss v.
» 29 Amer. & Ena:. Eocy. Law 882 ; Board. 115 Ind. 234, but tliere are rauny
Clarke's Owner, Architect, and Builder cases to the contrary.
Before the Law 82. ^ Williams v. Chicago, etc., Ry. Co.
3 Gibson Co. v. Motherwell Iron Co , 123 (Mo ), 20 S. W. Rep. 631.
Ind. 364. 6 Martinsburg P. R. Co. «. March, 114
4 Clinton Co. v. Hill, 122 Ind. 215 ; Har- U. S. 549 [1884].
ris Co. v. Byrne, 67 Ind. 21 ; and see Ben-
* But see Sec. 849a, infra. f See supra and Sees. 553-568, infra.
, X See Sec^. 60S-4, infra.
§ 382.] CONTRACT STIPULATIONS. 315
which may be entered into and executed in different places, yet their use
may lead to difficulties. They are good in that they protect the govern-
ment or company fi'om exorbitant prices authorized by local trade customs
and usage, and enable the cost of a projected work to be more definitely
ascertained; but since the rules and methods of computing earthworks and
masonry are but approximate to the exact amount, it opens a field for dis-
pute as to what is or is not the exact geometrical value of the work
and materials, which is no easy problem to solve, especially after the work
has been done and settlings, subsidences, cavings, and washings have taken
place. Probably no two engineers or surveyors would make exactly the
same estimate of a piece of work or of a quantity of materials, although
they should agree approximately; yet the difference would be sufficient
ground for a quarrelsome contractor to appeal to a jury and make trouble,
which illustrates the wisdom of making the engineer's determination of
such questions final and conclusive.*
If no particular method of measurement and calculation is required by
the terms of the contract, the most appropriate rule is that which is coun-
tenanced and usually employed in the trade under which the work may be
classed. If the engineer is acting in the capacity of a referee or quasi-
arbitrator he may employ any method ,that his good judgment and con-
science may dictate,' which will be that which the parties may agree upon,
or til at they had in mind when the contract was entered into, if that can be
ascertained. That method of admeasurement which shall give to each that
which he is justly entitled to under the terms of the contract should be the
one adopted, if the engineer has any choice, and that will be the rule
which is most correct.
When the quantities of several different materials of excavation, for
which different prices are to be paid, were to be determined "by the
measurement and calculation " of the engineer, it was held not to require
him to measure each kind of material excavated, but that the word " cal-
culations" should be understood in the sense of the term "estimate," and
that when the whole cut or embankment had been measured he could
determine, by reference to the known contents and data collected, the
quantities of the different materials excavated."
382. Engineer must Act in Good Faith and Have Strict Regard for the
Methods Prescribed in Contract. — The engineer cannot exercise his selection
of a rule arbitrarily. He cannot perform his duties by making a mere guess
of the quantities handled; they must be exercised in a reasonably correct
and careful manner.' A method of estimating earthworks which does not
1 Palmer v Clark. 106 Mass. 373 [1871] ; ^ gcoville v. Miller, 40 111. App. 1?37.
hut see Hartwell v. Mut. Life Ins. Co., 50 ^ Henderson i\ Citv of Louisville, 4 S.
Him 497 [18881; and s-e Fellows v. Sny- W. Rep. 187; Anderson «. Imhoff (Neb.),
der (Kan.), 32 Pac. Rep. 639, which held 51 N. W. Rep. 854; hut see Palmer v,
it a question for jury. Clark, 106 Mass. 373 [1871].
* See Custom and Usage, Sees. 603 to 638, infra.
316 ENOINEEBINO AND ARCHITECT UB A L JURISPRUDENCE. [§ 382,
take into consideration or allow for the loss of materials from subsidence and
settling, or for the waste due to erosion, has been successfully attacked and
declared erroneous, and an injustice that the courts would not permit/ A
contractor who is filling in a trestle with dirt should not be allowed the
measurement of the space occupied by a culvert under the ti;estle.'
Under a contract to haul and embank excavations, which provided that
"the measurements of the quantities will usually be made in the cuts or
pits from which the material has been taken," and further, "that the quan-
tities and amount should be determined by the chief engineer, whose deter-
mination shall be conclusive upon both parties," it was held that as the
specifications showed that the measurements were not in all cases to be
taken in the" cuts, that the exception would have to be determined by out-
side testimony, which resulted in the court ordering the measurements
being made of the embankments, instead of in the cuts, as the engineer had
determined.' This decision was arrived at from the existence of a usage to
measure rock excavation, over which the controversy had arisen, in the
embankment, and the decision was followed some years later in a very simi-
lar case/ These decisions are decided upon narrow ground when based
upon so small a technicality as the use of the word tisualli/ as here employed
would warrant, and it is submitted that the testimony must indeed have
been very strong that would sustain such a departure from the decision of
earlier cases. The word usually may have been introduced to accommodate
the engineer in his estimates and to avoid the delay of the work when
measurements had not been made where the contractors wished to work.*
These Texas cases also support in a degree the statement that when
the contract provides that the engineer shall determine the quantities of
work it does not give him the conclusive determination of the manner in
which it shall be done according to the contract. It does not give to the
engineer the interpretation of the contract." The contractor may show
that the engineer misconstrued the contract in his classifications of the
work, and had not measured the work according to the contract, and he
may show these things by evidence without alleging fraud.'' It is wrong,
therefore, to admit evidence varying the standard of measurement fixed by
the contract so as to show a greater amount of work done by the contractor
than would be shown by measurements in accordance with the terms of the
1 Henderson v. Citv of Louisville (Ky.), Texas 256 [1889]
4 8 W. Rep. 187 [1887]; Clark v. « Lewis ^). Chicago, etc., R. Co. 49 Fed..
United States, 6 Wallace 543 [1867] ; and Rep. 708 nnd 714.
see M'Intosh v. Midland Cos. R. Co., 14 *' Williams v. Chicao, etc., Ry. Co.
M. & W. 548. (Mo), 20 S. W. Rep. 631.
2 East Tenn. R. Co. ■». Matthews, 85 Ga. ' Willijims v. The Ciiicaijo, etc., Ry.
457. Co.. 112 Mo. 463 [1892]; accord LlwIs v.
3 G. H & S. A. Ry. Co. v. Henry & Dil- Chicago, etc . R. Co.. 49 Fed. Rep. 708;
ley, 65 Texas 685 [1886] ; see <tlso Mulhol- Sumtiiers v. Chicai-'o, etc., R. Co , 49 Fed.
land V. New York, 20 N. E. Rep. 856 Rep. 714: and see Sherman v. New York^
[1889]. 1 N. Y. 316.
4 G. fl. & S. A. Ry. Co. v. Johnson, 74
§ 384.] CONTRACT STIPULATIONS, 317
contract, though it provides that the estimate of the engineer is to be con-
clusive as a basis of payment, and such overmeasurement is made by him,
since such estimate is conclusive only on condition that it be made in
accordance with the terms of the contract.' *
383. Engineer's Power to Determine Quality, Character, and Classifi-
cation.
" That he shall determine the kinds, nature, quality, character, and
classification of the work done and the materials furnished, employed,
excavated, quarried or mined, as the case may be, or of the tools, appa-
ratus, or machinery manufactured.''
This clause gives to the engineer the determination of the class to which
the work done or the materials supplied most nearly conforms or agrees.*
It may include the inspection, acceptance, or rejection of work, tools, and
machinery, and the culling or condemning of inferior materials. Different
prices are paid for different classes, and it is a difficult matter to draw the
line where the one class shall end and the next class begin. Such questions
would afford no end of strife and litigation if they were not determined in
some definite and arbitrary manner.
The engineer's decision is generally made the ultimatum on such ques-
tions, and the justice of his classification will depend much upon his knowl-
edge of the trades and the materials employed by them, or upon the care
with which he inquires into them when the questions are presented. An
improper or hasty classification of materials or work might cause great
injury to either party to the contract.
384. Classifications must Be According to Contract. — Frequently the
rules for classifying are described in the specifications, in which case the
description must be carefully studied and rigidly applied. If the time
when the classification is to be made is not expressed such classification
may be made before the work is completed.^ The materials and work must
be classified strictly in accordance with the express terms of the contract
and by the rules, scales, and tests agreed upon. No materials or work can
be accepted which the contract forbids, nor any be dispensed with which
it requires. If the contract specifies that mortar shall consist of equal
parts of Portland cement and sand, it has been held that a different mixture
could not be authorized.* An engineer has no power to change the terms
of contract, or to refuse to classify as loose and solid rock that which the
contract expressly declares should be loose and solid rock.'
^ Fisher??. Borough, 1 Pa. Super. Ct. 386; * Fitzgerald v. Moraa (K Y), 36 N. E.
accord Gonder v. Berlin Br. R. Co., 171 Rep. 508.
Pa. St. 492 [1895]. & Williams v. The Chicago Rv. Co., 113
2 Biowu V. Decker (Pa.), 21 Atl. Rep. Mo. 466 [1892] ; and see also Mansfield v.
903 [1891]. Railroad, 17 Ohio 396; 2 Sutherland on
=» Kicker v. Collins (Tex.), 17 S. W. Rep. Damages 520; 2 Wood on Ry. Law 995;
382 [1891]. Starkey v. DeGraff, 22 Minn. 431; Rail.
• See Sees. 370, supra, and 381-388, infra.
318 ENOINEEBINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 385.
The contractor cannot be required to furnish materials for testing and
experimenting when contract does not provide for it/
385. Engineer cannot Make a New and Intermediate Classification. —
When a contract named prices for several classes of excavation and the
engineer was to designate the class to which work done belonged, it was
held that he could make no new or intermediate class or concomitant price;
that when the prices were fixed by the contract at seventy-five (75) cents
per cubic yard for rock and thirty-five (35) cents for earth excavation, that
he could not allow a different price, as fifty (50) cents for loose rock. Such
an act was held in excess of the engineer's powers; that he must make the
classifications as described in the contract and not according to what he
thought would be reasonable. The making of a new price was held^ in
effect, the making of a new contract.'
A recent case seems opposed to this. Under a contract which pro-
vided that if excavations could not be plowed by a good six-mule or six-
horse team, it was to be classed as loose rock. The engineer made a classi-
fication which allowed twenty-five per cent, loose rock when six horses could
plow half of the time, and fifty per cent, when eight horses were required,
and the court held that there was no material error in the engineer's classi-
fication, and that the estimates should not be set aside."
When, as in the preceding case, materials are to be classified in accord-
ance with a certain test, it is not well to name the materials of the class
unless it be the intention to include them in that class, irrespective of the
test. Thus, in a case where excavations were to be measured and paid for
either as earth, loose rock, or solid rock; loose rock to comprise "shale or
soapstone, lying in its original or stratified position, coarse bowlders in gravel,
cemented gravel, hardpan, or any other material requiring the use of pick
and bar, or which cannot be plowed with a strong ten-inch grading-plow,
well handled, behind a good six-mule or horse team;" it was held that the
materials mentioned were to be classified as loose rock, irrespective of the
plowing test, which was only applicable to the " other material," not spe-
cifically named.*
386. No Extra Compensation can be Allowed to Relieve Against Hard-
ship.— Extra pay cannot be allowed by the engineer for picking where
the excavations are difficult when the contract provides for the classifica-
.tion of the materials excavated under it at prices named.* When certain
prices were agreed upon for several kinds of work, and an extra allowance
roacl v. Wilcox, 48 Pa. St. 161; DuBois v. Co. -». Vosburgh, 45 111. 311.
Railroad, 12 Weud. 334; Bridge Co. v. ^ Ross v. McArthur, 85 Iowa 203. In
McGrath, 134 U. S. 260. this case it is but fair to state that this
* Steffen v. St. Louis (Mo.), 36 S. W. classification was suggested by the com-
Rep.31. pany. ^ri(?5^Du Bois-?). Del. &H. C. Co.,
2 Drhew v. City of Altoona, 121 Pa. St. 12 Wend. 334.
421, see also South «. South, 70 Pa. St. 195; ^ Lewis v. Chicago S. F. & C. Ry. Co.
and Nesbitt v. Louisville, etc., R. Co., 2 (Cir. Ct.), 49 Fed. Rep. 708.
Spears (S. C.) 697; and Chicago, etc., R. ^ Drhew v. City of Altoona, supra.
§ 387.] CONTRACT STIPULATIONS. 319
was made for excavations, and the contract provided that the engineer
should be "sole judge of the quality and quantity of work done and of
materials furnished, and of any questions arising under the contract, and
irom his decision there should be no appeal," it was held he was not author-
ized to refuse an extra allowance for frozen excavations, for the reason
that it was the contractor's own fault, and that the work might have been
done before cold weather set in. Such a holding by the engineer was
declared a going behind the agreement of the parties, which the engineer
<3ould not do. That the engineer had no authority to vary the terms of the
agreement and to fix another or a different measure of compensation.'
387. English and American Decisions Compared.^The English courts
liave not been so arbitrary in limiting the powers of the engineer, and some
Tery different decisions have been the result. In a contract a certain price
was fixed for "excavation," and the price of " any other description of
work " was left to the engineer, and the question arose whether the removal
of a large quantity of very soft and swampy soil was excavation within the
terms of the contract, or if not, whether it could be considered as within
the phrase " any other description of work." It was held to be a proper
■question for the engineer, who was by the contract to determine any dispute
or differences arising between the contractor and company as to the mean-
ing of the presents, or anything contained in the contract, or anything to
be done thereunder,* and that the arbitrator [engineer] might allow a
•different [greater] price for such work [excavations].' The contractors
successfully contended that under the clause in the schedule of prices for
"any other description of work " the engineer (as the soil had turned out so
different from what had been anticipated) could reform the schedule of prices
lor the excavations.
Although the powers given to the engineer in the English case were more
extended than in the American, it is interesting to state that the arguments
of the company's counsel [the losing side] of the English case we-e almost
identical with the dictum of the judge in the Pennsylvania case/ which
is directly to the contrary. If the cases are to be reconciled, it ntast be by
the presence of the clause leaving the price of "any other description of
work" to the engineer, and by the extended powers accorded the engineer
by the English courts.
To the same effect as the English decision is an early American case
£1853], in which the engineer fixed the price of a species of excavation not
mentioned in the specifications or contract. This contract gave no extraor-
dinary powers to the engineer, but stipulated " that the engineer should Le
» Starkey v. DeGraff, 23 Minn. 431 12 App. Cas. 738 [1887] ; see also Bmuey
{1876]; and see Phelan v. Albany, etc., R. v. Town of Millbury (Muss.) 44 N. E. i^ep.
Co . 1 Lans. (N. Y.) 258. 1060 [1886].
2 Kirk & Randall v The E. & W. Dock ^ Drhew v. City of Altoona, 121 P&. «^
Co., 55 L. T. R. (N. S.) 245 [1887]; s. c. 421.
* An exceptionally strong clause.
320 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 388.
inspector of the work ; that he should determine when the contract was
complied with, according to its just and fair interpretation, and the amount
of the same, and that his decision should be obligatory and conclusive, with-
out further recourse or appeal.^
If the engineer acts, and his decisions are within the powers conferred
by the contract, there is no appeal from his decision unless it can ba
proved that he has not exercised his fair and honest judgment. Thus when
an engineer classified " pier masonry " as " bridge masonry," for which a.
smaller price was paid, his decision and classification was held conclusive
unless impeached for fraud, or such gross mistake as necessarily implied
bad faith, and the fact that the price was inadequate and unjust was held to
make no difference." *
Other familiar examples are such as require the engineer to discriminate
between good and poor work, to determine what materials are sufficient to
meet the requirements of the contract, as the class to which masonry
properly belongs, or where to classify excavations either as rock, clay, loam,,
hardpan, or gravel, to select and grade lumber, and cull that which is^
inferior or unsuitable, and, in short, to determine the relative merit and
value of all the parts that make up the structure.
388. Powers to Determine the Sufficiency and Skill with which Work
is Performed.
** That he shall be sole judge of the quality of the work, and of the
skillfulness and sufficiency with which it is performed, and the work-
manlike manner in which it is completed."
This power, like others conferred, is to be read along with the rest of the
contract, and must be exercised in accordance with the specifications and
terms agreed to by the parties in their contract. Much may be left to the engi-
neer's discretion and judgment, which is for his own honest determination;
but so far as the contract and specification show an evident^ intention to
limit that discretion, and to fix or name the quality of the work, and the
perfection of its execution, so far must the engineer follow their descriptions
and instructions."
He must first determine its fitness and conformity with the speci-
fications and requirements of the contract, and as to the rest consult his;
own discretion and good judgment. If work, hp must decide whether it
has been executed in the manner and to the degree of perfection promised
or demanded in the contract. He cannot dispense with the performance of
a substantial part of the work. He may decide matters left to his judg-
ment, such as whether work has been executed in a workmanlike manner,,
or whether materials are of the kind required, but, as has been said, it can^
J Condon v. South Side R. Co., 14 Gratt. U. S. 549 [1884].
(Vm.) 302 [1858] . 3 Lewis v. Yagel, 77 Hnn (K Y.)337r
^ Martinsburg & P. R. Co. -». March, 114 Burke v. Kansas City, 34 Mo. App 570.
* See Sec. 378, supra.
§ 388.] CONTRACT STIPULATIONS. 321
not be contended that lie could accept a brick house for one to be built of
marble ; nor would the fact that the brick house was substantially, and for
service, as good, and even better, than the one of marble, render his decision
any more binding.*
However conclusive the engineer's decision may be declared, or however
strictly the contractor is to follow his instructions in all things, they will
not justify a departure from the express terms of the contract without there
is a collateral agreement between the parties themselves to the same effect.'
Masonry laid in mud cannot be accepted for masonry to be laid in cement,"
nor bluestone for brownstone, nor a twelve-inch wall for a sixteen-inch wall,
nor four-inch curbs for six-inch curbs,* nor railroad ties with ten-inch faces for
ties with twelve-inch faces. Acceptances of such work which are not in con-
formity with that specified in the contract are beyond the power of the
engineer and are pretty good evidence of fraud and collusion with the con-
tractor.
When it was stipulated
" that materials shall be of the best quality and the work performed in
the best manner subject to the acceptance or rejection of an architect,
all to be done in strict accordance with the plans and specifications and
to be paid for when done completely and accepted,"
it was held that an acceptance by the architect of a different class of work
or of inferior materials did not bind the owner and did not relieve the con-
tractor from the agreement to perform the work according to the plans and
specifications.^ It was so held when a contractor who had undertaken by
contract to build a sewer according to plans, profiles, and specifications and
according to the directions of the city engineer, and who instead had fol-
lowed the orders of an assistant engineer detailed to supervise the work, and
had laid part of the sewer-pipe at a less depth than was shown on the plans
or required by the specifications. A new assistant engineer having been
detailed in charge of the work, he ordered the pipe taken up and relaid to
grade shown on plans. The contractor did as ordered and made claim for
the extra work, and it was held he could not recover; that the contractor
had done only what the contract had required him to do, and the engineers
had no authority to vary the plans and specifications of the contract.* * The
acceptance by an architect of heating apparatus installed does not require
» Bond «. The Mayor, etc., 19 N. J. Eq. ^ Qiaucius v. Black, 50 N. Y 145.
376 [1869] This is a strong case, but it il- [1872]; Johnson v. DePeyster. 50 N. Y.
lustrates the principle the better for that 666, and Adlard v. Muldoon, 45 111. 193;.
reason. See Smith v. Brady, 17 N. Y. 173, see also Bird v. Smith, 64 E. C. L. R. 785.
which held that the architect's certificate • Burke v. Kansns City. 34 Mo. App.
could not dispense with the substantial fill- 570: Bonesteel v. New Y'-rk, 22 N. Y.
fillment of the provisions of the contract. 162; Bond v. Newark, 19 N. J. Eq. 376;
8 Burke v. Kansas City, 34 Mo App. 570. Hartupee v. Pittsburgh, 97 Penna. St. 107r
" btuie V. McGuilley, 4 Ind. 7; Fitz- and see Adams v. New York. 4 Du(^r 295;
gerald v. Moran, 141 N. Y. 419. Goldsmith v. Hiind. 26 Ohio St. 101; Star-
* Bond V. Mayor, 19 N. J. Eq. 376 [1869] key v. DeGraflf. 23 Minn. 431.
■ * See Sees. 370. 381-388. supra, and 465-468. infra.
322 ENGINEERING AND AliCIIiTECTUllAL JURISPRUDENCE. [§ 389
owner to pay for it when the specifications guaranteed that it should keep
the house at a certain temperature, which guaranty had not been per-
formed/
These cases might have been decided otherwise if architect's decision
had been made final and conclusive and he had been given the determina-
tion of disputes and questions arising out of the contract or work, and of
the construction and meaning of the drawings, specifications, and contract.'
389. Powers of Engineer or Architect may be Extended by Other Clauses,
so as to Permit Some Deviations from Plans and Specifications. — Thus in
a contract providing that the contractor should take down all defective
walls and rebuild them according to the architect's plans, specifications,
etc., and by which the architect was made the superintendent of the work
and materials, with full power to inspect, accept, or reject any work done,
or materials to be used, whether worked or otherwise, when not in accord-
ance with the plans, specifications, and detail drawings, and which made
the architect's decision in that matter and all other matters relating to the,
building binding and conclusive upon both parties, the court held that the
contractor was justified in following the architect's instruction and that he
was not bound to take down walls not directed to be taken down by the
architect, even though required by the plans and specifications.'
The decision of this case is seemingly contrary to those cited in the pre-
ceding section, and especially with the New York case, Glaucius v. Black.
The New York case was not regarded as an authority to govern the Illinois
case because the architect's powers were more limited. In the New York
case, the work was subject to the acceptance or rejection of the architect, and
all to be in strict accordance with the plans and specifications, the architect
having power to reject any particular work or materials, and in such case the
builders were to remedy the defects. This was the extent of the architect's
authority, and it was held that his acceptance of the work did not relieve
the contractors from their agreement to perform the work according to
the plans and specifications. The court based its decision in the Illinois case
upon the fact of the architect being made superintendent, not only with the
power to inspect, accept, and reject work or materials not in accordance with
plans and specifications, but, in addition, the larger authority to de4:ermine
" all other matters relating to the building, and all other work referred to in
the agreement, which decision should be binding and conclusive in regard
to the same upon both parties alike."
These rules are founded upon the laws of arbitration which confine the
decision of the referee to the subjects mentioned and the powers granted
in the contract of submission. The authority cannot be extenaed, nor
1 Gay V. Hfiskins. 31 N. Y. Snpp. 1022; » Boonett v. Glattfeldt. 120 111.166 [1887];
«^eFitzireral(l v. Moran, 141 N. Y. 419. Smiih v. Farmers' Trust Co. (Iowa), 66 N.
2 Semhle Wyckolf «. Meyers, 44 N. Y. W. Re >. 84; Glaucius v. Black, 50 N. Y.
143 145, contra.
§ 390.] CONTRACT STIPULATIONS. 325
any items included beyond those comprised in the original submission. All
other questions must be rejected.' If questions are phiinly within the
reference and clearly were intended to be left to the engineer's discretion
and judgment, the parties must abide by his decision if his judgment is-
honestly exercised.'
390. Prior Promise to Classify Work or Materials in a Certain Way Not
Always Binding. — When it was provided that, "at the end of the work,
the engineer shall certify the quantity and character of the work done
and that the contractor shall be paid according to such certificates,'^ to
obviate any disputes as to the measurements of certain excavations the
engineer told the contractor he would classify certain work to be done
as '^75 per cent, solid rock," with which arrangement the parties
expressed themselves as satisfied. There was no intention to make or
consent to any arrangement outside of or inconsistent with the written
contract. After the work was finished the engineer, in his final certificate,,
fiiiled to adopt the classification promised, and it was held that the final
determination of the engineer was binding on the parties, and the con-
tractor must accept what the final certificate allowed him independent of the
engineer's promise. Such an agreement by the engineer was held not to-
mod if y the terms of the contract between the parties ; but had the arrange-
ment been between the company and the contractor, and in the form of a-
collateral or subsequent agreement, the decision must have been different
and the contractor have recovered for '*75 per cent, of solid rock."'*
An act of an engineer in increasing the monthly estimates of a contractor
beyond what was justly due to him to enable him to meet his payments,
and with the understanding that in the final estimate a reduction of the
proper amount should be made, does not commit the owner to the con-
sequences of the engineer's misconduct while acting as arbiter for both
parties/ An antecedent verbal agreement between contractor, owner, and
engineer as to quality of materials that would be accepted cannot be shown.*^
These cases are authority for the oft-repeated statement that the author-
ity of an engineer is limited to the powers and duties conferred by the con-
tract. He cannot order extra work on behalf of his company nor promise
beforehand any particular classification. When put in charge of construc-
tion as inspector he has no authority to permit deviations or changes in
* Doane College v. Lanlmm (Neb.), 42 an approval of materials in advance could
N. W. Rep. 405 [1889]. not be revoked ; and see Bradner v. lioff-
2 Henderson Bridge Co. v. O'Connor, 11 sell (N. J.), 29 All. Rep. 317 ; and see also
S. W. Rep. 18 [1889]; Gerald 'd. Tunstall Ricker v. Collins (Tex.), 17 S. W. Rep.
(Ala.). 20 So. Rep. 43; and see Alton R. 37^ [1891] ; Gulf, etc., R. Co. v. Ricker
Co. V, Northcott, 15 111. 49. (Tex.); Price v. Chicago, etc., R. Co., 38.
3 Dorwin v. Westbiook, 11 Hun (N. Y.) Fed. Rep. 304.
405; Sharpeo San Paulo Uy. Co., 8 Ch. ^Qonder v. Berlin Br. R. Co., 171 Pa.
App. 607 ; hut see O Donnelly. Forrest, 44 St 492 [1895].
La. Ann, 845; and see Jones v. Gilchrist ^ Jones v. Risley (Tex.), 32 S. W. Rep.
(Tex.), 27 S. W. Rep. 890, which held tbat 1027.
*As to classification, see Sees. 378, 383, supra, and Sees. 463-468, infra.
324 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 391.
plans approved and adopted by the department by which he is employed.*
He cannot arrange to accept defective or deficient work, and that the
deficiencies shall be made good to his company.''
391. Engineer to Determine the Value of Work and Materials.
" and that he shall finally determine in each and every case the value
of the several kinds of work and materials which are to be paid for
under this contract, and the compensation which the said contractor
shall receive therefor at the rates herein provided for."
In such a clause providing that monthly estimates shall be made of
the character, quantity and value of the work, the import of the word
*' value " as used is significant and to be distinguished from the word
*' price." The prices are usually fixed by the contract, and the "value'*
must be understood to be the result obtained by applying the prices sched-
uled in the contract to the quantities estimated and according to the classi-
fication made by the engineer.^ An instance is afforded in a case where the
■engineer was made the sole and final judge of the quality, character, value, and
number of materials furnished, and it was held that his decision as to quality
was final and conclusive, but not as to quantity.*
392. Engineer to Determine Questions in Regard to Additions, Omis-
sions, and Extra Work. .
^^and that he shall determine the question as to what are additions
and omissions, and the quantities, quality, character, classification, suf-
ficiency, and value of any and every materials and work arising from,
due to, or required by any alteration, deviation, addition, or omission in
the plans, specifications, or contract, or in any matters growing out of
the construction or completion of the works made or caused to be
made by the engineer or owner [company] or by the necessities of
the work, the same as if it had been included in the original specifica-
tions, plans, and contract, and all questions as to whether they are
properly and skillfully executed in conformity with the plans and speci-
fications, and his decision, estimate, and certificate in respect thereto
shall be a condition precedent to any right to recover therefor by the
contractor."
Without this clause the engineer's decisions may be confined to matters
strictly within the contract, plans, and specifications, and will not include
extra work.** Such a stipulation is binding upon the parties in the same
manner as those which precede in respect to work regularly within the con-
tract ; ® but a stipulation giving the engineer power to determine the true
value of extra work and work omitted does not make him a judge of what
' New York v. Hamm (Com. PI.), 24 N. ' Denver, etc., Ry. Co. v. Riley, 7 Colo.
Y. Siipp 730. 494 [1884].
2 Barcus v. Hannibal, etc., Pk. Rd. Co., ^Estel v. St. Louis, etc., R Co.. 56 Mo.
26 Mo. 102; Adlard v. Miildoon, 45 111. 282 [1874].
193; and see Bouesteel v. New York, 22 *Pashby -». Mayor, 18 C. B. 2; Starkey
N. Y. 162 : Burke v. Kansas City, 34 Mo. v. De Graff, 22 Minn. 431 ; Busse v. Ag-
App. 570 ; Bond v. Newark, 19 N. J. Eq. new. 10 111. App 527.
5i76 » Fowler «. Deakman, 84 111. 130 ; Mills
*>S^ Sees. 591-599, iw/r^- '
§ 394.] CONTRACT STIPULATIONS. 325
is extra work or whether the extra work done at an agreed price is properly
done.*
393. Provision that Engineer Shall Determine Every Question Arising^
Out Of or Pertaining to the Work or Contract.
"and he shall decide all and every question, dispute, difference, or
^ doubt relative to the execution, performance, fulfillment, and comple-
tion of this contract ;'* or "and he shall determine all and every ques-
tion, dispute, difference, or doubt in relation to and arising from said
work and the construction and completion thereof, and he shall in all
cases decide every question which may arise relative to the execution of
this contract [on the part of the said contractor].^'
394. Powers Defined Under Different Contract Stipulations in Use. —
Of the two clauses given the latter is to be preferred, insomuch that the
former confines the engineer's decisions to matters strictly within the con-
tract, and the latter includes all questions arising from the work itself.
This is important if it is desired to keep out of courts and to give every
question pertaining to the work to the determination of the engineer. The
former might fail to include "extra work," which could be comprehended
in the latter. Alterations and changes and sometimes additional works are
required as accessories to the projected work which do not belong to the
contract, but are a part of the structure.* They are usually undertaken
under collateral or subsequent contracts or mere verbal agreements or
orders. If the engineer's authority is confined to the contract as by the
first form it is doubtful if his jurisdiction would extend to such alterations,
changes, or new work, unless they were added to or made a part of the
original contract. [They have been provided for in a clause.] f
It is a question for the parties to consider as to what powers they will
give to their engineer, and what extent, if at all, they will limit them. It is
customary in America to give him full sway with regard to questions per-
taining to the work and materials and to everything that will enable him to
promote and expedite the work, and thus save time and expense. The wis-
dom of this cannot be questioned. If the proprietor or company have not
the confidence necessary for them to do that, they will do well to let their
engineer go and to get another one whom they can trust.
By the forms in use in England the powers of the engineer are more
comprehensive, frequently extending to every possible question or dispute
between the parties, even to the interpretation and construction of the con-
tract itself; but the justice and policy of giving such unlimited power is
questioned and their validity in the courts of this country doubted. Courts
are pretty certain to give such stipulations the narrowest interpretation
v. Weeks, 21 111. 561 ; McNamara v, Har- 11 Misc. Rep. (N. Y.) 49; Ball v. Doud
rison, 81 Iowa 486 ; Morgan v. Birnie, 9 (Oreg.), 37 Pac. Rep. 70 [1894].
Bmg. 672 ; Zimmerman v. Gerin, L. Cb., ^ See Morgan v. Birnie, 9 Bing. 672.
* See Sees. 593-599, infra, Extra Work; and see Sees. 370, aupra, and 395-396, infra,
jfSee Sec. 392, supra, and Sees. 593-599, infra.
326 ENQINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 395.
possible and will grant only those powers to an engineer which are clearly
and .expressly agreed to by the parties.
395. Instances in which Engineer's Decisions have been Held Not Bind-
ing under a General Clause — Extra Work. — For the purpose of compar-
ing the contract forms in use the following stipulations are cited, with the
decisions which have been rendered upon them: Under a stipulation that in
case " disputes and differences should arise with the contractors in any way
relating to the contract, or if any question should arise between any of the-
several subcontractors relating to the proposed buildings, such dispute^
difference, or question should be settled by the architect, whose decision
should be absolute and final,'' it was held that this condition applied only
to disputes as to the mode of carrying on the several works, and not to claims
for extra work by the contractors against the corporation. ^ * A stipulation
" constituting the engineer an umpire to determine all questions growing-
out of the contract and making him sole judge of the quality and quantity of
work done and materials furnished," was held not to extend to extra work
done outside the contract. By the decision of this second case it may be
doubted if the second form would cover such extra work, for it seems that
nothing less than an express provision for the measurement, classification^
and value of the extra work, and an incorporation of the agreement for the
extra work into the contract, will safely and certainly give to the engineer
the full determination of questions pertaining to it.'' Where the contract
stipulates for an arbitration in case of disputes as to the true value of extra
work or of work omitted, it does not include questions as to whether certain
work is extra work, or as to whether extra work done at an agreed price is
properly done. Such a stipulation, said the judge, would oust a court of law
or equity of all jurisdiction over the matter falling within the stipulation.*
In a case where a contractor was to be paid for certain improvements
[iron work] to a building, upon the estimate of the architect, and having-
prepared the materials for the improvements, the building burned up, it was
held that the case contemplated for the architect's estimate never arose, and
that a recovery could be had fop the materials wrought without the archi-
tect's certificate."
When the engineer is to decide as to disputes between the contractors as
to the manner of -connecting the work or otherwise, his decision is not a
condition precedent to the right of one contractor to maintain an action for
extra work caused by wrongful acts of another contractor.'
1 Piishby v. Mayor of B., 18 C B. 2 ; Doyle v. Halpin. 1 Joues & S. (N. Y.) 369;
O'Reilly V. Kenis. 52 Pa. ISt. 214. hut see Rej?. v. Cimon, 23 Canada Sup. Ct.
2 Starkey v. DeGraff. 22 Miuu. 431: but 62; and Sharp v. San Paulo R. Co., L. R.
see Reg. •». S;aiTs, 17 Can. Sup. Ct. 118. 8 Ch. App, 605, note.
» Weeks v. Little. 47 N. Y. Sir er. Ct. 1; * Rawson v. Clark, 70 111. 656.
Hart ». Launman, 29 Barb. (N. Y.) 410; ^ Delamater v. Folz. 3 N. Y. Supp. 711
Sinclair v. Tallmadge, 35 Barb. 607; [1889].
.* ASfe« Chapter on Extra Woik, Sees. 592-597, infra.
§ 396.] CONTRACT STIPULATIONS. 3'27
396. Other Instances Not Covered by a Sweeping Clause— Breach by
Either Party. — A provision that the engineer shall decide all questions tliut
may arise relative to the execution of the contract, and that his decision
shall be final, does not give him the determination of the question whether
the contractor has incurred a penalty provided for in the contract. The
question was as to the effect which the failure of the city to have the bridge
piers ready by a stated time had on the contractor's liability for liquidated
damages.'
A provision that performance shall be to the satisfaction of an architect
named, who is employed to adjust all claims of the parties to the agreement,
does not prevent the owner from suing the contractor and his sureties on a
bond for a breach of the contract before the architect had adjusted any
claims arising out of the breach.' A clause referring any disputes or differ-
ences as to the construction or meaning of the agreement and specification,
or sufficiency of the performance of any work to be done under it, or price
to be paid, to the engineer, whose decision should be final and conclusive,
was held not to give him the conclusive determination of the amount of
work done; but that the question whether the final estimate of the whole
work done was correct, might be properly tried by the court.' Price was
held to refer to the price per cubic yard, and not to the cost of the whole.
Under a provision that "' if the engineer certify that the contractors
liave failed or refused to supply skilled workmen or proper materials, the
owner may terminate the contract, take possession, etc., and that the ex-
pense and damage incurred by the owner shall be determined by the engi-
neer, whose certificate shall be conclusive," it was held that where the
contractor had wrongfully abandoned the work, and the owner had taken
possession, etc., that the engineer's certificate of the expense incurred by
him was not conclusive, he having made no certificate setting forth the
failure or refusal of the contractor to complete the work.*
When the terms of a submission were that arbitrators should 'investi-
gate the matters complained of and determine all questions that might
arise relating to compensation for work done under the contract, it was held
to include the determination of how much work had been performed, how
much of each kind of work, what the compensation should be for each part
and parcel of the said work, and whether the final estimate was correct and
just to the parties.^
When the contract referred to an architect " all disputes, however aris-
ing, and all questions of doubt as to the tenor and intention of the draw-
ings and specifications, or of the contract," and provided that the contractor
» King Iron Bridge Co. v. St. Louis, 43 Colo. 494 [1884].
Fed. Rep. 768 [1890]; see also Wood«. Ry. ^ cbailton v. Scoville (N. Y.), 39 N. E.
Co., 39 Fed. Rep. 53. Rep. 394.
* Oakwood Retreat Ass'n v. Rathbone ^ The People v. Benton. 7 Barb. 208
(Wis.), 26 N. W. Rep. 742 [1886]. [1849]; and see Gallaghers. Sharpless(Pa.),
3 Denver S. P. & P. Ry. Co. v. Riley, 7 19 All. Rep. 491 [1890].
328 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 397.
should deliver the building free from all claims, and should furnish and
provide, and deliver at his own cost, all necessary materials, it was held to
give the architect jurisdiction over the question whether the contractor and
his sureties were bound to refund to the owner the amount paid by him on
a mechanic's lien filed for materials furnished for the building/ *
397. Engineer's Power when the Contract has been Rescinded or Per-
formed.f — AVhen a contract has been rescinded by mutual consent of the
parties, but the contractor is permitted to continue the work, the engineer's
authority is at an end and expires with the contract. If a new agreement
be made, his powers will be limited to the extent that the new agreement
creates." Items that are not included in the original contract nor covered
by subsequent extension cannot be allowed in the award.' If the structure
has not been completed under the terms of the contract, the engineer can-
not determine questions and disputes arising from work subsequently per-
formed on or about the works * This might be different, however, under a
provision that the engineer shall " determine any and every question or
claim arising out of the contract.'*
Work done upon the job after ihe contract has been taken out of the
contractor's hands by the company is not done under the contract, and
therefore questions arising out of such work are not for the engineer's de-
termination and decision, unless they are so made by express agreement; a
recovery may be had for what such work is reasonably worth.* The con-
tractor should not be allowed to continue with work without a new and
formal contract. However, a suspension of the work in good faith by the
company according to an express provision in the contract will not relieve
the contractor from his agreement to abide by the decision of the engineer
as to the quantity and quality of the work done,* J and the question whether
a contractor's failure to complete works in due time, and the damages he
suffered, and the extra work required of him, was caused by the architect's
delay and default in supplying the requisite plans and setting out the lands,
was held not a proper one for the architect's determination.'
The want of the architect's certificate will not defeat the contractor's
right to damages for a breach by the owner of his contract," or a refusal on
' Biirclay v Deckerhoof, 171 Pa. St. 378 Rep. 185, 141 N. Y. 199 ; and see Gillen v.
[1895] Hubbard, 2 Hilt. 303.
'^ D. & H. Canal Co. -». Dubois, 15 Wend. « Snell v. Brown, 71 111. 133 [1873] ; hut
87 [1835]; and see Adams v. Cosby. 43 «ee Weeks ?). O'Brien (K Y. App.), 36 N.
Ind. 153. E. Rep. 185.
' Doaue College?). Lanham (Neb.), 42 N. 'Roberts 'O. The Bury Improvement
W. Rep. 405 [1889]; St. John v. Potter Com'rs, 39 L. J. R. 120 ; and see Mich.
(Com. PI.), 19 N. Y: Supp. 230; Osborne Ave. M. E. Ch. v. Hearson, 41 III. App.
V. O'Reilly, 42 N. J. Eq. 467. 89, and Memphis & L. R. Co. v. Wilcox.
4 B attie v. McGregor. 10 Scotch Ses- 48 Pa. St. 161 ; McAlpine v. L. & A Ry.
sioiis Cases 1094 [1883]. Co., 17 Scotch Sessions Cases 113 [1889].
^OReilly v. Kerns, 52 Pa. St. 214; • Linch^. Paris Lumber Co., 80 Tex. 23.
Weeks v. O'Brien (N. Y. App.), 36 N. E.
* See Sec. 370, supra. f See Sec. 745, infra. % See Sec. 745, infra.
§ 398]. CONTRACT STIPULATIONS. 329
his part to allow the contractor to proceed with the work.' A stipulation
that the engineer's decision shall be final and conclusive in any dispute
-which may arise between the parties does not include the question of dam-
ages to contractor from a rescission of the contract.' A provision for
payments every two weeks on the architect's certificates for the amount of
-work done, less 15 per cent., which is to be held until completion of the
contract, relates only to advances to be made while the work is progressing.
If the contractor is prevented from completing the work by the other party's
insolvency, he need not produce certificates in order to recover.*
398. Engineer's Powers when Contract has been Modified by Subsequent
Agreements. — A material modification of a written contract by a subsequent
parol agreement reduces the whole contract to parol, and the written con-
tract can be used no further th^n to mark the terms and extent of the new
stipulations.* When such a parol modificition has been made, a provision
in the original written contract ''that the engineer should be the final arbi-
ter of disputes " remains in force, but his decision is not final if he entirely
ignores the subsequent parol agreement;^ and whether a change agreed to
by the parties is or is not such a material modification as to reduce the whole
to a parol agreement is a question for the jury."
Under an agreement that the engineer should determine " all questions
arising relative to the execution of the contract, and that his decision should
be final and conclusive," it was held that the engineer's jurisdiction did not
extend to additional compensation due, under a subsequent promise, made
when the contractor had threatened to rescind the contract on the ground
of misrepresentation.' The decisions have gone so far as to hold that if a
contract was entered into, based upon certain plans and specifications, and
new plans were adopted and alterations made which made the job a mate-
rially different piece of work, and to which the contractor had to conform,
and to which he did not assent, that the binding effect of the original con-
tract was destroyed, and therefore j;he conclusiveness of- the engineer's decis-
ions was at an end.'
Another instance is a case where an implied contract was held not to be
subject to the engineer's decisions. When the contract was made, certain
obstacles were to be removed by the company, who delayed the removal for
an unreasonable time. It was held that there was an implied contract that
there should not be unreasonable delay, and that the contractor was entitled
» Velsor«. Eaton (Sup.). 14 N. Y. Supp. All. Rep. 756 , and see City of G. T.-Dev-
467 ; Hall v. Bennett. 48 Super. Ct. N. Y. lln (Tex.), 19 S. W Rep. 395.
802 ; and see Dinsmore v. Livingston, 60 * Mnlone v Pbila., etc., R. Co. (Pa.), 27
Mo. 241, and Yates v. Valentine, 56 Mo. Atl. Rep. 756.
530 « Mnlone v. Phila., etc., R Co. (Pa.), 27
* McGovern v. Bockins, 10 Phila. (Pa.) Atl. Rep. 756.
438. "I Osborne v. O'Reilly, 42 N. J. Eq. 467,
3 Childress v. Smith (Tex. Civ. App ) 37 9 Atl. Rep. 209 [1887].
S. W. Rep. 1076. » County of Cook v. Harms, 108 111. 151
4 Muloue V. Phila., etc., R. Co. (Pa.) 27 [1883].
330 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 399.
to damages. The engineer was clothed with the usual powers, and in addi-
tion was authorized to extend the time for completion in consequence of
this anticipated delay. The court held that the question, between the con-
tractor and company, as to the amount of damages suffered from the delay^
was not a matter in connection with the contract such as to make the en-
gineer's certificate final and binding.^
399. Many Gases Hold that Agreements for Changes and Alterations Are
subject to Engineer's Determination Same as for Work Under Contract. —
The decisions on these poinis are not all one way. There are cases in which
the courts seem to have had more regard for the evident understanding be-
tween the parties and less for the technical phraseology of the contract. Thus
alterations required under a provision "that alterations directed by the
engineer should be made as directed," were held not to abrogate the con-
tract or substitute a new one, but that they were within the original contract,
and therefore within the jurisdiction of the engineer to determine and esti-
mate,' and where a higher class of masonry was required by the engineer
than was contemplated in the specifications or the contract, wliich was built
by the contractor under instructions from the company that work should
be done " as directed by the engineer," and that they would pay what it was
reasonably worth, it was held that the whole work, including the extra
work required by the engineer, under the subsequent parol agreement,
should be estimated by the engineer; that the special contract would be
pursued so far as the intention of the parties could be traced, but that it must
be taken in its proper connection with the oiiginal contract, with reference
to and in modification of which it was made; that all the work was to be
done as the engineer directed; that changes were to be made z/ the engineer
directed them, and as the engineer directed, and all was to be estimated by
the engineer; and the court held that if the engineer was not to determine
the nature, quality, and quantity of the extra work, it would doubtless have
been so stated.*
This, it is submitted, is, without doubt, the reasonable construction of
the subsequent parol agreement, and the universal understanding under
which such changes are directed and made, as every engineer and impartial
contractor will agree; but courts have not their practical experience, nor
their understanding of such matters, and if parties will certainly and
surely bring extra work and collateral and subsequent agreements within
the engineer's jurisdiction, they will either make such work or agreements
a part of the original contract or stipulate for the engineer's determination
as to each, at the time it is done or entered into.
If the contract has been relinquished by mutual consent and payments
have been made and received, according to the estimates of the engineer,
J Lawson v. Wallesly Board, 62 L. J Q ' O'Rcillv v. Kerns, 52 Pn. St 214
B. D. 302 [1882], L. K 11 Q. B. D. 229 sMcCauVv r Keller, 130 Pa. St 53
[1883]. ^1889], 18 Atl. Rep. l07.
§ 309.] CONTRACT STIPULATIONS. 331
they will be considered as evidence of the intention of the parties to have
the work determined in that manner. The contractor having taken the
payments without objection or complaint, according to the engineer's
estimates and classification is precluded from denying them afterwards
when the work has been finished.* But if the original contract has been
rescinded, the contractor is no longer bound by his submission to the
engineer's decisions, nor limited in his claims to the compensation specified
in the contract. He therefore is not compelled to bring his suit upon the
special agreement, but may sue upon a quantum meruit, and the amount
of recovery will be determined by a jury, and the engineer's estimates will
have no binding effect.' In this there lies a lesson for companies and
^engineers, if they will avoid the uncertain determination of juries. Hasty
and imprudent steps to rescind or annul or relinquish a contract are not
to be taken. It may put work intended for the engineer's direction and
estimate into the hands of a court or jury, and involve all the difficultios,
vexations, and delays that the contract and the clauses of reference sought
to avoid. The contract should be kept whole so long as there are disputes
unsettled, unless a settlement be had or a release be given or a new agree-
ment be made that brings the act and its consequences within a clause of
the original contract providing for such an emergency.
An agreement to refer "the determination of amount or quantity of
several kinds of work and the compensation to be received therefor to an
engineer," and also that he should "in all cases decide every question which
could or might arise relative to the execution of the contract," was held not
to embrace a claim for damages arising from a refusal to permit the con-
tractors to proceed with the execution of the work.'
If the owner refuse to allow the contractor to proceed with the perform-
ance of his contract it has been held that the provision " that all disputes
as to the construction of the work and to the value of extra work, etc., shall
be settled by the engineer " ceases to be operative,* and that a stipulation
requiring the production of the engineer's certificate a prerequisite to com-
pensation cannot defeat the contractor's right to damages for breach of the
contract by the company or owner.'
It may be safely laid down as a general rule, that provisions making "the
decision of an engineer final and conclusive in all matters in dispute" relate
exclusively to matters embraced within the contract." So strictly and ex-
plicitly have some courts confined the powers of the engineer to the clear
and express terms of the contract, that the following clause was held not to
J Bonrd of Trustees of I. & M. Canal v. ' Launman v. Younge, 31 Pa. St. 306
Lynch, 10 111. 521; accord, Seymours L. [ISoS].
D Co., 20 N. J. Eq. 396 [1869]. 4 yejsor «. Eaton. 14 K Y. Siipp. 467.
2 D. & H. Canal Co. -». Dubois. 15 Wen- » Lynch i). Paris, etc., Co. (Tex.), 15 S.
dell 87; Bounett t). Glaltfeldt, 120 111. 175; W. liep. 208 [1891] ; Markeyu. Milwaukee
and see Mich. Ave. M. E. Ch. «. Hearson, (Wis ), 45 N. W Rep. 28 [1890].
41 111. App. 89; Linch v. Paris Lumber « Launman «. YoMuge, supra.
Co., 80 Tex. 23.
332 ENGINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 40a
make him sole judge of the final estimate: "It is further agreed, that in
case any disputes or differences shall arise between the company and con-
tractor as to the construction or meaning of the agreement and specification,
or sufiiciency of the performance of any work to be done under it, or the
price to be paid, all such disputes or differences shall be referred to the
engineer, who shall consider and decide the same, and his decision shall be
final to the parties who hereby submit all and singular the premises to the
award and arbitration of the engineer, and agree that the same shall be
final and conclusive between them to all intents and purposes whatsoever;
and it is further agreed that the submission to the engineer, touching all
matters herein agreed to be submitted to him, shall be deemed, considered*
and taken as an essential part of this agreement, and not revocable by
either of the parties thereto.'^ It will be noticed that measurements of the
work are not specifically mentioned, and although it was provided in another
part of the contract that the engineer should make "the final estimate of
all the work done,'^ it was held that the differences concerning this "final
estimate 'V were not, in terms, submitted to the final decisions of the engineer,
and could not by a fair and reasonable implication from the language
employed in the contract be included in the submission. It was held that
the language used did not singly nor collectively include the measurement
and final estimate of the work; that the engineer's estimate was not con-
clusive, but that the question whether the quantities had been under-
estimated was one that could properly be tried by a court of law.'
400. Engineer's Power to Determine all Questions may Sometimes be
Limited by Specializing.
"and the fact that the engineer's powers, duties, functions, authority
with regard to and concerning certain work and certain matters have
been specifically mentioned and enlarged upon, shall not be taken to
exclude his authority to consider and determine conclusively any and
all questions, doubts, and disputes arising out of, pertaining to, or con-
cerning the said works, and their prosecution, progress, construction,
operation, completion, and final settlement of said works, and of all
other works connected with, accessory to, necessary or convenient tO'
the safe, substantial, rapid, and proper erection and completion of the
aforesaid structure, or of the full and complete execution of this con-
tract.''
This clause is suggested on account of a rule of construction frequently
applied to contracts, that the general expressions of a contract ai-e to be
controlled by the special provisions it contains, for, as the courts have
said, why should parties particularize if general provisions are to control ?*
In answer to which it may be said that parties frequently particularize to
» Denver, S. P. & P. Ry. Co. v. Riley, 7 L. & W. R. Co. v. Bowns, 36 N. Y. Super.
Colo. 494 [1884]. Ct. 126 [1873]; Cree v. Bristol, 33 K Y.
^ Launman v. Yonnge, 31 Pa. St. 306; Supp. 19; but see Commonweal th Title
Story on Contracts, § 641; Denver v. S. Ins. Co. ■?; Ellis(Com. Pl.),5Pa. Dist. Rep.
P. & P. Co. 7 Colo. 494 [1884]; Delaware, 33.
§ 400.] CONTRACT STIPULATIONS. 333
emphasize and make clearer, without ever dreaming of destroying wliat
they have previously agreed upon or decided. Without this clause, the
decisions seem to indicate that it is at times dangerous to specify in detail,
lest the force of the provision be confined to the detail mentioned, and shall
not include general questions and disputes. Thus the words "all dis-
putes" in the introductory phrase of the clause at the beginning of the
chapter have been controlled and limited to the distinctly enumerated
grounds anticipated in the same sentence or clause, and that they have no
application, except to the disputes arising out of the work, the materials
employed, and the compensation to be paid under the contract.
As some of the undertakings of a contract must be specified in detail, it
is advisable to continue it throughout the contract and to comprehend
every possible emergency and difficulty that can arise upon, in, or about
the works, or under the contract. To do this would require almost super-
human powers, and it is the fallibility of such an undertaking that prompts
this stipulation. The citation of several cases will show its utility and the
protection it affords. For example, in a contract stipulation which pro-
vided that the engineer should " estimate the quantity and value of any
extra work that may be caused by the alteration of the line of the cy-nal, and
determine every other question necessary for the adjustment and final set-
tlement of this contract," etc., etc., it was held that the enumeration of one
species of extra work, viz., that due to alteration of the line, was an exclu-
sion of all others, and that other extra work, such as the excavation of
"hardpan," was not included in the classification named, and was not
therefore for the engineer's determination, and that the contractor was
entitled to recover whatever it was reasonably worth. And this was so held
notwithstanding there was a general provision that **the decision of the
engineer as to all the extra work and the allowance for it " was to be con-
clusive.* By the particular stipulation, the effect of the general provision
had been destroyed.
Although this case was practically overruled afterwards, yet it is instruct-
ive in that it shows the tendency of the courts to construe such clauses
narrowly, and it shows the danger of particularizing without it is carried
out. The higher court affirmed the judgment obtained by the contractor
but upon a different ground, viz., that the contract had been rescinded, by
which rescission the powers of the engineer were curtailed.
A striking case of the effect of specializing in part is sl.own where a con-
tract was let to build a house according to certain specifications, which con-
tained a description of every part, except the roof, stipulating the manner,
size, measurement, and material of each with great particularity; it was held
that the contractor need not furnish the roof.' Another example is afforded
> Dubois v. D. & H. C. Co. 12 Wendell, see Williams v. Fitzmaurice, 3 H. & N.
834 [1834]: see also 15 Wend. 87. 884.
* Reynolds v. Jourdan, 6 Cal. 108; hut
334 SNQINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 401.
»n a contract which provided that " If, at any time, the business of the
company is interrupted by storms, floods, breaks, accidents, combinations,
tuTnouts, strikes among tlie miners or other employees, or by any ocmcrrence
whatever," etc., the words *^ by any occurrence whatever '' were construed
in connection with the other words of the same sentence to mean atiy
unavoidable occurrence.^ An express provision for forfeiture of rights may
preclude an implication of other causes of forfeiture."
A special provision in a contract will be held to override a general pro-
vision only where the two cannot stand together. If reasonable effect can
be given to both, each is to be retained.'
401. Engineer to Determine the Meaning and Intention Expressed in
the Specification and Contract.
" that he shall determine every question in respect to, touching, or con-
cerning the meaning or intention of the specification and of this agree-
ment or of any part thereof, or of the contract entered into by and
between the company and contractor."
This is a clause com nionly found in English contracts for the construc-
tion of engineering and architectural works, but it has not found much
favor in American practice nor with American courts. A contract is sup-
posed to create or impose some certain obligations upon the parties, and to
confer certain well-defined rights as between the parties. If the interpre-
tation and construction of the contract be left to the agent of one of the
parties, it may well be doubted if the rights or obligations created are
defined or are capable of being ascertained independent of the parties; and
the question might be raised whether a written instrument to be so inter-
preted would be sufficient evidence of the contract to satisfy the statute
of frauds. The fact that its interpretation and construction was for
some one other than the court would render its terms indeterminate as
well as the amount to be paid. Certainly the contract is not committed to
writing, if it can be changed and modified to suit the whims and fancy
of the mind; its terms are not fixed nor is the object of the statute satisfied.
Of course, if parties desire to leave their obligation to a third person to
determine, or in words clear and unmistakable, submit the determination of
their rights under a contract wholly to the skill, integrity, and judgment
of an engineer and he in the employ of one of them, there is no law which
prevents him from doing so, though there may be statutes requiring certain
forms and certain registrations in some states. "When such transactions take
place they excite suspicion that undue advantage has been taken, and
courts are not slow to inquire into them, and to give more than or-
dinary care to the investigation. It must not be forgotten that laws are
for the protection of the weak against the strong, and that the courts are
^ Delaware, L. & W. R. Co. v. Bowus, •'' German Fire Ins. Co. v. Roost (Ohio
86 N. Y. Super. Ct. 126 [1878]. Supp.), 45 N. E. Rep. 1097
2Cree v. Bristol, 33 N. Y. Supp. 19.
g 402.] CONTRACT STIPULATIONS. ^ ' 335
the guardians of peace and justice, and if there be any doubt as to the clear
intention of the parties to submit the meaning of tlie contract to tho
engineer, their agreement will be given the most rational construction,
which will be against such extended powers.
402. Engineer Should Not be Able to Enlarge his Own Powers. — It is
usual to constitute the engineer a referee as to the meaning of the plans and
specifications which are his own invention and handiwork, a certain con-
struction of which is necessary to the proper erection and completion of
the works. His powers cannot be enlarged by implication, but they will be
•confined strictly within the terms of the contract. Therefore, when a
contract provided that the specifications and drawings should not be used
to the exclusion of the instructions and directions of a designated person,
but jointly with them, and that the work, when finished, should be subject
to the acceptance of the general manager and chief engineer, and that
the interpretation and full intent of the drawings should be given by the
-engineer ; and that his decision pertaining to any question which might
arise should be conclusive. It was held that the contract did not give tho
■engineer and general manager exclusive right to determine the construction
-and meaning of the specifications, but only the drawings.* *
The engineer as an officer under the contract is a creation of the con-
tract, his office owes its existence to the agreement between the parties.
Should he then be permitted to interpret or construe the instrument of his
creation ? That would be in effect to define his own authority, to limit or
extend his own powers, and to determine his duties in sympathy with his
own views and ideas. By his decisions he might make terms for the parties
wholly inconsistent with the obligations they had intended to assume. He
might dispense with a material part of the contract, or by a harsh construc-
tion of conflicting or ambiguous parts work great hardships upon the con-
tractor. Being an agent of the company, if the engineer felt himself
devoted wholly to the company's interests, or lacked in that very essential
quality of a good engineer, decision of character, or " backbone," it would
put the contractor entirely at the mercy of the company or employer.
THis, it is submitted, is one very good reason why these clauses are sub-
ject to the close scrutiny and strong disfavor of some courts, sometimes
resulting in their being declared void and against public policy. Not so
much because they oust the courts of their jurisdiction as that they tend to
destroy themselves. Why create a contract which is supposed, intended, and
declared to give both parties certain rights one against the other, and at the
same time and in the same instrument appoint some other agency which
may create new terms, or even destroy the rights and obligations so estab-
lished ? If the engineer be a referee, the question loses little of its force, for
» Pollock V. Pennsylvania Iron Works Co. (Com. PI.), 34 N. Y. Supp. 129.
* See Chap. IX., Sees. 225-233, supra.
336 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 40^
if he may interpret the contract of submission, it enables him to define his
own powers, which should be in the power of the parties to determine.
We find decisions in sympathy and direct support of these remarks. A
contract containing a provision to the effect that *^ if any dispute arose dur-
ing the execution of the contract, the engineer should in all cases decida
such questions, and tliat his estimates and conclusions should be final and
conclusive," it was held that such a provision might well apply to questions,
as to quality of the materials, as to whether the work was being prosecuted
with sufficient energy, and to other questions of like character, but that it
did not constitute the engineer the final umpire to decide mixed questions
of law and fact.^ Under a similar provision it was decided that the engi-
neer had no power to give a legal construction of what the contract required
of the parties, but merely to determine the differences which relate to the
workmanship, and to the fitness and quality of the materials used." So it
has been held that if an engineer is to estimate work done under a contract,
and his estimates are based upon an erroneous view of its terms, it will not
conclude the parties. It is the duty of the engineer to estimate the work
strictly according to the terms of the contract.' If the contract directs the
manner of making the measurements, his construction of the contract will
not be conclusive upon the parties, although his estimates, if fairly made la
the manner pointed out in the contract, would conclude them.*
These decisions must be supported upon the ground that these matters
were not submitted to the engineer's decision, because if plainly witliin sv
submission to arbitration there could be no question as to tlie conclusive-
and binding effect of the arbitrator's decision on points of law and fact, and
even the construction of the contract,^ although it may be doubted that his
interpretation of the submission itself would be binding and conclusive.
Where the plans and specifications for a building were accessible to tlie
builder before he made the contract, and an examination of them would
have shown that there were apparently discrepancies in them, he was held
bound by a provision of the contract that if any discrepancies shall be found
to exist between the plans, working drawings, and specifications, the
decision of the architects as to their true intent and meaning shall be final."
403. The Contract Creates the Powers of the Engineer or Architect. —
The engineer's power is subordinate to the contract, and the agreement of
* Jeminison v. Gray, 29 Iowa 537; but ^ Vanderwerker «?. V. C. Ry. Co.,27Vt..
see Raudegger v. Holmes, 31 N. Y. 679 130 [1854]; Sweet v. Morrison, 116 N. Y.
[1866]. 19 [1889]; Kirk v. The E. & W. India
2 Mdson V. Bridge, 14 Maine 468 [1837]. Dock Co., 55 L. T. R. (N. S.) 245; Hall v
3 The Alton, etc., R Co. v. Northcott, Norwnlk F. I. Co. (Conn.), 17 Atl Rep,
15 111. 49 [1853]; G. H. & S. A. Ry. Co. v. 856; Snodgrass v. Gavit, 28 Pa. St. 221
Henry, supra; G. H. & S. A. Ry. Co. v. [1857]; and see Strauss v. Wannamaker
Johnson, 74 Tex. 256 [1889]; McAvoy v. (Pa. Sup.). 34 Atl. Rep. 648.
Long, 13 111. 147; Kistler v. Ry. Co., 88 « Kelly v Pubh'c Schools of Muskegon
Ind.'460. (Mich.), 68 N. W. Rep. 282; Guthat «.
4 McAvoy D. Long, 13 111. 147. Gow, 95 Mich. h21 , followed.
§404.] CONTRACT STIPULATIONS. 337
the parties is the source of his power and authority, A contractor should
follow the engineer's instructions in those things only wherein he has
authority to direct him, and a contract prescribing what things sliould be
done, and providing farther that the contractor should in all things follow
the directions of the engineer, was held not to change this rule/ If the con-
tractor has received monthly estimates of his work upon a particular con-
struction of his contract without objection, he will be held to have acquiesced
in that construction and to be bound by. it.' *
404. Can the Engineer Interpret the Contract Wrongfully if he Interprets
it Honestly ? — Whether the preceding cases were decided upon the prin-
ciple of arbitration that the engineer's decision was confined exclusively to
matters submitted to his consideration by the terms of the agreement or on
the ground of public policy does not seem to have been decided. It is im-
possible to say what would be the decision of a court if the construction of
the entire contract, including the agreement to submit to the engineer's award
and estimate, were left expressly and wholly to his judgment. It is con-
fidently believed that if the engineer were the agent or employee of one of
the parties that such a stipulation would be declared void as against public
policy. It could not be denied that it was not within the terms of the sub-
mission. Clauses are frequently inserted in English contracts, giving the
engineer almost absolute power over the terms of the contract and specifica-
tions, to interpret, construe, and arbitrarily determine every question; and
the English courts 'have strongly intimated that an arbitrator [engineer]
might determine the extent of his own powers and duties. In reference to
the point a noted judge has said, " that the meaning of the contract is sub-
mitted to the arbitrator [engineer], and he has not exceeded and will not
exceed his jurisdiction by receiving the evidence," evidently meaning thereby
that the engineer's powers were unlimited. In the arguments of the same
case, in which the Lord Chief Justice took a part, the counsel was asked:
" Does your argument come to this, that the arbitrator [engineer] has a
right to interpret it wrongly and then to decide as if he had interpreted it
rightly?" to which the counsel shrewdly replied : "No. In the contemplation
of the court he cannot interpret it wrongly, if he interprets it honestly," and
continued by adding, " That is the view which the courts have always taken
as to the powers of an arbitrator, and no case can be found at variance with
it." The engineer's interpretation was sustained even though it did seem
contrary to the plain meaning of the language employed." A similar view
was recently expressed in a dissenting opinion by Justice Kellam of Dakota,
in a case in which the right to build within the city limits was arbitrarily
conditioned upon the. owner getting a permit from the building inspector.*
1 State of Indiana v. McGuiley, 4 Ind. 7 '* Kirk v. The E. & W. India Dock Co.,
[1858]. 55 L. T R (N. S.) 245 [1886],
2 Kid well V. B. & O. R. Co., 11 Gratt. * Sioux Falls v. Kirby (S. D.), 60 IS^. W.
676 [1854]. ' Rep. 156.
* See Sees. 578-581, infra.
338 ENGINEERING AND AKCIIITECTVliAL JURISPRUDENCE, [§ 405.
405 English, Scotch and American Views. — If the parties have agieed
that disputes as to the meaning of the contract, or the sufl&ciency of the
work done under it, or the price to be paid, shall be submitted to. the engi-
neer, the parties have been held bound by the engineer's decisions.' After
decision hud been made this might be true. If the contractor did not
intend to abide by the engineer's decision he should not have allowed the
questions to go to the engineer, and to have received his determination or
^ward.
The Scotch decisions seem to be to the same effect as the English, for
when a contract provided that " all disputes and differences which might
have arisen, or shall or may arise, between the parties under or in reference
to this contract, or in regard to the true intent, meaning, and construction
of the same or of the said specifications, conditions, and schedules, or as to
what shall be considered carrying out the work in a proper, uniform, and
regular manner, or as to any other matter connected with or arising out of
this contract, and generally all disputes and differences in any way con-
nected with the construction of this contract or arising out of the execution
or failure to execute properly the work hereby contracted for or not," should
be submitted and referred to the final sentence and decree arbitral of the
arbiter [engineer] named, it was held that as the whole matter, including the
oonstruction of the contract, had been referred to the arbiter, and that tho
court could not interfere with the arbiter's award, even on the ground of
injustice.' The following year this opinion was sustained, and it was held
that the engineer might extend the time for completion and might be
empowered to determine disputes as to the contract itself or its interpreta-
tion.'
There are some American courts which have expressed the same opinion,
l3ut it is believed not to have been fairly and squarely decided, and has
jet to be fully settled. Thus it has been held that in the absence of fraud
or mistake that the action of an arbitrator empowered by the contract to
construe and determine its conditions is final and conclusive between the
parties.* And in the United States circuit court, Arkansas, it has been
recited that " it is not the province of courts and juries to make contracts
ior parties, or to alter them after they are made, but to enforce them as the
parties made them." ^ In a recent case it was decided that a provision that
should any dispute arise respecting the true construction or meaning of the
drawings or specifications, the matter should be decided by the architect,
iind that his decision should be final and conclusive, gives the architect the
power to dispense with requirements contained in the specifications.'
lO'Donnell?). Forrest (La.), 11 So. Rep. Rep. 300 [1887] ; Porter id. Buckfield, 33
245;0'Doiinell v. Henry, 44 La. Ann. 845. Me. 559.
2 Adams ■». Ry. Co., 16 Scotch Sessions ^ Texas, etc., Ry. Co. t>. Rust, 19 Fed
Ca-es 843 [1889]. Rep. 239."
3 Adams v. Gt. North of Scotland Ry. «Duell v. McCraw (Sup.). 33 N Y.
Co., IS Scotcli Se'-sions Cases 1 [1890]. Supp. 528; see O'Donnell v. Forrest (La.),
* United States «. Ellis (Ariz.), 14 Pac.
§ 406.] CONTRACT STIPULATIONS. 339
Foremost among the decisions to the contrary, and one tnat is frequently
cited, is an Indiana case. A clause in the contract provided that " finally it
is agreed that if any dispute or misunderstanding shall arise between the
parties as. to the meaning or execution of the provisions of tliis contract, it
shall be referred to the engineer of said railroad company, and his decision
shall be final and alike binding upon both parties," was declared against
public policy and void.' The court contented itself by saying that '* a clause
of a contract that means that the engineer shall be sole umpire of all differ-
ences that may arise between the parties and thus preclude themselves from
the right to resort to the courts for the settlement of such differences is
against public policy and void," and Kedfield is quoted as saying also that
^' a stipulation that no action shall ever be brought upon a contract, or, what
is equivalent, that all disputes under it shall be referred to arbitration, is a
repugnance which, if literally carried out, must render the contract itself as
a mode of legal redress wholly idle." '
40j6. Objection that Such a Clause Ousts Courts of Their Proper Jurisdic-
tion, Treated. — The argument that the stipulation for the engineer's final
determination ousts courts of their proper jurisdiction was handled
without gloves in a New York case," where Justice Allen said: " It appears
to be well settled by authority that an agreement to refer all matters of dif-
ference or dispute that may arise to arbitration will not oust a court of law
or equity of jurisdiction. The reason of the rule is by some traced to the
jealousy of the courts and a desire to repress all attempts to encroach on the
exclusiveness of their jurisdiction,* and by others to an aversion of the courts,
from reasons of public policy, to sanction contracts by which the protection
"vchich the law affords the individual citizen is renounced." An agreement
induced by fraud or overreaching, or entered into unadvisedly through igno-
rance, folly, or undue pressure, might well be refused a specific performance,
11 So Rep. 245, in wbicb the contract con- Council v. Forsinger, 125 Ind. 52-55;
tallied a clause giving engineer power to "The doctrine of our court is well sus. .
determine meaning of contract. tained by autbority." Dugan v. T omas-
1 Kistlerv. The Ind. & St. L. R. Co., 88 79 Me. 222; Ins. Co. v. Morse, 20 Wall,
Ind. 460 [1882]. 445: Scott v. Avery, 5 H. L. Cas. 811.
2 1 Redfield on Ry's (6tb ed.), p. 447. Thompson v. Cbarnock, 8 Term R. 139;
The Indifina courts' seem to have been Reed ©. Ins. Co., 138 Mass. 572; Stepbanson
particularly alive to the usurpation of their ?). Piscalaqua Co., 54 Me. o5; Starkey d.
powers to judge of the rights of their citi- DeGraff, 22 Minn. 431. 'But while we do
zt'iis, as is shown in the following remarks not reijard the estimate as conclusive, we
of Chief Justice Elliott of the Indiana su- do regard it as prima facie correct." Lin-
preme court: "We cannot agree with ville v. State, 29 N. E. Rep. 1129; authori^
counsel that the engineer's estimate is con- ties cited in Elliott on Roads, etc., pp. 430-
clusive, for we understand it to be settled 438, notes. As the estimate of the engineer
by our decisions that parties cannot, by an is /wm^/acie correct, the burden is upon,
agreement in advance, oust the jurisdic- the contractor to show fraud or mistake,
tion of the courts and make conclusive the McCay v. Able (Ind.), 30 N. E. Rep. 528'
estimate of engineer or other person." [1892].
Kistlerc. Ind. & Co., 88 Ind. 460: Bauer i). ^ j)_ & h. Canal Co. v. Pa. Coal Co., 50
Sampson Lodge, 102 Ind. '-i62-9; Railway N Y. 250.
Co. V. Donnegan, 111 Ind. 179; Supreme ■* /8«e Indiana and Georgia Courts Decis-
Council v. Garrigus, 104 Ind. 133; Supreme ions.
340 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 407.
or disregarded when set up as a defense to an action. But when parties
stand upon an equal footing and intelligently and deliberately in making
their executory contracts, provide for an amicable adjustment of any differ-
ence that may arise, either by arbitration or otherwise, it is not easy to
assign at this day any good reason why the contract should not stand and the
parties be made to abide by it and the judgment of the tribunal of their
choice/
" The rule that a general covenant to submit any differences that may
arise in the performance of a contract, or under an executory agreement, is a
nullity, is too well established to be now questioned, and it is not necessary
to inquire into the reasons of the rule or question its existence. The better
way, doubtless, is to give effect to contracts, when lawful in themselves,
according to their terms and the intent of the parties, and any departure
from this principle is an anomaly in the law, not to be extended or applied
to nQ"^ cases unless they come within the letter and spirit of the decisions
already made. Were the question a new one, I apprehend that a party
would not now be permitted, in the absence of fraud or some peculiar cir-
cumstance entitling him to relief, to repudiate his agreement to submit to
arbitration and seek a remedy at law, when his adversary had not refused to
arbitrate, or in any other way obstructed or hindered the arbitration agreed
upon. The tendency of the more recent decisions is to narrow rather than
enlarge the operation and effect of prior decisions, limiting the power of
contracting parties .to provide a tribunal for the adjustment of possible
differences without a, resort to courts of law, and the rule is essentially
modified and qualified."
407. May Make Payment or Any Right to an Action Conditioned on the
Engineer Determining Any Differences Existing. — The parties agreed to a
rate (or price) "to be established in manner following," and the deter-
mination and adjustment was held clearly to be a condition precedent to
the right to demand and receive the price. The court said : " It would have
added nothing to the legal effect to have in terms that it should not be
otherwise established, and to have excluded in words the interposition
of the courts." Either party may well say, in an answer to an action,
"That is not the measure of liability to which I assented." Thus under-
stood and interpreted, the case is not within the rule which nullifies con-
tracts ousting the courts of their jurisdiction, but is within another rule
equally as well established by authority, and founded in good reason, that
a person may covenant that no right of action shall accrue till a third per-
son has determined any differences that may arise between the parties to
the covenant, or determine the measure of the liability of the covenantor
and the amount to which the contractor shall be entitled.'
'D. & H. Canal Co. v. Pa. Coal Co., 50 ^ ^jjig principle was recognized in Del.
N. Y. 250 [1872] ; Lawrence v. Shaefer & Hud. C. Co. v. Dubois, 15 Wend. 87;
(Sup.), 42 N. Y. Supp. 992. Butler «. Duncan, 24 Wend. 447; Smith v.
§408.] CONTRACT STIPULATIONS. 341
408. Two Classes of Cases, the Distinction between them Well Marked
-and Defined. — There are two well-defined classes of cases. In one class
the parties undertake, by an independent stipulation, covenant, or agree-
ment, to provide for an adjustment and settlement of all disputes and
'differences by arbitration, to the exclusion of the courts; and in the other
they merely, by the same agreement which creates the liability and gives
the right, qualify the right by providing that before a right of action shall
accrue certain facts shall be determined or amounts and values ascertained,
and this is made a condition precedent either in terms or by necessary
implication.^ The second class of cases may be reconciled to a great many
•decisions to the contrary, on two distinct grounds. First, that the latter
•class of cases differed from the other cases in that the decision or award of
the engineer had been made a condition precedent to the liability of the
company or to the contractor's rig'ht to recover, in which case no debt would
arise, and therefore no suit could be brought until the engineer's decisions
were rendered; or, secondly, by the explanation that the contract gave to
the engineer such extended powers, not usual in engineering contracts, and
which public policy would not admit, having given the engineer power to
■define the meaning of the contract provisions, or agreement of submission.
The stipulation should not be an attempt to preclude the contractor from
appealing to the courts, nor give to the engineer the power to ascertain
what the contract is, or even if there be a contract. If the engineer's
•decisions be confined to the materials, their quantities and classifications,
the character, quality, and progress, etc., of the work, to the interpretation
and explanation of the plans and specifications, the contract terms remain
intact and as the parties adopted them; but if the engineer's powers are
■extended to the meaning and interpretation of the contract, and his decision
be made final, without recourse or appeal, then what object or use of a
contract. The engineer might determine that black meant white, that by
the term rock was intended earth, that to build a brick house was only
•complied with by building a brick house with a marble front. Such a com-
pact would be merely an attempt to keep out of the courts, and would create
no mutual obligations relating to engineering operations.
Redfield, in his excellent book on Railways, says of this question: '* This
;subject is very elaborately discussed by the judges before the House of
Lords,'^ and it is remarkable how wide a difference of opinion was found to
Bri^iTiTs, 3 Denio 73; Smilli «. Brady, 17 N. R. 139; Gray v. Wilson, 4 Watts 39; and
Y. 173: McMahon v. N. Y. & E. R. Co., other cases; see also Richardson v. Mahou,
^0 N. Y. 463. Scott «. Avery, 5 H. L. Cas. L. R. 4 Jr. C. P. 486; Jackson «. Cleve-
:811, was discussed and considered inBrann- laud. 19 Wis. 400; Fox «. Railroad Co.. o
«tein V. Accdt. Ins. Co., 101 Encr. Com. Wall. Jr. (C. C ) 243; Reynolds «. Cald-
Law R. 783; and Tredman 'g. Holman, 1 well 51 Pa. St. 298.
Hurls & Colt. 72. The following cases ^ D. & H. Co. v. Pa. Coal Co., 50 N. Y.
were reviewed and considered: Hurst v. 250 [1872].
Litchfield. 39 N". Y. 377; Wood v. Lafay- ^Th- case of Scott v. Avery, 5 H. L.
•ette, 46 N. Y. 484; Kill v. Hollister, 1 Cas. 811.
IVils. 129; Thompson v. Charnock, 8 T.
S42 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 40a
exist upon a question wliicli might seem at first blush so simple. Of the
nine judges who gave formal opinions, three were opposed to allowing any
force whatever to such a stipulation, and of the other six, four held that only
the question of damages can properly be made to depend, as a condition
precedent, upon the award of an arbitrator, while two held that the award
may be made to include all matters of dispute growing out of the contract^
which it seems to us must be regarded as equivalent to saying that no action
at law or in equity shall be brought to determine any controversy growing-
out of the contract, v/liich all the judges agreed is a void stipulation. We
therefore feel compelled to adopt the view that upon principle, and the fair
balance of authority, such a stipulation in regard to estimating labor or dam-
ages under a contract for construction is valid, and may be treated as a con-
dition precedent,but that beyond that the present inclination of the English
courts is to hold that it is repugnant to sound policy and subversive of the
legal obligation of the contract, as being equivalent, to a stipulation that no-
action at law shall be brought upon the contract, but only upon the awards
if not paid/^
" The balance of authority in this country seems to be in favor of allow-
ing such a condition precedent in this class of contracts to extend to the
quality of the work as well as the quantity, and to the question whether the
work is progressing with sufficient rapidity, and whether the company 0!>
that account are justified in putting an end to the contract. It seems rea-
sonable to us on many grounds that contracts of this magnitude and char-
acter should receive a somewhat different interpretation in this respect from
that which is applied to the ordinary commercial transactions of the coun-t
try, as has been held in regard to pecuniary penalties. Under the English
statute, the Eailway Arbitration Act, agreements between companies to
refer all disputes between them to arbitration, are peremptorily enforced
by the courts.* We should not therefore feel justified in intimating any
desire to see the American cases on this subject qualified.'^'
It is impossible to predict what an American court would decide in a case
where an engineer had been given the determination of questions relating-
to the meaning and interpretation of the contract terms; and the doubt
that exists is enough of itself to discourage the use of such a clause in a
well-drafted contract. If the parties are so very desire us of keeping out of
the courts, let them provide for the interpretation and construction of the
contract by some disinterested third person, other than the engineer, a
tribunal of their own selection, to which the objections herein offered will
not apply. The defining of one's powers at least should be left a matter for
outside adjudication, whether for an umpire or for the courts. It has been
held that an agreement between an ice company and one of its delivery-
men that the bookkeeper of the company shall settle all disputes as to the
1 Llannelly Railway & Dock Co. •». Lou- ^ j Redfie'd on Law of Railways (6th ed.T
ilou & N. W. Ky Co., 20 W. R. 898. 448.
§ 409.] CONTRACT STIPULATIONS. 343
amounts of money due, shortages, etc., on the part of the deliveryman, does
not authorize the bookkeeper to construe the contract of employment, and
to charge to the deliveryman uncollected accounts for ice delivered to him/
To the engineer should be left matters peculiarly within his province,
which he should be eminently qualified to determine, and which a court or
jury is quite unfit to undertake. He should be authorized to decide all
questions as to the execution of the work, its sufficiency, stability, and
utility, all questions of the character, kinds, and quality of materials, their
appropriateness and conformity to the specifications, the application, inter-
pretation, and explanation of the specifications and drawings, especially on
all cases of doubt or dispute, all questions of amount and quantity of either
work or materials, question of extra work, and alteration, and questions of
damages due to delays, breach, etc., but the determination of the intention
of the parties, as expressed in the contract, the interpretation of its terms,
and especially those parts defining the engineer's powers and duties, should
be left to the court, or to some other tribunal.
409. Payment by Owner Made Contingent on Engineer's Certificate.
"Audit is further expressly agreed and understood, that such de
cisions, determinations, and estimates by the engineer, with regard to any
and every question, doubt, dispute, and difference as to the quantities,
qualities, description, and classification of materials and work, or in re-
spect to any additions, deductions, omissions, alterations, or deviations^
or in regard to the meaning or intention of [this contract, or] the specifi-
cations and plans, or pertaining to the instructions, drawings, or direc-
tions given or furnished, or as to the value, or sums due and to be paid
under this contract shall be and are a condition precedent to any right,
whatever of the contractor to receive, demand, or claim any money or
other compensation under this agreement, and a condition precedent
to any liability on the part of the owner, or company, .or city to the
contractor under or on account of this contract, or for any labor or
materials furnished in connection therewith."
The use and binding effect of this clause has been discussed in a previous
chapter in a general way, but some of the statements, it is believed, may be
repeated again with good effect.
On whatever principle its binding effect maybe placed, whether of logic,
or of law, or of necessity, or of public policy, its validity cannot be ques-
tioned. However much doubt there may be that a contractor can agree ta
abide the decision of an engineer, and that his decision shall be final and
conclusive as to all matters comprised in the contract, it is fully settled that
he can make the payment for his work dependent upon the occurrence of
some event; and notwithstanding the principle tha^ parties cai not by con-
tract oust the courts of their jurisdiction, a person may covenant that no
right to payment shall accrue to the contractor and no liability attach ta
the owner or company until a third person [engineer or architect] has de-
» Knickerbocker Ice Co. v. Smith (Pa.), 23 Atl. Rep. 563 [1892].
344 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 410.
cided the amount due and any differences that may arise between himself
and the other party to the covenant.' An employee may make the perform-
unce of bis work and services a condition precedent to his right to receive
any pay for either of them.'^
Mr. Leake in his valuable Digest of the Law of Contracts says:'* "A
reference to arbitration of differences arising upon a contract and the award
of the arbitrator may be agreed upon in the contract as a condition prece-
dent to the existence of any claim or liability ; so that no action can be
brought respecting the same matter until arbitrators have made an award,
and only according to the result of the award. There is no principle or rule
of law which prevents parties from agreeing that there should be no breach
of the contract between them until after there had been a reference to arbi-
tration, although there may be a rule preventing them settling by arbitra-
tion alone any breach of contract. Parties may agree that no rights or
liability shall arise between them until the engineer has determined whether
the contract has been fulfilled, and what damages have been sustained by
its breach ; and, if they do so agree, no right of action will exist until tlie
engineer has so decided.^'*
410. Indebtedness should Be Created by Promise Only and Not by Per-
formance of Work. — Ordinarily, under simple contracts for work, the com-
pany's or owner's indebtedness for the price agreed upon is not created by
the promise to pay it, but by the performance of the work. Such indebt-
edness will arise, therefore, and become payable the moment the work is
completed unless it be expressly provided that the payment of it be post-
poned. It does not necessarily follow because the proprietor promises to
pay the debt upon a condition, as the production of the engineer's or archi-
tect's certificate, that the debt itself is subject to the same condition.
That would only make the payment for the work done dependent upon an
event which has no necessary connection with the merit of the work, but
upon an event which is absolutely within the power of a person [the architect
or engineer] employed and paid by the party who makes the condition.*
This may seem a hardship imposed upon the contractor, but experience
has demonstrated its necessity, at any rate to companies and proprietors
having works to be constructed and to the architectural and engineering
professions having such work in charge. The stipulation has been considered
so necessary to the successful prosecution and completion of public works
that it has been made the subject of special legislation, and is required by
some acts before payments can be demanded for public works.
The Public Works Acts of Great Britain (31 Vict., chap. 13, sec. 18)
» Scott V. Avery, 5 H. L Cases 811 » pj^ggg 953-5 [i 878].
[1855]; many cases, 29 Am. & Eug. Ency. *Per Cranworth in Scott v. Avery, 5 H.
Law 929. L. C. 811; and see per Mdlish, L. J., in
2 Keller v. Overreich, 30 N. W. Rep. 524. Sharpe v. Sau Paulo Ry., L. R. 8 Ch. 612.
*8ee Sees. 342-343, supra, and 769-781, infra.
§ 411.] CONTRACT STIPULATIONS. 345
require that "no money shall be paid to any contractor until the chief
engineer shall have certified that the work for or on account of which tho
same shall be claimed has been duly executed, nor until such certificate
shall have been approved by the commissioners of public works.'
411. Courts Unwilling to Construe the Stipulation a Condition Pre-
cedent.— The courts have been slow to admit the need of such a stipulation,
and have not construed it as a condition precedent when they could fairly
avoid doing so." Accordingly, where a clause of a contract provided that
any dispute as to the true meaning of the drawings and specifications should
be decided by the engineer, but neglected to make the engineer's final esti-
mate and certificate a condition precedent to payment, it was held that
the clause furnished no defense unless there had been a dispute. That the
decision of the architect was not to be invoked unless a dispute should arise
" respecting the true construction or meaning of the drawings and specifica-
tions," and the contractor was not obliged to submit to such decision unless
there was such a dispute." * Unless compelled by the express language of
the contract, courts are not inclined to construe such stipulations in a con-
tract to do work within a certain time in consideration of the payment of
money by the other party as a condition precedent to the right to recover.*
To make the decision of the engineer final and conclusive and keep the
contractor out of the courts the contract must provide that no action shall
be brought until after the award,' or, better, that the engineer's award shall
be a condition precedent to payment or recovery." If the contract does not
make the procurement of the engineer's certificate or the engineer's esti-
mate and decision a condition precedent to payment or to any right of
action, then the stipulation may be held not blading and against the policy
of the law as having a tendency to exclude the jurisdiction of the courts,
which are considered to have ample means to entertain and decide legal
controversies.'
When, therefore, in a contract, payment was made conditional upon the
architect's certificate, but the promise to pay was on completion of the work,
without any requirements as to the production of the certificate, the con-
tractor was allowed to recover for the work he had done without the archi-
tect's certificate.® And an agreement that a fair compensation should be
J See Berlinquet v. The Queen, 13 Canada 481 [1834] ; The M. C. & L. R. Co. v. Wil-
Siip. Ct. 26 [1877]; see also Laws of New cox, 48 Pa. St. 161 [1864], and cases cited;
New York State, chap. 278. § 11. and Peo- and se^Bigler v. Mavor, 9 Hun 253 ; Glau-
ple r. Benton, 7 Barb. 208 [ 1849]. cus v. Bake, 50 N? Y. 145.
2 Langdell's Summary of Contracts. 1005; ^ Hamilton ■». Home Ins. Co. 137 U. S.
Front St. R. Co. «. Butler, 50 Cal. 574. 370 [1890] ; Schulere v. Eckert (Mich.) 51
3.Jr^hnson V. Varian, 108 N. Y. 645 N W. Rep. 198 [1892]; McCay ^. Able
[188S] ; accord Sinclair «. Tallmadge, 35 (Ind.), 30 N. E. Rep. 528.
Barb. 602 ; Smith ». Aiken, 102 N. Y. 87; « Hamilton v. Liverpool. L. & G. Ins.
Greene v. State. 8 Ohio 310. Co.. 136 U. S. 242 [1889].
4 Front St., M. & O. R. Co. 'o. Butler. 50 ' Hurst 'd. Litchfield, 39 N. Y. 377 [1868].
Cal. 574 [1875] ; Britton v. Turner, 6 N. H. » Flaherty v. Miner, 123 N. Y. 382 [1890J.
* /See Sec. 369, SMj9r«.
346 BNOINEERJNO AND ARCHITECTURAL JURISPRUDENCE. [§ 412.
paid for any damages suffered, and that such damages should, unless the
parties could agree, be appraised and fixed by arbitrators, does not make
the award of the arbitrators a condition precedent to the right to recover,
but is held merely collateral to the stipulated right of compensation.'
Stipulations in the following terms have been held not to create a con-
dition precedent to the right of the contractor to bring an action in the
courts "to decide all disputes as to manner of connecting the sewers or
otherwise;"'' "That the engineer shall certify that the contract is per-
formed to his satisfaction," he having certified that it was not so performed.'
Work to be " according to certain specifications and to the satisfaction of
court" was held to require work to be done according to specifications,
which would be to the satisfaction of court, and that the contractor need
not allege that he had completed work to satisfaction of the courts.*
A provision "that in case any difference should arise as to the quality of
work or materials or any other question, the same shall be settled by arbitra-
tion, each party selecting a good man, and in the event of their dis-
agreeing these two to select a third party, and their decision to be final/'
was held not a condition precedent to the bringing of an action by the
contractor.*
The following case shows the attitude of the courts more forcibly than
any other given: The contract provided "that part of the contract price
should be paid as the work progressed, and the balance when the work was
completed and accepted, and that payments should be made in accordance
with the architect's certificate." It was held that the architect's certificate
was required only as to the payments to be made as the work progressed^
and not to the final payment after completion of the work," as if the final
payment was not a " payment"
The language employed to make a condition precedent must be con-
clusive.'
412. Make the Engineer's Certificate a Condition Precedent to the Prom-
ise to Pay by Owner. — The stipulation should be clearly and plainly
expressed that there can be no mistaking the parties' true intention, and it
should be remembered that there is a difference between a promise to pay a
debt upon a certain condition and a provision that the debt shall be payable
only upon a certain condition, or when a certain event is made a condition
precedent to its payment. The latter clause necessarilj^ renders the debt
itself conditional, and is the proper one to use.*
' Seward v. City of Rochester (K Y.), 7 S. E. Rep. 445 [1888].
16 N. E. Rep. 348 [1888]; and see German ^ Cole Manuf'g Co. v. Collier (Tenn.), 19
Ins. Co. V. Morris (Ky.), 37 S. W. Rep S. W. Rep. 672.
267. 6 Oberlies v. Bullinger (Sup.\ 27 K Y.
'Delameter v. Folz, 3 N. Y. Supp. 711 Supp. 19.
[1889|. 'Lawson v. Wallesly Local Bd , 11 Q.
^Mackinson «. Conlon (N. J.), 27 Atl. B. Div. 229. and 52 L. J. Q. B. 809, note.
Rep. 930; s. c, 55 N. J. Law, 564. ^ L.^ugdell's Summary of Contracts,
4 Kinsley t>. Monongahela Co. (W.Va.), 1005-6.
§ 413.] CONTRACT STIPULATIONS. 347
Such a clause has been held to be a complete bar to the contractor's
recovery until the condition is performed or the event has transjiired/ not-
withstanding the building had been completed, and further that it was
proved that the architect had in a private letter to the owner expressed his
approval of the contractor's charges; it was held that the certificate must be
produced as required by the terms of the contract." It was held not to be
<3nough that everything had been done necessary to entitle the contractor
to have the engineer's certificate, and that the entire work had been duly
and efficiently performed and completed according to the plans, specifica-
tions, and contract. If the contract required that the work should be to
the satisfaction of the engineer, or that his certificate should be produced
before payment, nothing else' would suffice.' Many contracts are so made.
Every man is the master of the contract he may choose to make, and it is of
the highest importance that every contract should be construed according
to the intention of the contracting parties. The peculiarities of engineer-
ing and architectural construction render it important that the owner should
not be called upon to pay for work until some competent person shall have
certified that the work has been properly done according to the contract and
specifications.
Chief Justice Rothrock of the supreme court of Iowa has recently said:
"It may be correct that the provision of the contract which makes the
chief engineer an arbitrator or umpire between the parties, and by which all
rights of action [or appeal to the courts] under the contract are waived, is
void; but contracts by which parties bind themselves to make payment or
settlement upon the certificate or estimate of some third person, such as an
engineer, architect, or the like, have uniformly been upheld by the courts.*
The work being done under contract, there is no evidence of a parol
agreement to vary the written instrument and enable the contractor to sue
in assumpsit. The parties cannot seek redress from any other tribunal than
that provided in the contract, viz., the engineer.'
413. The Condition Precedent may be Waived."* — The provision in a
» Condon v. South Side R. Co., 14 Gratt. 7 Casey 306-309; Fox v. Hempfield R. 14
302. Leg. Int. 148; Faunce v. Burke, 4 Harris
2 Morgan t). Birnie, 9 Ring. 672. 469-480; Snodgrass v. Gavitt, 4 Casey 221-
3Coey «. Lehman, 79 III. 173 [1875]; . 4; Lubrick v. Lyter, 3 W. & S. 365;
Packard v. Van Schaick, 58 111. 80; Ball McGehen «. Duffield. 5 Barr 597; N. Leb-
«j. Doud (Oreg.), 37 Pac. Rep. 70;Birney «. anon R. Co. «. McGrann, 7 Casey 530;
Giles. 120 111. 154. McCaban v. Reamey, 9 Casey 535; Irwin
'*McNamiira «. Harrison, 81, Iowa 486 v. Shultz, 46 Pa. St. 74 [1863]; Hardie v.
[1890] ; citing 1 Anier. & Eng. Eney. Law Belger, 11 Wright 60; Memphis R. Co. v.-
668; Loup V. R. R. Co., 11 Amer. & Eug. Wilcox, 12 Wright 161; Mason v. Bridge. 2
Ry. Cas. 589; Holmes «. Richie. 56 Cal. Shipley 468; Mercers. Harris, 4 Neb 82;
307; McMahon v. R. Co., 20 N. Y. 463; R. School Dist. v. Randall, 5 Neb 408; Du-
Co. V. McGrann, 33 Pa. St. 535; 29 Amer. bois v. The D. & H. C. Co., 4 Weud. 285;
& Eiig. Eucy. Law 929. s. c. 12 Wend. 384; s. c. 15 Wend. 89.
"* O'Reilly v. Kerns, 52 Pa. St. 214 6]vifi,.tin ^ Lgggett. 4 E P. Smith (N.
[1866] ; citing Monongahela B'dge Co. v. Y.) 255; Batterby «. Vyse, 2 H. & C. 42;
Fenlon, 4 W. & S. 205; Laumau «. Yonug, Byrne v. Sisters of Ch., 45 N. J. Law 213.
* See Sec, 417, infra.
348 ENOINEERmG AND ARCHITEGTUBAL JURISPRUDENCE. [§ 413.
contract with a railroad company for the construction of its road to the
satisfaction and acceptance of their engineer, has reference, no doubt, as to
its final acceptance, to the chief engineer,' but when an architect with the
acquiescence of the owner has authorized his assistant to prepare specifica-
tions, superintend the work, and issue certificates, and the owner conducted
all the business with such assistant and received the final certificate issued
by him to the contractor without objection, but only solicited a delay in
making the final payment, the owner will be held to have waived the archi-
tect's certificate as provided by the contract."*
The payment of progress certificates stating that the work was satis-
factory to the engineer is not a waiver of defects discovered before the final
certificate is awarded.'f The fact that principal contractors have adopted
the final estimates of a subordinate engineer, and have paid their subcon-
tractors on such final estimate, does not constitute a waiver of a provision
that the amount due to the subcontractors shall be paid only on the cer-
tificate of the chief engineer.*
A statement by the owner that he is pleased with the work, that he is
dissatified with his architect and an arrangement to give the contractor a
release of the payment of a loan in payment of the balance due him, do not
create a waiver of the condition precedent.^ On appeal, however, it was held
that the owner had waived his right to a final certificate, he having threat-
ened ''to throw the whole matter into the hands of his architect" because
the contractor would not release a claim which he held against the owner."
Payments from time to time without requiring certificates will not amount
to a waiver of the right to require a certificate of approval.''
It is nevertheless advisable to always insist that the conditions of a con-
tract be carried out literally, if for no other purpose than for the sake of form
and to avoid complications of waiver and other conditions not anticipated
nor provided for; and if circumstances require a departure from the previ-
sions made, to have it distinctly understood that it is a departure for that
occasion only, and shall not establish a precedent to be followed thereafter,
nor act as waiver of any rights or privileges of either party under the con-
tract. Whether or not a stipulation has been waived is usually a question
of fact for the jury,® but a waiver of the conditions of a contract cannot be
predicted on conduct of which the other party had no knowledge."
1 Barker ?;.Troy & R. R. Co., 27 Vt. 766. Ct. 256 [1877].
2 McEntyre v. Tucker (Com. PI.), 31 N. « Haden v. Coleman, 73 N.Y. 567, over-
Y. Supp. 672; Hartley v. Miirtha (Sup.). 39 rnling Bell v. Suu Print. Co., 42 N. Y.
N. Y. Supp. 213; and see Blethen v. Blake, Super. Ct. 567.
44 Cal. 117; Barton v. Herrman, 11 Abb. ■» Brown v. Winehill, 3 Wasli. 524; Bar-
Pr. N. S. (N. Y.) 382; Clark v. Pope, 70 ton v. Herrinnn. supra; bui see, Bannis er
111. 128; Bannister v. Patty. 35 Wis. 215. -» Patty, 35 Wis. 215; Flaheriy v. Miner,
3 Hartupee «. Pittsburgh, 97 Pa. St. 107 123 N. Y. 382, contra.
[1881] ; and see Qoo^^x v. Uttoxeter Bur. « Keller «. Oberrich, 30 N. W. Rep. 524
Bd. 11 L. T. N. S. 565. [1886].
^ McNamara v. Harrison, 81 Iowa 486. ' Benson v. Shot well (Cal.), 37 Pac. Rep.
' Haden v. Coleman, 42 N. Y. Superior 147.
* See Sees. 463-5 and 482, infra. f ^^^ Sees. 403-470 and 482 infra.
§ 4 1 4. J CONTRA GT 8TIP ULA TI0N8. 349
To permit a recovery without the production of such a certificate would
tiike from the owner the protection of his engineer, and substitute for his
opinion that of a jury, which is not the contract into which the parties
have entered.* Or in the terms of another case the courts are powerless to
disregard the terms of a contract plainly expressed, but it is their duty to
enforce them according to the intent of the parties as shown by the language
of the contracts " It is a fundamental principle of conditions," says Professor
Landell, in his Summary of Contracts, "that the court has no power to
modify them or to dispense with their complete performance and fulfillment;
for the exercise of such a power would involve the enforcement against a
party of a covenant or promise which he had never made himself.'
The fact that the contractor has not or did not obtain the engineer's
certificate as required by the contract must be pleaded, in an action for
work done, or the defense that the contract provided that payment should
be made on the certificate of an engineer, and that his decision and estimate
should be final and conclusive, is not available.*
414. If Payment of Contract Price is Conditional on Procuring Engi-
neer's Certificate, It will Hold. — The contractor cannot compel the pay-
ment of the amount agreed for the work unless he procures the kind of
evidence required by the contract, or shows that time or accident has pre-
vented him from securing it/ The rule applies as well to proceedings in
equity as to those in law.* When a contractor has agreed to furnish mate-
rials and execute work in a specified manner to the entire satisfaction of an
engineer or architect and to be paid upon his certificate he is bound by his
contract. If he will recover for what he has done, it is not enough for the
contractor to say that he has performed the agreements in other respects
without also alleging that he has done it to the satisfaction bf tlie arbiters
agreed upon by the parties.'' The fact that the suit is on ^quantum meruit
does not dispense with the production of the engineer's certificate.'' * In the
» Clark «. Watson, 18 C. B. (N. S.) 278; Giles, 120 111. 154; Downey v. O'Donnell,
Hudson V. McCartney. 33 Wis. 331 [1873]. 86 111. 49.
2 Coey «. Lehman, 79 111. 173 [1875] ; to ' Matthews v. Rice, 4 Bradw. 90 [1879] ;
the same effect, Faunce v. Burke, 16 Pa. St. Butler v. Tucker, 24 Wend. 449; Wors'ey
469 V. Wood, 6 T. R. 710; D. & H. C. Co. v.
'^ See Haden v. Coleman, 42N.Y. Super. Dubois, 15 Wend. 89; Morgan®. Birnie, 9
Ct. 256 [1877]. .Bing. 672; The United States v. Rohison,
^ Everard iJ.Clty of New York (Sup.), 35 9 Peters 319; Langdell's Summary of Con-
N. Y. Supp, 315; Hartley?). Murtha (Sup.), tracts, 1006; Byron v. Low (N. Y.), 16 N.
39 N. Y. Supp. 212; Chamberlain v. Hib- E. Rep. 45 [1888] ; see Atkins v. Bnriista-
bard (Oreg.), 38 Pac Rep. 437. ble, 97 Mass. 428 [1867]; Kin land v. Moore,
5 United States v. Robinson. 9 Peters 319; 1 Cent. Rep. 466; Hanley d. Walknr (Midi )
Loup «. Cala. S. R. Co.. 63 Cal. 97; Fiune- 45 N W. Rep. 57 [1890] ; many cases in 29
gan V. L'Engle. 8 Fla. 413; B. & O. Ry. Amer. & Eng. Ency. Law 929; but see
Co. V. Polly Woods Co., 14 Gratt. 448 Williams ?;. Chicago, S. F. & C. Ry. Co.
[1858]; Barney v. Giles (111.), 11 N. E. (Mo.), 20 S. W. Rep. 631, which held that
Rep. 206 [1887]; Jones v. Reg., 7 Can. Sup. it was not necessary to call the engineer to
Ct. 570; Reg. v. Starrs, 17 Can. Sup. Ct. establisli their case before a jury.
118; Kirtland v. Moore, 1 Cent. Rep 466. ^Qjnies ?,. Manhattan B. J. "Co., 26 N.
« Scott V. Liverpool, 3 De. G. & J. 334; Y. Supp. 381.
MichaelistJ. Wolf, 136 111. 68; Barney v.
* See Sec. 412, supra.
350 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 414.
frequent case of a contract for buildings or engineering works, in which it
is provided that the contractor shall be paid only what the architect or engi-
neer may certify he is entitled to, it is held that there is no claim or right
of action at law or in equity until the certificate is given/ Monthly esti-
mates or progress certificates are necessary to recover partial payments when
the contract provides for them.' The motives of a party m requiring a strict
compliance with the condition precedent to his liability are immaterial,' so
long as they are not shown to be unlawful.
The English courts have been very strict in the construction and main-
tenance of contract rights, and have refused a recovery on a contract under
any circumstances without the production of the engineer's certificate as
required by the agreement. This rule was laid down in a case where the
owner had appointed his father the engineer, and the contractor offered to
prove fraud and collusion between the father and son. The evidence was
held inadmissible, and although the fraud might be a subject for a cross-
action, the court would not permit the contractor to recover until he pro-
duced the father's certificate.* This is an extreme case and will not be
followed to-day. It has been practically overruled by more recent English
cases,* and by the practice of courts to-day in many state jurisdictions it
would be assumed a case of fraud (though there is doubt if a court of law
would take jurisdiction in some states, some cases having held it was neces-
sary to go into a court of equity);' yet the case shows the disposition of
the courts to maintain contractual rights and obligations.
If the contract requires the engineer's certificate or estimate of the
work before payment, the contractor must make a demand for such certifi-
cate or estimate.' It is no excuse for failure to procure such certificate
that the contractor feared to apply for it because he believed the architect
to be wrongfully prejudiced against him.®
If the contractor has agreed to submit differences and disputes to an
engineer, it has been held that he could not recover damages for breach of
contract unless he has offered to submit such differences. ' So if materials are
to be approved before being used, the contractor should apply to have them
^ Leake's Digest of Law of Contracts, 147.
955 : Wolf V. Michaelis, 27 111. App. 336 * Milner v. Field, 5 Exch. R. 829 [1850].
[1888]; Godefroi and Short on Railways 94; ^ Butterby v. Vyse, 2 H. & C. 42.
Scott V. Liverpool, 3 D. & J. 334; s. c, 1 * Godefroi and Short on Railways 94;
Giff. 216; Sharpe v. San Paulo Ry. Co., L. Wood v. Chicago, S. F. & C. R. Co., 39
R 8 Ch. App 597; Wadsworthi). Smith. L. Fed. Rep. 52.
R. 0 Q B.332; Milner «. Field, 5 Exch. 829; ' Byron v. Low (N. Y.), 16 K E. Rep.
Glenn V. Leilh, 1 Com. Law Rep. 569- 45 [1888]; Newton -y. Highland Impr. Co.
Dobson V Hudson. 1 C. B. (N. S) 659; (Minn.), 64 N.W. Rep. 1146.
Parkf's «. Gt. Western Ry. Co., 3Ry Cas. « Gilmore v. Courtney (111. Sup.), 41 N.
17; Phelan «. Albany R. Co. 1 Lans. (N. E. Rep. 1023. And see Rusling ■». Union
Y.) 258. Pipe Co. (Sup.), 39 K Y. Supp. 216
2 Martin v. Leggett. 4 E. D. Smith (N. 'United States v. Ellis (Ariz.), 14 Pac.
Y.) 255; Braun v. Winans, 37 111. App. Rep 300 [1887]; Snodgrass v. Gavit, 28
248. Pa. 221 [1857]; Ball v. Daud (Oreg.), 37
» Benson v. Shotwell (Cal.), 37 Pac. Rep. Pac. Rep. 70.
§ 415.] CONTRACT STIPULATIONS. 351
approved or he uses them at his peril/ Therefore when a contract provided
that the architect should decide whether alterations asked for by the owner
were within its terms, and the contractor, knowing that the owner under-
stood the contract terms to so provide, made alterations without securing a
decision from the architect, it was held that he could not recover any extra
compensation for such alterations.' *
415. Language that Makes a Condition Precedent. — The words "condi-
tion precedent" themselves are not necessary to create a condition precedent
and to postpone the company's indebtedness; yet the intention of the
parties to make the engineer's estimate and decision an absolute pre-
requisite to the contractor's right to recovery must be couched in such lan-
guage as to leave no doubt, to make sure that the court shall so construe it.
If the condition be annexed to the promise to pay a debt, it will commonly,
upon the true construction of the contract in which it is contained,
extend to the debt itself.^ This is usually the construction adopted
by the courts. Therefore when the agreement was "to pay only what
the architect or engineer should certify the contractor was entitled to,"* to
pay " tulien and not before the architect shall have certified "; ' or the cove-
nant was " to pay according to the conditions of the contract," which pro-
vided that the amount, quality, classification, and value of the work should
be determined by the engineer, whose determination should be binding,
final, and conclusive on the parties;^ or the owner agreed *'to pay upon the
certificate and estimate of the architect," and the builder agreed that he
would demand no pay except so much as the architect should certify
was due to him;' or under a stipulation in the contract that "no action at
law or suit in equity should be brought or maintained until the matters in
dispute had been decided by arbitrators, and then only for such sum as the
arbitrators should award";' or a covenant ^'to pay when the contractor
should receive from the architect his certificate "; ^ or even when the
promise is "to pay upon the architect's acceptance and on the presentation
or production of his certificate";' or "to pay for extra work at or on the
estimate of an architect" named; '" or "that the value of all extras shall be
ascertained by arbitration";'' or that the price shall be payable "after a
certificate of approval by the engineer shall have been issued";" or ''to
pay on acceptance and approval by the engineer and owner"" — in each
' HiiTgins V. Lee, 16 111. 495 [1855]. ® Smith v. Briargs, 3 Denio 73 [18461
« Evans v. McConnell (Iowa), 68 N. W. 'Barney v. Giles (111.). 11 N E Rep
Ren. 790; Hiiglies v. Brabinder (Wash.), 206 [1887]; Clark v. Watson, 18 C B
■38 Pac. Rep. 209 (N. S.) 278 [1865]
' Langdell's Summary of Contracts 1005. ^° Bnasen v. Baelir, 7 Wi-^. 517; Edwards
* Leake's Diirest of Contracts 953-955. v. Louisa Co. (la.), 56 N. W. Rep 656.
» Milner r Field. 5 Exch. H29; Glen v. " Ball v. Doud (Greg.), 37 Pac. Rep. 70
Lcith, 1 Com. Law Rep. 569; Scott v. ^^ N. Y. & N. H. A. Sprinkler Co. ?;.
Xiverpool (EuL^). 1 Giff 216. Andrews, 23 N. Y. Supp. 998.
« Tavlor v, Renn, 79 111. 181. ^^ Hanley v. Walker (Mich.) 45 N. W.
' Scott V. Avery, 5 H. L. Cas. 811 Rep. 57 [1890].
tl855].
* See Sjcs. 437, 595, infra.
352 JENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 415«
Ccise the promise to pay was held subject to a condition precedent, and to-
require the production of the architect's or engineer's certificate, decision^
estimate, or award before the contractor could bring any suit to recover
under the contract/
When materials are purchased subject to inspection by the company's-
engineer, they need not be accepted nor paid for if rejected by tiie
engineer, and it is not necessary that the contract should in express terms
malie the engineer's decision final and conclusive."
In all these cases it should be noticed that the condition is attached to-
the promise, as it should be ; and if the condition is put in a separate clause,
the promise to pay must refer back to or incorporate the condition in order
to have it. attach and become a condition precedent to payment.^ If this is.
done, it is not necessary (though it is advisable) that there shall be a pro-
vision for arbitration or an express waiver of the right to sue at law, for th&
estimate of the engineer is a condition that is an essential prerequisite to^
an action for the work done.*
Full effect has usually been given to the stipulation if it provides that the^
engineer shall determine the sum due, or amount to be paid, or value, and
his determination is made final and conclusive, and without appeal. Such are
provisions for the engineer to determine the quantities, quality, classification
and value of work done and to be paid for. They have been held binding
upon the parties,* and to be conditions precedent to recovery, for the amount
of a debt must be known before a recovery therefor can be had.'
In Pennsylvania the courts have been more liberal in enforcing similar
* Other cases in point: Cooke v. Cooke, 613 [1890]; hut see Cole Mfg. Co. v. Collier,
L. R. 4 Eq. 77; Elliott v. Royal Exch. 91 Tenn. 525. A conditiou inserted in a
Ass. Co., L. R. 2 Ex. 237; Dawson v. contract for work that in case of difference
Fitzgerald, L. R. 1 Ex. Div. 257 ; Ed- or dispute about the work performed, a
wards v. A. Mat. Ins. Soc, L. R. 1 Q. B. reference to an engineer or expert shall be
D. 563; Scott v. Corpn. of L., 1 Giff. 216; made before payment or a suit can be
Grafton v E. C. Ry. Co., 8 Exch. 699; brought, will be upheld as a "condition
Kane «. Wilson Stone Co., 39 Ohio St. 1; precedent" to recovery by suit, — Mouon-
Sweeny v. United States, 109 U. S. 618; gehela Nav. Co. v. Fenlon, 4 Watts &.
Packard v. Van Schoick, 58 111. 79; Par- S. (Pa.) 205; Howard v. Alleghany Valley
sons V. Sexton, 4 C. B. 899; Moffatt v, R. Co., 69 Pa. St. 489; Hartupee v. Pitts-
Dickson, 13 C. B. 543. biirgh. 97 Pa. St. 107; Railroad Co. v.
^ Chapman v. Kansas City, etc., R. Co. McGrann, 33 Pa. St. 530; Fan nee v.
(Mo.), 21 8. W. Rep. 858. See also Park Burke, 16 Pa. St. 469; Condon v. Southside:
Fire Clay Co. v. Ott (Pa.), 30 Atl. Rep. R. Co., 14 Gratt. (Va.) 302; Butlers.
1040; Higgins v. Lee, 16 111. 495. Tucker, 24 Wend. (N. Y.) 447; Smith v.
3 Flaherty v. Miner, 123 New York 382 Brady, 17 N. Y. 178; Smith v. Briggs. 3
[1890]. Den. (N. Y.) 73: Herrick v. Belknap. 27
4 Reynolds v. Caldwell, 51 Pa. St. 298 Vt. 673; Low v. Fisher, 27 Fed Rep 542;
[1865]. Haden v. Coleman, 42 N. Y. Super. Ct.
5 Herrick v. Belknap, etc., 27 Vt. 673 256 [1877]; Wolf y\ Michaelis 27 111. App.
1854]; Brown v. Decker (Pa.). 21 Atl. Rep. 336 [1888]; Adams v. Mayor, 4 Duer (N.
03 [1891]. Y.) 295 [1855]; United States «. Robison,
•Williams^?. Chicago, etc., R. Co. (Mo.). 9 Pet. 319; 2 Story Eq. Jur., § 1457a:
^0 S. W. Rep. 631; Lewis v. Chicago, etc., Leake's Digest of Contracts 953-5, anct
K. Co.. 49 Fed. Rep. 708, 714; Fulton 'd. cases cited.
Peters and Fulton v. Metzgar, 137 Pa. St.
I
§ 416.] . CONTRACT STIPULATIONS. 363
couditions in contracts than in other states, and they have generally held
the parties strictly to them/
It is sometimes held that the satisfaction of the superintendent and the
execution of his certificate are a condition precedent to contractor's right of
action; and he cannot recover until the occurrence of such condition prece-
dent, even though the superintendent withheld his satisfaction and certifi-
cate obstinately, or from prejudice, or in bad faith."
416. A Condition Precedent Must be Expressed; It will Not be Implied.
— To have the condition precedent attach to any obligation it must be
clearly expressed; it cannot be connected with agreements or promises by
implication. Therefore where by the contract the balance of the contract
price is made payable on the completion of the works, and when the archi-
tect shall have given his final certificate of approval, and it is further
agreed that the decision of the architect shall be final and without appeal
with respect to the quality and state of the works executed, and to the time
within which they shall have been executed, it was held that the decision
and certificate of the architect was not a condition precedent" to the com-
pany right to retain a certain amount per day for delay in completion, -as
liquidating damages pursuant to the contract, even though the delay was
caused by additions and alterations ordered by the architect, according to
contract.^
A provision in reference to manner of performance, by which the con-
tractor covenanted "to furnish and perform in a complete manner, and
in accordance with tho specifications, * * * g^j^^i ^o the entire satisfac-
tion of H. & S., superintendents, * * * the entire," etc. The specifi-
cations provided that the contractor should be held strictly to execute the
work, use the materials described, submit, as to the character of material
and work, to the judgment of the superintendents, and replace any material
not, in their judgment, in accordance with the specifications, was held not
to require the contractor to prove acceptance by the superintendents of the
work done and materials furnished as a condition precedent to a recovery
on the contract.*
The production of the engineer's certificate has been held not a condi-
1 1 Amer. &Eng. Ency. Law 671; O'Reilly R 710; Glen v. Leith, 22 Eng. L. & E. 489;
r. Kerns, 52 Pa. St. 214; Reynolds v. Cald- Butler v. Tucker, 24 Wend. 447; Canal v.
well, 51 Pa. St. 298; Snodgrass v. Gavit, Dubois, 15 Wend. 80, 90, 92; Smith v..
28 Ph. St. 231; Faunce v. Burke, 16 Pa. St. Brady, 17 K Y. 173. 175-6; McCarren v.
469; Monongahela Nav. Co. ■». Fenlon, 4 McNulty, 7 Gray 139; United States n.
Watts & S. (Pa.) 205; Fox v. The Rail- Robenson. 9 Pet. 819; McAvoy v. Long. 13
road. 3 Wall. Jr. (U. S.) 243. 111. 147, 1 Hiiliard on Con. 127. 128; and
2 Hudson and another v. McCartney, 33 see Thomas v. Fleury, 26 N. Y. 26; Kerna
Wis. 331 [1873]; Milner v. Field, 5Exch. v. O'Reilly, Leg. Int. [Aug. 31, 1866].
829; Clarke v. Watson, 18 C. B. (K S.) 278; ^ jones ®. St. John's College, L. R. 6 Q.
Batterbury v. Vyse, 2 Huns & Colt 42; B. U5 [1871]; and see Memphis R. Co. -».
Moigan V. Birnie, 9 Bing. 672; Grafton v. Wilcox. 48 Pa. St. 161.
Eastern Counties R. R Co., 8 Exch. 699 " Q^iij^ins v. Lautenschlnger (C. C.) 74
Langd ell's Cases on Contracts 539, 598, Fed. Rep. 160; Nevin v. Craig (Minn.), 65.
850, 508, 550; Werslen v. Wood, 6 Term N. W. Rep. 86.
354 ENOINEEBINQ AND ARGHITEGTUHAL JURISPRUDENCE. [§ 417.
tion precedent to recovery on a collateral contract or guarantee by the
owner to pay a third party a sum advanced by liim to the contractor *^on
the completion of the houses in accordance with the contract/' although
the contract referred to does require the certificate as a condition precedent
to the contractor's recovery/
417. Right to Require Engineer's Certificate may be Waived.* —
Although it is well settled that when the architect's or engineer's certificato
or award is made a condition precedent to payment by the company, the
company is not obliged to accept or pay for work done until the condition
is performed/ yet it may waive the privilege of requiring it/ and the fact
that the agreement is under seal does not prevent its being waived by parol,
or even by a party's acts and behavior/ \ Such a clause is for the benefit of
the owner or company, and may be waived at his or its option. Other
proofs of the required fact may be accepted.* If one possessed of a right
conferred either by law or contract, knowing his rights and all the attend-
ant facts, does not forbear to do something inconsistent with tlie existence
of the right, or of his intention to rely upon it, he is said to have waived it.
No man is compelled to stand on a right which the law or his contract gives
h\m. Parties have the same right to add to, or vary a contract, after it is
made that they had to make it originally. The burden is on the party
asserting a waiver, or any modification or alteration of a contract, to prove
it. It is not necessary to show an express agreement for the waiver or modi-
fication, but, like any other fact, it may be proved by circumstances, such
^s the acts or language of the parties, which, of course, includes their cor-
respondence, and any other facts which throw light on the question.' The
waiver may be expressed or proved by acts and conduct of the party entitled
to demand it, and less evidence of waiver will be required when it clearly
appears that the contract has been more fully performed than would be
otherwise.'
As to what acts and conduct will amount to a waiver may be illustrated
by a few cases. The mere taking possession by the owner after tlie con-
tractor has quit does not constitute a waiver of the condition requiring the
engineer's certificate before payment.^ An acceptance of tlie building so
far as completed by the owner and architect, and an unconditional promise
to pay the balance when house is completed, by the owner, in consideration
» Lewis V. Hofire, 44 L. T. 66 [1881]. « Texas, etc , Ry. Co. v. Rust (Ark.), 19
•'Phelan «. Mayor, 56 N. Y. Sup. Ct. Fed. Rep. 239.
523 f1889]. 'Byrne v. Sisters of Cliarity, 45 N. J.
a Clarke v. Pope, 70 111. 128 [1873]. Law 213 [1883], and cases cited ; see Sln-
4Randel v. Chesapeake & De. Canal, 1 clair «. Tallmadge. 35 Barb. 603 [1861].
Harrington (Del.) 233 [1833]; Byrne v. « Hanley v. Walker (Mich.), 45 N. W.
Sisters of Charity, 45 N. J. Law 213 Rep. 57 [1890]; Smith t>. Brady, 17 K Y.
^{1883] 173 [1858]; nor is a taking possession be-
^Blethen ■». Blake, 44 Cal. 117 [1872]; fore completion, Bradley Currier Co. v,
Estell V. St. Louis, etc., R. Co., 56 Mo. 282 Bernz (N. J. Ch.), 35 Atl. Rep. 832.
11874].
* See Sees. 701, 721, and 726, infra. f See Sees. 122-131, supra, and 560-563, infra.
§ 417.] CONTRACT STIPULATIONS. 355
of the contractor's permitting him to occupy it by a tenant, has been held a
waiver of the architect's final certificate on the part of the owner.* If the
contractor be prevented from completing his contract, then the right to
demand a certificate from the engineer that the work has been completed is
waived.' *
When more than one-half of the contract price of a job has been paid
without requiring the production of the architect's certificates, as stipulated
for in the contract, and the final certificate for the residue of the work had
not been demanded, it was held that the right to demand the production of
such certificates had been waived." An acceptance of a building as under a
completed contract was held such a waiver as entitled the contractor to
recover, though no certificate had been given, and even though the architect
was not satisfied.* Where installments had been paid without a demand
of certificates, and after the work was finished the owner paid without ob-
jection three-quarters of the contract price, and it was proved that when
the builder made application for the payment of the balance, the owner
asks " Does that settle up everything ?" to which the builder replied, " No;
there is that $1000," referring to a loan lie had made to the owner in cash;
and the owner then said, " Oh, if you are going to ask for that $1000 I will
throw the whole thing into my architect's hands," it was held sufficient
evidence of a waiver of the certificate to submit the question to a jury.*"
Payment of some of the installments for work without requiring the produc-
tion of the architect's certificates, of itself has been held not to operate as
a waiver of the final certifictite upon the completion of the work." Partial
payments on certificates signed by the architect's assistant are not a waiver
of the right under the contract to a final certificate signed by the architect
himself
If the company will make use of the protection of the condition it must
be pleaded, or the company may be held to have waived it. If the case
be allowed to go to trial and before the jury, on the merits of the contro-
versy and on the issues presented, without insisting on the decision of the
architect, and without raising any objection to plaintiff's testimony, the
» Duell V. McCraw. 33 N. Y. Siipp. 528;- Rep, 523 [1889] ; Mitchell v. Wiscotta Land.
see also Coon v. Citizeus' Water Co. (Pa.), Co., 3 Iowa 209.
23 Atl. Rep. 505. ^ Haden v. Coleman, 73 N. Y. 567 [1878J. .
2 Justice vi. Elwert (Oreg.), 43 Pac. Rep. « Barton v. Herman, 11 Abb. Pr. (N. S.) >
649; and see Velsor v. Eaton (Sup.), 14 N. 378 [1872] ; Bradley Currier Co. v. Beiuz ;
Y. Supp. 467. (IS". J. Ch.), 35 Atl. Rep. 8:^2; and see
3 Bannister v. Patty's Exec'rs, 35 Wis. Flaherty i?. Miner, 123 N. Y. 382 ; Texas,
217 [1874] ; Vermont St. Ch. 'd. Brose, 104 etc., R. Co. v. Rusi. 19 Fed Rep. 239 ;
111. 206; Goldsmith v. Hand, 26 Ohio St. Haden v. Coleman, 42 N. Y. Super. Ct.
101. 256 [1877] ; Brown v. Wine Hill (Wnsh.),
4 Smith V. Alker, 102 N. Y. 87 [1886] ; 28 Pac. Rep. 1037 ; and see Hattin v. Chase.
cUiw] 1 Russell on Arb. 115: Morse on 88 Me. 237.
Arb. 99 ; Evans v. Ives, 15 Phila. (Pa.), ' McEntyre v. Tucker (Com. PI.), 25 N..
683 ; Dickinson v. Railroad, 7 W. Va. 390; Y. Supp. 95.
see also Katz v. Bedford (Cal.), 19 Pac.
* See Sec. 397, su^^ra.
356 ENGINEERING AND ABGHITEGTURAL JURISPRUDENGE [§ 417.
right to an adjustment of the differences by the architect will have been,
waived/ It is not always necessary to allege the performance of the condi-
tion precedent on the part of the contractor. ''
Acceptance of monthly payments by the contractor, according to en-
gineer's estimate, and giving a receipt in full, precludes the contractor from
obtaining further compensation even though he did dispute its correctness
at the time it was rendered.'' An action by the contractor on an award of
an engineer will affirm its validity, and he cannot thereafter make a de-
fense that the exact terms of a stipulation were not complied with.*
' Summerlin v, Thompson, 31 Fla. 369. Hennegan v. United States, 17 Ct. of CI.
2 Wilcox V. Stephenson (Fla.), 11 So. 278.
Bep. 659. * Semble, Anderson v. Miller (Ala.), 19
3 Case v. United States, 11 Ct. of CI. So. Rep. 303.
573 ; and see Green v. Jackson, 66 Ga. 250;
CHAPTER XIV.
RECOVERY BY CONTRACTOR WITHOUT PRODUCING ENGINEER'S
CERTIFICATE.
CONDITION" PRECEDENT EXCUSED.
418. Provision that the Engineer's Decision, Determination, or Estimates
€hall Not be Questioned or Impeached upon Any Ground Whatsoever.
Clause: '^It is hereby further agreed and understood that the direc-
tions, decisions, admeasurements, valuations, certificates, orders,' and
awards of the engineer which may be made from time to time shall
not be set aside, nor be attempted to be set aside, nor be objected to on.
account of any technical or legal defects or errors therein, or in the
specificatians, or in the contract founded thereon, or on account of any
informality, omission, delay, or error of proceeding, in or about the
same, or any of them, or in relation thereto, or on any other ground,
or for any other reason, or for any pretense, suggestion, charges, or
insinuation of fraud or collusion, or confederacy, or otherwise howso-
ever; and it shall not be competent for the contractors or the company
to except to any hearing or determination before or of the engineer, nor
of any certificate, order, or award had, proposed, made, or executed by
the engineer, on the ground of any want of jurisdiction, or excess of
authority, or irregularity of proceeding, or otherwise howsoever; but
any and all matters made the subject of any such hearing or determine*
tion, or included in any certificate, order, or award, and whether of
retrospective or prospective operation or effect, shall be deemed to have
been properly submitted to the engineer, and to be taken to have been
properly adjudicated upon."
419. The Contract must Not Be an Instrument of Fraud. — The adoption
of such a clause as that given is unusual, it having been taken from an early
English contract. The reasons for inserting such a stipulation will be found
in the following sections, but the propriety of inserting it may be doubted.
If the clause is intended to waive any and all kinds of injustice, such as
frauds, conspiracies, and impositions, it may well be doubted if it would
be worth the writing. The courts are not disposed to allow a man to be
made a fool, or to sacrifice or forfeit certain inalienable rights which his citi-
zenship and the constitution of the state and of the United States guarantee
him. Such an express waiver is in itself evidence of imposition and fraud
which a court could not well overlook. However, ar late as 1892 an English
court held that such a clause as that given was not contrary to public policy,
357
358 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 420*
in the absence of fraud on the part of the parties to the contract, and that
the parties could agree not to raise any question as to the arbitrator/ An
American court has held a stipulation in a contract that false representation*
or fraudulent practices employed in procuring it shall not ajffect its validity-
is itself invalid.^
420. Under what Circumstances may Contractor Recover without Procur-
ing Engineer's Certificate. — It being settled that such a condition precedent
will be upheld by the courts, and is obligatory upon the parties according to
the terms of their contract,'' * it remains to inquircunder what circumstances^
if ever, the contractor can recover payment for his work without first pro-
ducing the engineer's certificate, or showing performance to his satisfaction^
Of course the right to require a certificate as a condition precedent may be
waived by the owner,f but there are certain circumstances which, if alleged
in the contractor's claim and fully set forth in his declaration, will entitle
him to come into court and to bring suit for the recovery for his work.
421. Company or Owner must Furnish Competent and Honest Engineers^
— Every contract should be read as a whole, and the intentions expressed
and the obligations assumed by the parties should be gathered from all the
parts taken together.* In construing a contract, a material clause cannot
be disregarded.* From every engineering or architectural contract it may
be clearly understood that when certain important questions and matters are
left to the determination or decision of the engineer or architect, they are
left to his best judgment, skill, and integrity, and it cannot be denied that
both parties contracted with reference to an houesi^ if not an impartial,
determination of the questions submitted." "When this is the evident inten-
tion of the parties it should be and is considered with the fact that the engi-
neer's decision, determination, or certificate is made a condition precedent te
recovery by the contractor. It cannot be contended that the parties ever
intended to be bound by the decision of a dishonest, fraudulent, or even
ignorant engineer," or that they assumed obligations and undertook tasks
which might be rendered nugatory by the arbitrary and unreasonable refusal
of the engineer to act, or by insuperable difficulties that might intervene.
Courts have therefore given these conditions and stipulations a liberal con*
gtruction, and have held that an agreement on the part of the company to
pay for work which their engineer should certify as having been done was a
covenant by the company that their engineer should make the certificates;'
»Tulli8«. Jackson, 3 Ch. 441 [1892] ^gtarkey r. De Graff. 22 Minn. 431;
^Hoffliu «. Moss (C. C. A.), 67Fed. Rep. Wallis Iron Works v. Monmouth Park
440. Ass'n (N. J.). 26 Atl. Rep. 140.
•McMabon t. N. Y. & Erie R Co..- 20 ^ World's Fair Hotel v. Courtright, 57
N. Y. 463 [1859]; Sweeney v. United 111. App. 281.
States, 109 U. S. 618 [1883] ; Martiusburg « Atlanta & R. Ry. Co. i\ Manghan, 49
& P. R. Co. V. March, 114 U. S. 549 ; many Ga. 266 [1873].
cases collected in 29 Anier. & Eng. Ency. 'Randel'?). Ches. & Del. C, 1 Haning-
Law 929. ton (Del.), 233 [1833] ; accord, B. & O. Ry.
*8e6 cases cited, Sec. 414, supra. \8ee Sees. 413 and 417, supra.
^ 4^1.] CONTBAGT STIPULATIONS. 359
that an agreement that some competent engineer, to be selected by the com-
pany, should inspect, estimate, etc., the work, which estimates, etc., should
be final and conclusive, was a covenant by the company to select an engi-
neer, and that he should inspect, estimate, etc., the work;^ that whenever
it was mutually agreed between the contractor and company that such arbi-
trary and extended powers should be given to the engineer of the company,
such as inspecting, superintendence, and the determination of quantity,
quality, and classification of work and materials, there was an implied under-
taking or agreement on the part of the company that such engineer should
be competent, honest, and reasonably careful;' that he should be free to
exercise a sound, disinterested, and impartial judgment, and that the com-
pany' should see to it that the engineers employed by it performed the
service expected of them at a proper time and in a proper manner; * that if
false quantities and classifications are returned by an engineer whom the
company has clothed with authority to make the classifications and calculate
the quantities, and either the contractor or the company must suffer for his
errors, the loss should fall upon the company who has placed it in the
power of the engineer to make the mistake.* " There is,^' says the court in
another case, " more reason for holding a company responsible for the
mistakes and bad faith of its own officers [engineer], than there is for
making the contractor suffer for the fraud or error of the engineer, over
whom he has no control or direction, and who is an entire stranger to the
contract."'
In sympathy with these views and circumstances the courts undertake
to watch with zealous care the exercise of the engineer's approval, and con-
sider it their duty to scrutinize his estimates with great care, and require on
his part the utmost diligence and good faith. ^ Under such reasonable con-
structions of the stipulations of a contract the cases are numerous in which
the full performance of conditions precedent has been dispensed with. If
the company has not performed its part of the agreement, or if the implied
undertaking on its part to furnish honest and skillful engineers has not
Co. V. Polly Woods Co., 14 Gratt. 448 N. H. 459 [1858] ; see also Merril v. Ithaca
[1858] ; Kistler v. Ind. & St. L. R. Co. 13 & Oswego R. Co., 16 Wend. 586; and see
Amer. &> Eng. Ry. Cas. 314. Pauly Co. v. Hemphill Co. (C. C. A.), 63
» Randel v. Ches. & Del. C, 1 Harring- Fed. Rep. 698.
ton (Del.) 233 [1833] : accord B. & O. Ry. -"Mansfield, etc., Ry. Co. ■». Veeder, 17
Co. V Polly Woods Co. (Va.), 14 Gratt 448 Ohio 385.
[1758] ; Guideti) Mayor, 36 N, Y. Supr. ^Herrick^. Belknap, 27 Vt. 673 [1854];
Ct. 557 [1873] ; Rnsking v. Union Pipe & Louisville, E. & St. L. Ry. Co. v. Donne-
C. Co. (Sup.), 39N. Y. Supp. 216; accord gan (Ind.). 12 K E. Rep. 153 [1887];
McMalion v. Erie R. Co., 20 N. Y. 463; accord, Chism«. Schipper, 51 N. J. Law 1
Combe V. Greene. 2 Dowl. (N. 8.) 1023 ; St. [1888].
Louis & P. R. Co. v. Kerr (III), 38 N. E. ^ p,.ice v. Chicngo, S. F. & C. Ry. Co.,
Rep. 638; but see Green v. State, 8 Ohio 38 Fed. Rep. 307 [1889].
310. « Reynolds v. Caldwell, 51 Pa. St. 308 ;
2 Price V. C. S. F. & C. Ry. Co., 38 Fed. a7id see Lynn v. B. & O. R. Co., 60 Md.
Rep. 307 [1889] ; Louisville E. & St. L. 404.
Ry. Co. V. Donnegan (Ind.), 12 N. E. Rep. ' Wood v. C. 8. F. & C. R Co., 39 Fed.
153 [1887] : Smith v. B. C. & M. Ry., 36 Rep. 52 ; Pierce on Railroads, 382.
360 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 422.
been performed, or if the conditions under which both parties have con-
tracted do not exist, then the performance of the condition precedent may
be excused, and the contractor be permitted to recover without furnishing
the required certificate.'
422. Circumstances which may Excuse the Contractor from Producing"
Engineer's Certificate. — The reasons usually assigned for relieving a con-
tractor from producing the engineer's or architect's certificate are those
enumerated below, which are arranged in the order of frequency in which
the cases occur in the books. The same order will be followed in discuss-
ing them in this work. They are: (1) Fraud, collusion, bad faith, or gross
error amounting to bad faith;" (2) impossibility of performance rendered
by time or accident or measures beyond control;' (3) hinderance or pre-
vention by the company; (4) secret interests of, or inducements to, the
engineer; (5) refusal to act on part of the engineer.* Each and all of these
reasons have been declared sufficient to excuse the contractor from per-
formance of the condition precedent to his recovery.
423. Decision is Not Final and No Certificate is Required if there
Has Been Fraud and Collusion. — Fraud and collusion between the com-
pany and its engineer or an owner and his architect will relieve the con-
tractor from producing the certificate, or from showing that it was done to
their satisfaction, in all cases.*
424. Fraud Without Connivance or Collusion of Owner or Company. —
There has been some doubt expressed, in the cases, whether fraud of the
engineer alone without procurement, collusion, or connivance of the com-
pany or owner would be sufiicient excuse for the nonperformance of the con-
dition and to allow recovery by the contractor by an action in a court of law,
and contrary decisions have been rendered ;' but it is well settled that a court
of equity will take jurisdiction in case of fraud of the engineer alone, and
will give relief to the contractor.'
425. Courts of Equity Have Jurisdiction where Fraud Alone Xe
Alleged, and in Some States Courts of Law Have Jurisdiction. — In states
where courts of law and courts of equity exist independently it may be
doubted if fraud alone would entitle the contractor to recover in a court of
law. It is believed not generally ; not if the final estimate and certificate
1 Chism V. Schipper, 51 N. J. Law 1 676; Clark v. Wat5?on, 18 C. B. (N. S.)
[1888]; B. & O. Ry. Co. t). Polly Woods 278; Downey v. O'Donnell, 93 111. 559;
Co., 14 Gratt. 448 [1858] ; Godefroi and cases in 29 Amer. & Eng. Ency. Law 930
Short on Ry. Cas. 94. and 935.
'^ See Hanley «. Walker (Mich.), 45 N. * Leake's Digest of the Law of Contracts,
W. Rep. 57 [1890]. p. 640 ; Barker v. Belknap, 27 Vt. 700
» See Wolf V. Howes, 20 N.Y. 197 [1859]; [1855] ; but see contra. Bannister v. Patty's
Jones t). Judd, 4 Comstock (N. Y.) 412 Exc'rs, 35 Wis. 215 [1874].
[1850]. ' Scott V. Corporation of Liverpool, 3 D.
* See Phelan «. Mayor, 56 N". Y. Supr. & J. 334 ; and see Price v. Chicago, etc.,
Ct. 523 [1889]. Ry. Co., 38 Fed. Rep. 308 [1889] ; cases in
« Kidwell v. B. & O. Ry. Co., 11 Gratt. 29 Amer. & Eng. Ency. Law 935.
§ 426.] CONTRACT STIPULATIONS. 361
be considered an award.* The suit should be in equity by a bill in order to
obtain relief on ground of fraud and corruption alone.'
It has been held that an engineer's estimate was not strictly an award; *
that the analogy was not complete because the engineer was not an indif-
ferent and disinterested person, but an officer and agent of the company,
and that a company could not take advantage of its agent's wrong, though
it did not participate in its perpetration. In case of award the cause of
action is supposed to exist already, which is referred to the decision of arbi-
trators instead of a court, and the decision is like a judgment; while in the
case of a certificate or final estimate the estimate itself is a part of the cause
of action, the performance or a sufficient excuse for the nonperformance of
which must be proved by the contractors to maintain the action. Furthermore,
the performance of the condition precedent devolves upon the company or
its agent, not on the contractor; it is only necessary that he create the obli-
gation. If the company's engineer has made a fraudulent certificate or
final estimate it is not a good performance, and ^s therefore legally insuf-
ficient. The question of the engineer's fraud should be left to the jury for
its determination.* " The complaint is not that something has been done and
done wrongfully, but that there has been an improper refusal to do that
which ought to have been done," said a judge in answer to an averment
that the action could not be brought in a court of law.*
426. Difficulties Met in an Action at Law. — The question as to whether
an action should be allowed in a court of law is taken up and discussed at
great length in a New Jersey case in a court of law ' by the chief justice,
associate justice (dissenting), and the attorneys. The action was on the con-
tract, and, after a general review of pretty nearly all the decisions for and
against a recovery at law, judgment was given to the contractor. The diffi-
culties presented were numerous, and the case seems to have been decided
more upon the principles of justice and equity than those of common-law
pleading and practice. The element of agency was not brought out, but the
engineer was regarded as an arbiter between the parties.
When fraud alone is charged, and collusion of the company is not
alleged, one serious difficulty presents itself in pleading The contractor
then seeks to recover against the company for the fraud of the engineer
without offering to show the company's participation ; and the difficulty is,
how can he be allowed to recover against one person [company] and charge
» B. & 0. Ry. Co. « Polly Woods Co. 483; Nixon v Taff Yale R. Co., 7 Hare
(Vh), 14 Gratt. 459. 136 ; M'Intosh v. Midland Cos. Ry. Co., 14
2 Wood V Chicago. S. F. & C. R. Co., 39 M. & W. 548.
Fed. Rep. 52; Alton, etc., R. Co. f. » B. «fe O. Ry. Co. ®. Polly Woods Co..
Northcott, 15 111. 49 ; Herrick v. Vt. Cent. 14 Gratt. 459 ; Anderson v. Imhoff (Neb.)»
R. Co . 27 Vt. 673 ; B. «& O. R. Co. v. 51 N. W. Rep. 854 [1892].
Polly Woods Co., 14 Gratt. 459 ; In re * Batterby v. Vyse, 2 H. «fe C. 42.
Wausbeck Ry. Co., L. R. 1 C. P. 269; «* Chism v Schipper, 51 N. J. Law X
Waring v. Manchester Ry. Co., 7 Hare [1888].
*Se6 Sees. 348, 408, sxipra, 485. 521 and 525, infra.
362 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [% 426.
the fraud of another person [the engineer], who is not a party to the
action, unless the engineer is regarded as the company's agent and servant,
and the company responsible for his acts.
Either collusion must be charged or the engineer must be regarded as
the agent of the company.' Many actions are maintained at law without
alleging and proving collusion of the company upon the gro-^nd of agency;
the fraudulent acts of the engineer being charged to the company, tlie
courts holding that the relations between the parties imposes upon the com-
pany an implied contract that the engineer will do his duty and act fairly/ *
The New York courts have declared that a contractor might recover
upon giving proof of performance of the work and proving bad faith
and an unreasonable refusal on the part of the engineer to give his certifi-
cate, as well upon an action of contract as upon a quantum meruit. It
seems to have been put upon the ground of justice, and the judge declared
that "to defeat a recovery in such a case, because of the nonproduction of
the architect's certificate would be manifestly unjust to the contractor and
a reproach to the law.'" The fact that in New York the " code practice
and pleading" prevails may account for the decision, for it is not always
followed in other jurisdictions.*
Another argument against recovery at law without the certificate stipu-
lated for, is that the contractor has other remedies. He can, by bill in
equity, compel the engineer to deliver the certificate.* Mandamus will lie
to compel 3 surveyor, appointed to superintend work on a ditch under the
Indiana Drainage Act, to issue certificates for work done by the con-
tractor," but not until he has completed his contract according to specifica-
tions and within the time limit,' or he may sue the engineer for damages
caused by his fraud.®
It must be answered on behalf of the contractor that both these remedies
are impracticable. First, because a court of equity requires the most
convincing' proofs of corruption and fraud to decree a specific performance,
of an act requiring the exercise of the judgment of the engineer, which, as
every contractor knows, are almost impossible to obtain; and secondly, that
though an action against the engineer or architect might give him a judg-
ment for damages, that is not what the contractor seeks ; for judgments
» Byrne v. Sisters of St. E., 16 Yroom. 33 Ind. 157.
213. « State v. Bever (Ind.), 41 K E. Rep.
2 Batterby v. Vyse, 2 H. & C. 43; An- 802.
derson «. Imboff (Neb), 51 N. W. Rep. ''State v. Bever (Ind.\ supra. Man-
854 [1892]. damns lies to compel a city enp'ieer to
3 Thomas v. Flurry, 26 New York 26. furnish lines and levols in accordance with
^ Byron tJ. Low (N. Y.), 16 N. E. Rep. a contract entered into with with relator
45 [1888]. by the city, St;ite v. Bell (La.), 21 So.
5 Sharpe v. San P. Ry. Co., 8 Ch. Ap?\ Rep. 724.
606; and see Wren i). Indianapolis, 96 111. ^^RMndcl v. Trimen, 18 Common Bench,
206; and see also Indianapolis v. Patterson, 786 [1856].
* See Sec. 438, infra.
§ 426.] CONTliACT STIPULATIONS. 363
against engineers with such corrupt aud fraudulent records are not
likely to prove much satisfaction for the performance of engineering works.
On the other hand, permitting the contractor to recover at law in one
action prevents a multiplicity of suits and cross-actions which is in keeping
with the policy of the American jurisprudence. The New Jersey case cited
beiirs out this assertion, which proceeded upon the view that the engineer's
certificate was an award, and yet sustains the contractor's right to recover in
a court of law without the production of the certificate. The opinion con-
cludes by saying that "the awards authorized by the parties will for all
useful purposes be in truth finalities; they cannot be impeached for lack of
skill or want of knowedge of the arbiter [engineer], nor on the ground
that his judgments do not square [agree] with the judgments of other per-
sons; such awards can be vitiated by fraud alone, which must be proved to
the satisfaction of a jury under a watchful judicial supervision;" and fin-
ishes by expressing the opinion *'that such a construction rests upon the
triple ground of legal principle, authority, and public policy.*' *
Though courts of law frequently assume jurisdiction over such cases when
the engineer is in the employ of one of the parties, yet it is submitted that
they would not if the engineer were a professional man, as a consulting
engineer acting strictly in the capacity of an arbitrator, but the contractor
would then have to appeal to a court of equity. The position that courts of
law take depends often upon whether they regard the estimate and certifi-
cate of the engineer an award, or whether they merely regard it as the per-
formance of an obligation by the company by or through its agent upon the
completion of the work by the contractor, the honest and faithful execution
of which devolves upon the company.
In New Jersey,' New York,' Massachusetts,* Vermont,' New Hampshire,*
Georgia,' Missouri," and in other jurisdictions recovery has been allowed in
courts of law, but in a recent case in the circuit court of Illinois it was
held that on general principles whether the estimates and certificate were,
or were not, technical awards, courts of equity alone had authority to vacate
them on the ground of mistake, fraud, or gross error amounting to fraud
when such estimates have been made in pursuance of contract provisions;
but that if the engineer failed to act, and make his decision and estimate,
that a suit at law might be maintained on the contract to recover what was
due,' The judge said: ''When the gist of the cause of action is the fraud
1 Clii<m ^. Schipper, 51 N. J. Law 1 « Smith v. B. C. & M. Ry., 36 N. H.
(1888] ; 5m^ 5^0 «;«(? the dissenting opinion; "459 [1858]; Britton v. Turner, 6 N. H.
uccord. Wolf V. Hawes, 20 N. Y. 197 481 [1834].
(1859.] 'Atlanta & R. A. L. Co. v. Manghan, 49
* Chism «. Schipper, supra. Ga. 266.
' Thomas i). Flurry, 26 N. Y. 26; Wolf » Williams v. Chicago, etc. R. Co., 112
t>. Hfiwes. 20 N. Y. 197 [1859]. Mo. 463 [1892].
* Cleary v. Sohier, 120 Mass. 210 [1876]. » StHrkey v. De Graff, 22 Minn. 431 ; see
» Herrick v. Vermont C. R. Co., 27 Vt. also B. & O. Ry. Co. v. Folly Woods Co..
073. 14 Grait. 459.
364 ' ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 426
or mistake of the engineer, the question whether such errors exist in the
estimates and their probable amount, and whether the estimate ought to be
disregarded, are questions for the chcUicellor and not for a jury."^
In another case decided by the Illinois supreme court may be found a
somewhat different statement of the law. This case holds that fraud in an
award may be shown either at law or in equity, but that mistake is cogniz-
able only in chancery; and the court goes on to say that *'even if mis-
take could be corrected in an action at law, it would have to appear that
the engineer in making the mistake had been misled, deluded, or mis-
apprehended the facts." '
426. Courts of Equity Will Grant Relief in Case of Fraud or Col-
lusion.— A court of equity will not hesitate to take hold of a case whei'e
there is fraud or collusion ' between the company and the engineer to
injure the contractor, or where the accounts are too complicated to be taken
at law. In England an equity court will give relief if it can be shown that
the engineer has wrongfully withheld or deferred the granting of certifi-
cates for work actually done according to the contract.* An English court
has even gone so far as to declare that when a contractor's inability to
obtain adequate relief at law has arisen from the acts of the company or its
engineer, whether such acts arose originally from a fraudulent motive or
not, a court of equity will not permit such acts to defeat the rights of the
contractor.* In this case the company had agreed to advance money to con-
tractor as work progressed, such progress to be certified by the engineer.
Whatever doubt may exist as to the recovery of the contractor in a court
at law, there is no doubt but that the condition precedent is as good
a bar to an action at law as it is to a suit in equity, and on that ground
courts of equity have refused an injunction to restrain the contractor from
bringing an action at law." They have also, in the absence of an allegation
of fraud, refused an order for payment and an accounting of the amount
due the contractor on the ground that there was an adequate remedy at law.*
427. Fraud and Collusion must Be Alleged and Proven.— Tlie fraud and
collusion must be specifically alleged in the declaration or complaint, and
the contractor must be prepared to prove his allegations.® If they are not
set forth in the complaint, evidence cannot be introduced of fraud or mis-
take of the architect or engineer in an action on the contract,' or to show
the amount of work done.'" Tiie fraud, misconduct, or mistake must be
» Wood V. C. 8. F. & C. R. Co . 39 Fed. 819 [1851].
Rep. 52 [1889]. " Baron de Worms v. Mellier, 16 Equitv
»Newlan t>. Dunham, 60 111. 233. . 554 [1S73]
» Tetz V. Butterfield. 54 Wis. 242 [1882"
Herrick v. Belknap. 27 Vt. 673 [1854;
' B"rnz v. Marcus Suyre Co. (N. J.), 30
Atl Rep. 31,
M'lntosh i\ Great Western Ry., 2 Mac. & « Piuci v. Barnsev, 20 N. Y Siipp 375
G. 74 ; s. c, 14 Jnr 819 ; Bliss v. Smith, 21 N Y. Supp. 1099.
34 Beavan 508 [1865]. ^ Hudson v. McCMrtney, 33 Wis 331
* God efroi and Short on Ry. Cas. 94, an'Z [1873] ; Perkins v. Giles, 53 Barb. :^42 ;
cases cited. Wolf v. Michatjlis 27 111. App. 336 [1888].'
' M'lntosh V. Gt. Western Ry., 14 Jur ^o Trustees of Canal Co. v. Lynch, 10 III
§427.] CONTRACT STIPULATIONS. 365
pleaded even to set aside an appraisal of lands made by appraisers.* Gen-
eral allegations are not sufficient ; the facts should be specifically set forth
as well as the grounds on which the award is to be set aside." The fraud
must be proved like any other fact alleged.' To set aside an award th©
contractor must not only show mistake or fraud, and that he was prejudiced
thereby, but also that, but for it, the award would have been different.*
It has been held that an allegation " that the engineer had failed to
measure the work, full compliance with the contract on part of a contractor,
and an offer of proofs of these, with the amount and value of the work,'*
were sufficient to admit evidence showing that the engineer had miscon-
strued the contract, and had not measured the work according to it, and
that no allegation of fraud was necessary/
The fraud, or such conduct on the part of the engineer as would neces-
sarily imply fraud, must be specifically charged in the contractor's declara-
tion, tliough a charge that the engineer " had unfairly, improperly, and
contrary to the true intent and meaning of said contract, and had so negli-
gently, in collusion with the company and by their procurement," was held
to be- a sufficient declaration of fraud. The term collusion was defined as
a secret agreement for fraudulent purposes, which saved the declaration.*
And in another recent case it was held that a declaration which charged the
conduct of the engineer as being '* arbitrary, unreasonable, wrongful, and
in bad faith," was sufficient to include a charge of fraud/
Equity will entertain a bill which alleges an acceptance by the owner of
an order by the contractor subject to the following condition: *'If the
work should be approved by myself and the architect," and alleging further
that the contractor left the work unfinished, and departed from the state;
that his whereabouts were unknown; that the work necessary to complete
the building was slight; that complainant urged the owner to complete the
same according to contract, and pay the balance into court, but that he
had failed to do so; that such conduct amounted to a fraud on complain-
ant. The contract provided that, if the contractor at any time refused to
supply material or workmen, the owner could supply the same and complete
the work according to the contract. It was held to sufficiently allege the
fraudulent conduct of the owner/ It was also held that the bill was not
521 ; Dunaberg. etc., Ry. Co. v. Hopkins, * Tank v. Rohweder (Iowa), 67 N. W.
86 L. T. 733 ; but tee Mansfield v. Doolin, Rep. 106.
4 Ir. R. C. L. 17, and Adams 1). New York, " "vviiiiums «. Chicago, etc., Ry. Co.
4 Duer 295. 1 Hilt. 388. (Mo.), 20 S. W. Rep. 631, hut see same case
» Guild V. Atchison, etc., R. Co. (Kans. in 112 Mo. 463 [1892] ; accord, Wilcox v.
Sup.), 45 Pac. Rep. 82 ; and see Williams Stephenson, 30 Fla. 377.
1). The Chicago, etc., R. Co., 112 Mo. 463 eRatterby v. Vyse, 2 H. & C. 42 ; Ste-
[1892]. vensou v. Watson, L. R. 4 C. P. D. 148 ;
« Bowden v. Crow (Tex.), 21 S. W. Rep. see also Johnson v. White (Tex.). 27 S. W.
612. Rep. 174.
» Burton v. Willen, 6 Del. Ch. 403 ; sem- ^ Fletcher v. New Orleans & N. E. R.
ble, Robertson u. Lion Ins. Co (C. C), 73 Co. (La.), 19 Fed. Rep. 731 [1884].
Fed. Rep. 938 ; Fowler v.\ Deakman, 84 « Marcus Say re Co. v, Bernz (N. J. Ch.)^
111. 130. 26 Atl. Rep. 911.
366 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 428.
defective because it failed to allege that the buildings were completed to the
satisfjiction of tlie architect. An allegation by the contractor that he de-
manded the certificates from the architect, who fraudulently refused to give
them, and that the building had been completed in strict accordance with
the specifications,. are sufficient, if sustained by proof, to relieve the con-
tractor from procuring the architect's certificate.'
The fact, however, that the above allegations sufficed in those cases is no
positive criterion that they will get the same liberal construction in all
courts. It is essential that the fraud or impossibility, which is the excuse
for the nonperformance of the condition precedent, be clearly and fully de-
clared. Thus a declaration that a building had been -completed according
to the contract, and that the owner or company had accepted it, but that the
architect had arbitrarily, unreasonably, and wrongfully refused to give his
certificate, without alleging fraud or collusion, or that the owner had re-
ceived .and accepted it as a full performance of the contract, was held to
show no right of an action, and the contractor was nonsuited.^ When
the certificate of the architect has been made a condition precedent, it has
been held an error to charge that the jury might find the withholding of
the certificate fraudulent, notwithstanding material variations from the
contract, if such variations did not afford a substantial reason for its with-
holding." It is error to submit the question of amount of work done or
materials furnished to the jury, unless bad faith or palpable mistake on
the part of the engineer is shown.*
Many cases might be cited for and" against a recovery at law for the
fraud of the engineer or architect, but they are decided frequently upon
rules of practice, which are different in the several states, and are beyond
the scope of this book. Suffice it to say, that there is a remedy, and it is
well settled that fraud in the engineer will dispense with the certificate, and
that the contractor can recover without its production. As to how he
may recover, and in what court, is a question to be learned from a careful
study of the decisions and rules of practice of each state.
428. When • Contractor may Recover Without the Engineer's Certif-
icate.— What will prevent or permit a contractor's recovery is best given in
the language of the courts, which is given briefly in the cases cited below.
Thus if the certificate has been withheld by fraud and collusion between
the company and its engineer, or the owner and its architect, the contractor
•may recover without it,* or if fraud or bad faith be shown.'
' Michaelis v. Wolf (111.), 26 N. E. Rep. N. Y. Supp. 522.
384 [1891]. ^In a court of law, Batterby v. Vyse.
2 Schenke «. Rowell. 7 Daly 286 [1877) ; 2 H. & C. 42; Kemp v. Rose, 1 Giff. 258;
Clarke v. Watson. 18 C. B. (N. S.) 278; Kimberly v. Dick, L. R. 13 Eq. 1; Hart-
but see, contra, Lewis v. Hoar, 44 L. T. 66 ford F. L. Co. v. Bonner Mer. Co., 56 Fed.
[1881] Rep. 378; in equity, M'lutosh v. Gt. W.
3 Bradner v. Roffsell (N. J. Err. & App.), Ry. , 2 Mac. & G. 74; Wood v. Chic, S. F.,
81 Atl. Rep. 387. etc., Ry. Co., 39 Fed. Rep. 52 [18891.
* Smith V. City of New York (Sup.), 42 »Lynn v. B. & O. R. Co., 60 Md. 404;
§ 428.]
CONTRACT STIPULATIONS.
367
It is more frequently stated conversely, viz., that no recovery can be had
without the engineer's certificate or in excess of his estimates, "unless,"
•*'only when," "except," '^ until" it is shown that there was fraud or collu-
sion.' * The cases are far more numerous in which it has been declared tiiat
the performance of the condition precedent could be avoided only for
fraud, collusion, bad faith, etc., of the engineer, or that its performance
had become impossible, than they are frequent in which the certificate has
been actually dispensed with.f
The same general principles of fraud, or what is equivalent to fraud,
have been set forth by the courts in their opinion in all the cases in language
whose phraseology has been as varied as the facts and circumstances attend-
ing the cases, and many of these it is believed are best given in the language
of the ju.stices who delivered them. Thus a common exception made in
several cases in the United States courts is " unless there is fraud or such
gross mistake as would necessarily imply bad faith or a failure to exercise
an honest judgment,"' or "unless fraud or mistake or undue influence or
want of good faith such as is the subject of relief by the ordinary principles
of equity," or '^ without the most irrefragible proof of mistaken fact or
■corruption in the engineer or positive fraud in the company in procuring a
wrong estimate," * or '^ unless there is fraud, bad faith, or clear evidence
Ohism V. Scbipper, supra; B. & O. R.
Co. V. Polly Woods Co., 14 Gratt. (Va.)
447; Bannister v. Patty's Exrs., 85 Wis.
215 [1874]; Wilson v. York, etc., R. Co.,
11 G. & J. 58; B. & O. R Co. v. Resley,
7 Md. 297; Hudson v. McCartney, 33 Wis.
4J31 [1873] ; Tetz v. Butterfield, 54 Wis.
242; Hanley v. Walker, 79 Mich. 607;
Schenke «. Rowell, 7 Daly 286; Snell v.
Brown, 71 111. 133; Whiteman v. Mayor,
€ic., 21 Hun 117 [1880]; see also Williams
^. Chicago, etc., R. Co (Mo.), 20 8. W.
Rep. 631; Smith v. White, 5 Neb. 408;
Dorw'ii V. Westbrook, 33 N. Y, Supp.
449; Michaelis v. Wolf, 136 III. 68; Sweeny
-y. U. S., 109 U. S., 618; School Dist. v.
Randall, 5 Neb. 408; Dabs v. Nugent. 13
L. T. N. S. 396 ; M'Intosh v. Gt. Western
R , 13 Jur. 92, 14 Jur. 819 ; Mercer v.
Harris, 4 Neb. 77; Waring v. Manchester,
€tc., R. Co., 7 Hare 482 ; affirmed in 2 H.
<& Tw. 239.
'In equity, Scott v. Corporation of L.,
3 D. & J. 334; and see Grofton v. E. L. R.
€o , 8 Exch. 699; Monongahela Nav. Co.
®. Fenlou (Pa.). 4 W. & S. 205 [1842];
Lauffdon v. Northfield, 44 N. W. Rep. 984
[1890]; Gay «. Haskins, 30 N. Y. Supp.
191.
2 Kirchlberg v. United States, 97 U. S,
398; Sweeney v. United States. 109 U. S.
618; s. c, 3 Sup. Ct. Rep. 344; Martinsburg
& P. R. Co. V. March, 114 U. S. 549 [1884] ;
Hot Springs Ry. Co. v. Maher, 48 Ark.
522 ; St. P. & N. P. Ry. Co. v. Bradbury
(Minn.), 44 N. W. Rep. 1; Wilcox ©.
Stephanson (Fla.), 11 So. Rep. 659; Mem-
phis R. Co. V. Wilcox, 48 Pa. St. 161 [18641;
G. H. & S. A. R. Co. V. Henry, 65 Tex.
685 [1886]; Williams v. Chicago, etc., R
Co., 20 S. W. Rep. 631; 112 Mo. 463 [1892];
Monongahela Nav. Co. v. Fenlon (Pa.), 4
W. & S. 205 [1842]; Elliott v. Missouri. K.
& T. Ry. Co. (C. C. A. ), 74 Fed. Rep. 707;
Mackler io. Mississippi, etc., R. Co., 62 Mo.
App. 677; Northwest Baptist Ch. v. Doe
.(Tex.), 35 S.W. Rep. 145; Snaith v. Smith,
27 N. Y. Supp. 379; semble, Wyckoff v.
Meyers, 44 N. Y. 145; Schmidt v. Nortli
Yakima (Wash.), 40 Pac. Rep. 790; Ogden
1). United States, 60 Fed. Rep. 725: Mc-
Malen v. New York, etc., R Co., 20N.Y.
463; Howard v. Alleghany Val. R. Co.. 69
Pa. St. 489; Fox i;. Railroad Co.. 3 Wall.
243; and 19 Amer. & Eng. Ency. Law 874;
Grant v. Savannah, etc., R. Co., 51 Ga.
348.
'Mansfield, etc., R. Co v. Veeder, 17
Ohio 385; E. Tenn., V. & G. Ry. Co. v.
Cent. Lumb. M. Co. (Tenn.), 32 S. W. Rep.
635.
"McCauley v. Keller (Pa.), 18 Atl. Rep.
607 [1889]; Vanderwerker -». V. C. Ry. Co.,
27 V t. 130 [1854] ; Hostetter v. Pittsburgh,
107 Pa. St. 433.
* Many other cases cited in Sees. 436-443, infra. \ See Sees. 429-431, infra.
368 ENQINEERING AND ARGHITEGTURAL JURISPRUDENCE. [§ 428.
of mistake or the estimate is palpably perverse, oppressive, and unjust/' *
or ** except in case of fraud or plain and palpable mistake/' ' *'in th&
absence of fraud/" " unless fraudulently made/'* *'or fraudulently with-
held/' ^ " in absence of fraud or mistake/' " or fraud, gross error, or mis-^
take/' ^ or " unless fraud or mistake is alleged and proved," ' or " fraud
or intentional misconduct,"" /'corruption, partiality, or misconduct,""
or " misbehavior," " or " misconduct or prejudice," " or " fraud, partiality,
or willful misconduct," " or " unless unfair conduct be alleged and
'Hudson V. McCartney, 33 Wis. 331
[1873]; Baasen v. Behr, 7 Wis. 516.
2 Fauuce v. Burke, 16 Pa. St. 469; Adams
v. The Mayor, 4 Duer (N. Y.) 295 [1855];
Denver, 8. P. & P. Ry. Co. v. Riley, 7
Colo. 494 [1884], and see % i^o\o. 301; also
D. «& N. O. Const'n Co. i). Sloul, 8 Colo.
61 [18841; and Sewer Comuirs. v. Sullivan
(Sup.), 42 N. Y. Supp. 358.
3Mundyt). Louisville & N. R. Co., 67
Fed. Rep. 633; Zimmerman v. German
Church, 31 N. Y. Supp. 845; Palmer v.
Clark, 106 Mass. 373; Guthal v. Gow
(Mich.), 55 N. W. Rep. 442; Sharpe v. Sau
Paulo Ry. Co., L. R. 8,Ch. Aop. 597 [1873];
Butler v. Tucker, 34 Wend. 449 ; Wyckoff
r. Meyers, 44 N. Y. 143; Byron v. Low,
109 N. Y. 291; Phelan v. Mayor, 119 N.Y.
86;;D. &H. Canal Co. v. Penua. Canal Co.,
50 N. Y. 266; Messuer v. Lancaster Co., 23
Pa. St. 291 : Dorwin v. Westbrook, 86 Hun
(N. Y.), 363; Darnell i;. Keller (Ind. App.),
45 N. E. Rep. 676; Zaleskie v. Clark. 44
Conn. 218; Gibson v. Cranage, 39 Mich. 219;
but see Leech •». Caldwell, Leg. Int. Nov.
16, 1866.
4 Ross «. Mc Arthur (Ia.\ 52 N. W. Rep.
125.
sBrnduer «. Roffsell (N. J.), 29 Atl.
Rep 317 [1894] ; s. c , 31 Atl. Rep. 387.
6 Kidwell v. B. & O. R. Co. (Va.), 11
Gratt. 676; Edwards v. Louisa Co, (la.), 56
N. W. Rep. 656; Brady v. New York (N.
Y. App.), 30 N. E. Rep. 757; Sheffield,
etc., Co. v. Gordon. 151 U. S. 285; other
cases in 29 Amer. & Eng. Ency. Law 940.
'' Lewis «. Chicago, etc., R. Co., 49 Fed.
Rep 708-714. Wood v. Chicago S. F. &
C. R. Co.. 39 Fed. Rep. 52.
8 Taylor v. Reiin, 79 HI. 181 [1875]; Coe/
«. Lehman, 79 111. 173 [1875]; Baasen v.
Baehr, 7 Wis. 517 [1859]; Leonard d.
House, 15 Ga. 473; Jeob v. McKiernan,
Moodv & Malk 340; Reynolds v. Cald-
well. 51 Me. 298; Prest., etc., Canal Co. v.
Pa. C. Co.. 50 N- Y., 250; Korf v. Lull,
70 111. 420; Downey v. O'Donnell, 86 111.
49: s c, 92 111. 559; Dingley v. Green, 54
Cal. 333; Snell v. Brown. 71 111 133; Fin-
nev v. Conden, 86 111. 76; United States v.
Ellis (Ariz ), 14 Pac. Rep. 300 [1887];
Anderson v. Maislahn, 12 Daly 149;
Wyckoff V. Meyers, 44 N. Y. 145; Butler
V. Tucker, 24 Wend. (N. Y.), 449; Smith.
V. Brady, 17 N. Y. 175; Stewart «. Keteltas,
36 N. Y. 388; Glaucius v. Black, 50 N. Y.
151; Beecher «j. Shuback, 23 N. Y. Supp.
604; McAuley v. Carter, 22 111. Rep. 55
[1859]; Trustees of Canal Co. «. Lyuch^
10 111. 521; Sheffield, etc.. Coal Co. v.
Gordon, 14 Sup. Ct. Rep. 343; Barton tj»
Herman, 11 Abb. Pr. (N. S.), 378; Hender-
son Bdge. Co. V. O'Connor (Ky.), 11 S. W.
Rep. 957; accord, Tetz «. Buttertield, 54
Wis. 242; Crumlish -y. Wilmington & W.
R. Co., 5 Del. Ch. 270 [1879]; Classen v,
Davidson, 57 111. App. 106; Moore v. Kerr,
65 Cal. 519;Chapman v. Kansas Citv, etc. ,R.
Co., 114 Mo. 542; Fowler v. Deakman, 84
111. 130; Badger «. Kerber, 61 111. 328; ac-
cord. Summers v. Chicago, etc., R. Co.. 49
Fed. Rep. 714; Robinson «. Fiske, 25 Me.
401; Oakes «. Moore, 24 Me. 214; Green v.
Jackson, 66 Ga. 250; Thurber i>. Ryan, 12
Kans. 453; Bryant. B.U (Comp. PI.), 10
N. Y. Supp. 693; Patterson v. Crowther,
70 Md. 124; Bd. of Ed. v. Shaw, 15 Kans.
33.
The fraud or mistake need only be
shown by a preponderance of the evidence.
B. & O. & C. R. Co. -0. Scholes (Ind), 43
N. E. Rep. 156.
9 B. & O. R. R. Co. V. Polly Woods, 14
Gratt. 448 [1858]; Scott v. Corp'n of Lon-
don, 1 Gifford 216 [1858].
10 Boston W. P. Co. -y. Gray, 6 Met. 16»
[1843]; Hostetter ®. City of Pittsburg, 107
Pa. St. 419 [1884]; McKinnis v. Freeman,
38 Iowa 364 [1874]; Sweet v. Morrison,
116 N. Y. 19 [1889]; Kirk v. Th- E & W.
India Dock Co., 55 L. T. R. (N. S.) 245
[1886]; O'Brien v. Mayor of N. Y., 139 N.
Y. 543.
» Smith «. Smith, 28 111. 56 [1862].
'2 Combe v. Schulters, N. Y. Com. Pleas,
Dec. 1871; accord, Bufkwalter v. Russell
(Pa.), 13 Atl. Rep. 310 [1888]; Sewer
Commrs. v. Sullivan (Sup.), 42 N. Y.
Supp. 358.
13 Anderson v. Imlioff (Neb.), 51 N. W.
Rep. 854 [1892]; citing Raud v, Redington,.
13 N. H. 72; Torrence v. Amsden, 3 Mc
§ 428.]
CONTRA CT 8 TIP ULA TI0N8.
369
proved,"' or "that the engineer was guilty of unfairness or partiality,"'
or "that the engineer's estimate was not fairly made,"' or "not fairly
and impartially made,"* or " unfairness or fraud," ' or " failure to exercise
an honest judgment,"' or "unless it is arbitrary or dishonestly with-
held,"' or ''capriciously or fraudulently,"' or "arbitrarily, capriciously,
and unreasonably," 9 or "wrongfully, arbitrarily, and in bad faith," '" or
" fraud and bad faith,"" or in the absence of " dishonesty, fraud, or sinister
motive,"*' "dishonest or arbitrary action,"'^ or of "accident, fraud, or
mistake or illegality,"'* or "in the absence of collusion,"'^ or "in the
absence of fraud or collusion." "
Allegations, charges, or evidence tending to prove that "the engineer
erred in deciding questions submitted to him,"" or "that his estimate is
erroneous and too low," " or " that the engineer knew his award to be
grossly unjust when he made it, that he was hostile to the contractor, and
was receiving a salary from the city," " or " that he had notice that the
work was not done according to contract, and refused to take notice of the
information," " or "that the engineer has ignored all contracts and written
evidence of the contractor, that he has accepted as true the loose and false
statements of the adverse party, that he examined no witnesses under oath,
and that the award is full of mistakes,"" or "that the estimates were less
Lean 509; Smith v. Cooley, 5 Daly 401;
Newland v. Douglass, 2 Johns. 61; Under-
liill ®. Van Cortlandt, 2 Johns. Ch. 339;
Lee «. Patillo, 4 Leigh 436; Flahaity v.
Beatty, 23 W. Ya. 698; Dickinson v. R.
Co., 7 W. Va. 890: Spear -». Bidwell, 44
Pa. St. 23; PjiuI « Cunningham, 9 Pa. St.
106: Emerson v. Udall. 13 Vt. 477; Eaton
«. Eaton. 8 Ired. Eq. 102; Hyerouimus «.
Allison, 52 Mo. 102; Conrad "«. Ins. Co., 4
Allen 120, Strong v. Strong, .9 Cusli. 560;
Brown v. Bellows, 4 Pick. (Mass.). 179;
Bean -». Macomber, 33 Micli. 127; Sisk v.
Garey. 27 Md. 401; Cleland v. Hedly, 5
R. I. 163; Ba.sh v. Christian, 77 Ind. 290;
Cothran t\ Kuox. 13 S. C. 496; and see 1
Amer. & Eug. Ency. Law 707, and cases
cited
iPawley v. TurnbuU, 3 Gifford 70
[1861].
» Ormes v. Beadle, 2 Giff. 166. 206 [I860].
» Smith «. B. C. & M. Ry., 36 N. H.
459, and cases cited.
* Ormes «. Beadle, supi'a.
^B. & O. R. Co. V. Polly Woods, 14
Gratt. 448 [1858]: B. & O. R. Co. v. Laf-
fertys, 14 Gvatt. 478; Reiis«. Grand Rapids
(Mich ). 41 N. W. Rfep. 263 [1889].
«M. & P. Ry. Co. «. March, 114 U. S.
649
' Bently v. Davidson, 74 Wis. 420 [1889].
•Badger v. Kerber, 61 111. 328 [1871];
Fowler v. Deakman, 84 111. 130.
^ Chnpman v. Lowell, 4 Cush 587; N.
Y. & N. H. Sprinkler Co. v. Andrews, 23
N. Y. Supp. 998.
10 Fletcher v. N. O. & K E. R. Co., 19
Fed. Rep. 731 [1884].
" Guthal V. Gow, 55 N. W. Rep. 442.
12 Sharpe v. San Paulo R. Co., 8 Chanc.
App. 606.
" Wendt V. Vogel. 87 Wis. 462.
i^Atlanla, etc., R. Co. . Manghan, 49
Ga. 266 [1873].
15 Johnson v. White (Tex.), 27 S. W.
Rep. 174/ see also M'lutosh v. Gt. West-
ern Ity., 14 Jur. 819.
i«Hanley®. Wa:ker (Mich.), 45 N. W.
Rep 57; Anderson v. Imhoff (Neb.), 51
N. W. Rep. 854 [1892] ; accord. Vermont
St. M. E. Church «. Brose, 104 111. 206;
and see Scott v. Liverpool, 3 De G. & J.
334; Bliss v. Smiih, 34 Beav. 508.
1^ Whiteman v. Mayor, 21 Hun 117
[1880] ; Perkins «. Giles, 50 N. Y. 228.
18 Baasen v. Behr, 7 Wis. 516 [1859], and
cafes cited ; Hot Springs Ry. Co. v. Maher,
48 Ark. 522.
19 Hartupee v. City of Pittsburg, 107 Pa
St. 419 [1884].
20 Darnell «. Keller (Ind. App ).45 K E..
Rep 676,
21 Th'-rnton v. McCormick (la.), 39 N..
W. Rep. 502 [1888].
370 ENGINEERING AND AlWHITECTURAL JURISPRUDENCE. [§ 429.
than the actual work done, by mistake, or that they were intentionally made
;S0," ^ or " that the estimates were erroneous and too low," * or " that the
award is excessive," * or " that the court or either party disagrees with the
architect," * are not sufficient to avoid the engineer's estimates or to excuse
the production of his certificate.^ Yet each of these conditions may be con-
sidered in determining the bias, prejudice, dishonesty, or fraud of an engi-
neer or architect; and while perhaps no one of the allegations" cited would
l)e sufficient to avoid an engineer's estimate, yet a combination of circum-
stances similar to those cited might be very strong evidence of fraud if the
case were allowed to go to a jury. The inadequacy of an award may be
x3onsidered in determining the bias of an arbitrator.®
Therefore, where the contract provided that if any discrepancies should
1)0 found to exist between the plans, working drawings, and specifications,
the decision of the architects as to their meaning should be final, the fact
that the architects drew the plans and specifications, and were to receive as
their compensation five per cent of the total cost of the building, does not
warrant an inference of fraud in their decision as to discrepancies found to
«xist/
429. Mistake of Engineer in his Decision or Estimate an Element of
Trand. — Another ground upon which the estimates and certificates of an
•engineer are sometimes attacked is that of mistake, and there are many
• dicta to the effect that it is sufficient excuse to avoid the engineer's esti-
mates and decisions, but cases in which recovery has been given for mistake
pure and simple are not to be found in the books. The ground or theory
upon which relief is promised in case of mistake is usually the same as for
fraud, and many cases hold that the mistake must be so gross as to imply
iraud or dishonesty.^* In the language of the United States courts, which
lias been quoted and followed in many cases in the state courts, "the deci-
;sions of the engineer are conclusive in the absence of fraud or such gross
anistake as would necessarily imply bad faith or a failure to exercise an
iionest judgment;' and in the supreme court of Arkansas it was held an
terror for a judge to instruct that the engineer's estimates were not binding
if there were mistakes in them, the supreme court holding that the errors
' Baker t>. Belknap, etc., 27 Vt. 700. ' Kelly v. Public Schools of Muskegon
^ Baasen v. Baehr, 7 Wis. 516 [1859], (Mich.), 68 N. W. Rep. 282
<:iUng many cases. ^ Sweeney v. United States, 109 U. S.
» B. & O. R. R. «. Canton Co..70Md. 405 618 [1883] ; Kehlberg v. United States, 97
4 Phoenix Iron Co. d. The Richmond, 6 U. S. 398 [1878]; Martinsburg & Pac. R.
IVIackey's R 180; Gilmore «. Courtney Co. ■». March, 114 U. S. 549; Hot Springs
<I11.). 41 N. E. Rep. 1023. Ry. Co. v. Maher, 48 Ark. 522: Hartford
* But see Davidson •». Provost, 35 111. F. L. Co. «. Bonner Mer. Co., 56 Fed. Rep.
App. 126 ; anci Johnson ^. White (Tex.), 378; Palmer v. Clark, 106 Mass. 373;
-21 S. W. Rep. 174 [1894]; and Glaucus v. Montgomery v. New York, 29 N. Y. Supp.
Black, 50 N. Y. 145. 687.
* Royal Ins. Co. v. Parlin & O. Co. ^ Monon Nav. Co. «?. Fenlon, 4 Watts &
<Tex.), 34 S. W. Rep. 401. Sergeant 205 [1842].
* See Cases Sec. 428, supra.
§ 429.] CONTRACT STIPULATIONS. 371
or mistakes must be so gross or of such a nature as to necessarily imply bad
faith on the part of the engineer/ and averments that the engineer's esti-
mates "were erroneous and too low," or " were only about one-half what
they should have been,"^ or "were less than the measurement of the work
actually done/' ^ or the fact that they were " excessive/' * or that in other
places excavations of similar materials and of the same character had been
classified differently/ is not sufficient to imply fraud or bad faith, or to
prevent a recovery of more than the amount of the estimate." The engi-
neer's estimate is conclusive upon questions of count, measurement, or dis-
tance, even though these questions are capable of accurate measurement/
In the absence of fraud or misbehavior the courts will not inquire whether
the award of arbitrators is warranted by the evidence submitted/
What is required, is, that the engineer shall have exercised an honest
judgment. That is what the parties contracted with regard to, and only
that will fulfil the implied, if not the express, conditions of their contract.
The decisions are unanimous that "estimates are conclusive when an honest
discretion has been exercised and no fraud appears," ° or that "an engineer's
certificate cannot be impeached for mere errors of judgment, but only for
fraud or such mistakes as show that he failed to exercise his judgment on
the subject-matter." ^° If he has exercised an honest discretion and decided
according to his best judgment, the fact that he has erred," or that his esti-
mate is too low," or is inadequate and unjust," or that the engineer disagrees
with the court," or "that in the opinion of others his decision is erro-
neous/' ^* or that he was not qualified,'' or "that mistakes have arisen from
inadvertence and undue haste/'" or "that because his hearing was defective
he did not hear and understand the evidence offered," '* will furnish no
excuse for the non-production of the estimate or certificate when they have
been made a condition precedent by the terms of the contract.
» Hot Springs Ry. Co. v. Maher, 48 Ark. kins v. Giles, 50 N. Y. 228; Crumlish v.
522. Wilmington, etc., II. Co., 5 Del. Ch. 270
2 Ripley Co. v. Hill (Ind.), 16 N. E. Rep. [1879]; and see Moore ®. Jones (Tex.). 25
156 [18881. S. W. Rep. 98; Russell v. Seery (Kans.),
3 Suell -». Brown, 71 111. 133 [1873]; ac- 35 Pac. Rep. 812; Chicago, etc., R. Co. «.
cm-d, McCoy t). Able (Ind.), 31 N. E. Rep. Price, 138 U. S. 185.
453. " Whitemau v. Mayor, etc., 21 Hun IIT
4 Hartford F. L. Co. ®. Bonner Mer. Co., [1880].
56 Fed. Rep. 378. " Baasen v. Baehr, supra.
6 Dorwin « Westbrook, 86 Hun (N. Y.) " Hartupee v. City of Pittsburgh, 131
363. Pa. St. 535 [1889].
6 Baasen «. Baehr, 7 Wis. 516 [1859]; B. " Phoenix Iron Co. i). The Richmond, 6
6 O. R. R. Co. ■». Canton, supra; see Gil- Mackey's R. 180.
more «. Courtney (HI.), 41 N E. Rep. 1023. '^ Gillraore i). Courtney (111.). 41 N. E.
■"Elliotts. M.K.&T. Ry. Co. (C.C. A.), Rep. 1023; Zimmerman v. Germ. Luth.
74 Fed. Rep. 707. Ch., 11 Misc Rep. (N. Y. Super. Ct.) 49.
8 Huckestein v. Kaufman (Pa.), 33 Atl. i« Pauly Jail Co. ■». Hemphill County, 63'-
Rep. 1028; sernhle. Bank «. Webb (Ky.), Fed. Rep. 698
33 S. >7. Rep. 1109. '' Patton v. Garrett (N. C), 21 S. E. Rep:.
9 Mitchel V. Cavanaugh, 38 Iowa 286 679.
[1874], citing many cases; Baasen v. Baehr, '^ McMillan v. Allen (Ga.), 25 S. E. Rep.
7 Wis. 516, and cases cited. 505.
" Palmer v. Clark, 106 Mass. 373; Per-
372 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 430.
430. If Engineer has Acted Honestly and has Exercised his Best Judg-
ment, His Decision will Hold. — To ignore the engineer's estimate and accept
.any other proof of the completion of the work, or of the materials or quan-
tities employed, would require the court to make for the parties a contract
which they themselves did not choose to make. For when neither party
has reserved the right to review and revise the engineer's determination for
mere errors or mistakes upon his part, it is presumed that both parties had
in mind the possibility that the engineer might err, but that they chose to
risk ins estimates and to rely upon his judgments, depending upon the right
to demand that the engineer shall at all times and in respect of every matter
submitted to his determination exercise an 'honest judgment, and commit
no such mistakes as under all the circumstances would imply bad faith.**
It was "-.herefore held wrong and an error for a judge to instruct a jury
that if they found the price and value fixed and returned .by the engineer
was inadequate and unjust to the contractor, they rtiight presume fraud and
disregard the prices fixed by the engineer;' and by the same precept in-
structions that mistakes in an engineer's estimate as to the amount and
character of work done would render them not binding, were held to mis-
lead the jury and to be sufficient cause to remand the case for a new trial.'
If no fraud nor gross mistake that will necessarily impute fraud can be
proven, and the engineer refuses his certificate of completion or underesti-
mates the work or materials, it would seem by these cases that no recovery
can be had on the contract.* As to recovery on a quantum meruit, it is a
question.^ The engineer's determination is like an award of an arbitrator,
and cannot be set aside for mistakes. Whether the measurements and pro-
ceedings of the engineer are fraudulent are for the court and jury to deter-
mine. The only question open is whether the engineer has acted honestly
and in the usual way. If he has, his decisions are conclusive whether he
has made mistakes or not, and whether the mistakes are on one side or on
the other side.' The fact that the engineer has failed to decide according
to his best judgment, but has been prevailed upon to decide otherwise by
his employer, has been held not sufficient proof of fraud when the engineer
has allowed all that the contract authorized. ''
431. Few Cases in which Courts have Allowed a Recovery on Account
of a Pure Mistake. — All the courts have not employed the same technical
» Martinsburg & P. R. Co. v. March, 114 618 [1883].
XJ. S. 549; Elliott, i). M. K. & T. Ry. Co., » gg^ Cummings v. Bradford (Ky.), 22 S.
74 Fed. Rep 707; United States v. N. W. Rep. 548 ; recovery was allowed. And
Amer. Com. Co. (C. C), 74 Fed. Rep. 145 ; see also Anderson v. Burchet, 29 Pac. Rep.
and see Dallam v. Kin^, 4 Bing. N. C. 105. 315, where incompetency was claimed, but
2 Martinsburg & P. R. Co. v. March, 114 held to have waived right to object. And
U. S. 549; see Cooper «. Uttoxeter Bur. seo Norfolk «fe W. R. Co. v. Mills (Va.), 23
Bd , 11 L. T. (N. S.) 565. S. E. Rep. 556.
3 Hot Springs Ry. Co. v. Maher, 48 Ark. « Palmer v. Clark, 106 Mass. 378; Snell
522. v. Brown, 71 111 133 [1873].
4 Sweeney v. United Slates, 109 U. S. ' O'Brien v. New York, 139 N. Y. 543.
§ 4B2.] CONTRACT STIPULATIONS. 373
phniseology in deciding what sort of a mistake will avoid an engineer's esti-
jnate or excuse the production of his certificate. The courts employ differ-
•ent language when deciding what may avoid the estimate and what luill
permit a recovery from what they use in stating conditions that will not
avoid the determinations of the engineer, or in specifying such conditions
only as will permit a recovery without the estimate. Thus dicta by courts
that " unless fraud or mistake or undue influence or want of good faith are
proved," * or "unless in case of mistake, fraud, or gross error," ' or "in the
absence of proof of frawd, mistake, or unfair dealing," ' the determination
-of the engineer is final and conclusive is not a statement of the converse,
that in case there is a mistake his estimates and decisions will not be con-
clusive. Such a conclusion would be dangerous, and it is the taking of
such rules for granted that brings so many cases into the lower courts to be
•corrected by the higher courts.
432. Fraud or a Failure to Exorcise a Fair and Sound Judgment, Alone
will Dispense with Certificate. — There must be fraud or a failure on the
part of the engineer to exercise his judgment. It must be shown that the
■engineer has failed to exercise a fair and sound Judgment in making his
■estimate or certificate.* If he has exercised an honest discretion,'^ his cer-
tificate cannot be impeached for any errors of judgement, whether of fact
•or fancy." If mistake alone is sufficient to dispense with the certificate, it
must be such a mistake as has prevented the exercise of an honest judg-
ment.'
A mistake alone is not conclusive evidence of fraud, but an apparent
•error may be evidence, of. greater or less weight, according to the circum-
.stances, in support of fraud or partiality.* The fact that more work was
•done than the certificate gives credit for does not raise a presumption of
fraud, though it may be shown as a circumstance tending in some degree
to establish fraud. To prove fraud the evidence must show that the
engineer knowingly and willfully disregarded his duty, and rejected or con-
demned work which he knew, or at least should have known, fully con-
formed in all respects to the contract.' Another court says the mistake
must be an unintentional misapprehension, or ignorance of some material
» Mansfield, etc., Ry. Co. v. Veeder, 17 werker ^.V. C. Ry. Co., 27 Vt. 130 [18541;
Ohio 385; United States ^. Ellis (Ariz.), 14 Sweeny v. United States, 97 U. S. 402;
Pac. Rep. 300 [1887]; Downey v. O'Don- Crumlish v. Wilmington & W. R. Co.,
iiell. 92 111. 559. 5 Del. Ch. 270 [1897] ; Palmer «. Clark,
2 Wood V. Chicago, etc., R. Co., 39 Fed. 106 Mass 373; Trustees of I. & M. Canal
Rep. 52. ■». Lynch, 10 111. 521; Lewis v. Chicago,
3Tetz«. Butterfield, 54 Wis. 242 [1882]; etc., Ry. Co., 49 Fed. Rep. 708; Camp-
Kidwell V. B. & O. R. Co., 11 Gratt. 675. bell o. Weston, 3 Paige 124 [1832].
4 Palmers. Clark, 106 Mass. 373. ^Goddard v. King (Minn.), 41 N. W.
6 Mitchel V. Cavauaugh, 38 Iowa 286 Rep. 659 [1889].
[1874]. ^suell V. Brown, 71 111. 133 [1873]; see
«Perkins«. Giles, 50 KY. 228; Snell ?). also Stose v. Heisler, 120 111. 439, and
Brown, 71 111. 133 [1873] Palmer v. Clark, 106 Mass. 373.
' Baasen v. Baehr, 7 Wis. 516; Vauder-
H74 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 433^
fact, which must be clearly shown, and be so palpable as to amount to dis~
honest and arbitrary action.' The burden of proving the mistake, or of dis-
proving the correctness of the engineer's estimate, is on the contractor, who
may deny its accuracy."
433. Mistake alone May Be a Cause for Correcting an Estimate, or for
Requiring a New One to be Made — Mistake that will Set Aside the Engi-
neer's Determination Defined. — It having been agreed to submit to the
judgment of a skilled arbitrator or engineer the question whether the work
conforms to the contract, neither party can avoid his decision if he has;
exercised his discretion, nor can the judgment of a jury be substituted.
They contracted for the fair and honest judgment of a particular person, or
class of persons, and if that has been had and exercised according to their
intentions, they cannot alter its obligations or escape its hardships.' The-
mistake must therefore be one which shows that the engineer has been mis-
led, deluded, or so far misapprehended the case or questions to be deter-
mined that the parties have not received the benefit of his skill and judg-
ment,* with reference to which they have contracted. The most familiar
illustration is the use of a false measure, or of a false weight, believing them,
to be correct.
It is obvious that to allow every mistake in fact to avoid an engineer's-
decisions, if clearly proved, would be in effect to examine the original con-
troversy upon its merits, and thus render such stipulations nugatory. For
that reason it has been held that no mistakes in matters of fact depending
upon the misjudgment of the engineer, whether in weighing evidence, or
the construction of contracts, or written admissions, were of any avail.* The
earlier cases went so far as to hold that the estimate was not effected by the
inadequacy of the amount or the neglect of the engineer to employ the usual
and proper means of informing himself upon the subject, provided his con-
duct was in good faith, a fact to be submitted to the jury, and that [gross}
negligence did not, in the construction of the law, amount to fraud or the
want of good faith." Neither can avoid the engineer's decision by showing-
merely that he was negligent and made mistakes.'
The decision, to be conclusive, must be a result of the deliberate and fair
judgment of the engineer. To avoid its binding effect the mistake must be
in a matter of fact by which the engineer is led to a false conclusion, a mis-
take in some fact, inadvertently assumed and believed, which can be shown
to be otherwise. Such would be the use of a false measure, as a tape or
1 Wendt V. Vogel, 87 Wis. 462. « Vanderwerker v. V. C. R. Co., 27 Vr.
2 Piicci i\ Barusey (City Ct.), 20 N. Y. 130 ; 2 Amer. & Eng. Eiicy. Law (2d.
Supp.375:s.c..21N. Y.Supp. 1099;an(Z«ee Ed.) 779.
Wiiz V. Tregallas (Md.), 33 Atl. Rep. 718. « Wilson v. York & M. L. R. Co.. 11
3 Hudson V. McCartney, 33 Wis. 331. Gill & J. 58 [1839]; citing /D. & H. Canal
*Rolo8on V. Carson, 8 Md. 208 [1855]; Co. v. Dubois, 15 Wend. 90.
May V. Miller, 59 Vt. 577; Boston W. P. ^ Bowman «. Stewart (Pa.). 30 Atl. Rep.
Co. V. Gray, 6 Met. 169 [1843]; Newlan v. 988; see also Stubbins v. McGregor (Wis.)^
Dunham, 60 111. 233. 56 N. W. Rep. 641.
§ 433.] CONTRACT STIPULATIONS. 375
chain, believing it to be correct, or the use of diagrams or tables that are
erroneous. Another illustration would be the use of a compass to ascertain
bearings, the needle of which had by some accident, or by fraud, been dis-
turbed so that its action was not free and natural, and which circumstance
was wholly unknown to the surveyor. It is not a fact or an inference of fact
upon which any judgment has been exercised, but a pure mistake, by which
the surveyor's judgment, as well as the needle, had been swerved from the
true direction which it would have taken had it followed the true law under-
stood to govern it. The mistake must be of a fact upon which the judgment
has not passed as a part of his judicial investigation; one of such a nature
and so proved as would lead to a reasonable belief that he was misled and
deceived by it, and that if he had known the truth he would have come to a
different result.*
The theory cannot be better explained than by Justice Shaw's own
•words and illustrations, viz.: "That courts will not set aside an award for
mistakes of the arbitrator [or engineer] where the facts were before him and
he was competent to judge. The mistake or accident therefore must be of
some fact which deceived and misled the arbitrator [or engineer], and not a
mistake in drawing conclusions of fact from evidence or observation, or
mistake in adopting erroneous rules of law or theories of philosophy.
Suppose, for instance, it were referred to an arbitrator [or engineer] to
measure a large area, where it was necessary to run lines through woods
by the aid of compass, and suppose that through fraud or accident the
regular action of the needle of the compass was disturbed by the presence
of a piece of steel,' and this was wholly unknown to the arbitrator
[engineer], who was thus led to adopt false courses as true ones as the basis
of his computations." If this fact could have been afterwards proved, the
court thought it would be good grounds to set aside the award. ^' But,'*
continued the justice, *4f the arbitrator [or engineer] had adopted a theory
of magnetism in regard to the actual variations of the needle, alleged to be
erroneous and leading to the adoption of a similar erroneous series of
courses, although it should be pronounced erroneous by other philosophers,
conversant with all that is known of the science of magnetism, whatever
might be their number or weight of authority, it could not be heard by a
court and jury, because it would not tend to prove the kind of error or
mistake which had misled the constituted judge in the case, but would be
an appeal from his decision in a case where he has exercised his judgment.
"So, to put another instance, suppose in making mathematical com-
putations the engineer has used a table of logarithms, believing them to be
correct, which are afterwards shown to be erroneous ; it would be a mis-
' Boston Water Power Co. v. Gray, 6 ^ Query if the effect of the surveyor's
Met. 169 [1843]; Vandewerker -». V. C. liy. steel spectacles or the steel rim of his
Co.. 27 Vt. 130 [1854]; Roloson v. Carson, derby hat would be a ground for attacking
8 Md. 208 [1855]; Palmer v. Clark, 106 his estimates or decision.
Mass. 373.
376 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 434
take that misled him. But, if he has purposely and deliberately adopted a
process of mathematical reasoning which he believed to be correct, his
award or estimates could not be impugned by the testimony of other
mathematicians tending to show it was erroneous." *
In an earlier Vermont case the same rules are laid down: "That
reports of referees will be set aside only when they have adopted a rule of'
action and misapplied it, and it is immaterial whether it be a rule of law, or
of equity, or of arithmetic, circumstantial errors are not sufficient to avoid
their decisions '
434. A Pure Mistake does not Render Award or Estimate Void, but Sub-
ject to Correction. — Errors in awards or estimates due to a mistake in com-
putations, and which can be made certain by mathematical calculations, do
not render the award or estimate void,** nor do mistakes in charging interest
furnish a ground for a court of equity to interfere,* for an award cannot be
attacked on the ground of an error in computing the amount found due.*
An error of ten (10) feet in the height of a "bench mark " on the line of a
railroad, by which erroneous "bench" the excavations had been computed,
was held to be such a mistake in the engineer's estimates as a court of
equity would correct and relieve against.*
Another case has held that a court would relieve from an oversight to
measure or estimate a particular part of the work, or from a wrong con-
struction put upon the provisions of the contract by the engineer.^ The
cases in which a contractor has been allowed to recover more than the
amount of the engineer's estimate or has been excused from the production
of the engineer's certificate on the ground of mistake are extremely rare.
Thousands of cases mention mistake as one of the things that will avoid
his decisions, but the cases where actual recover has been had are rare
indeed.
435. Cases where Contractor has Recovered for Extra Work Required
by Reason of Engineer's Mistakes.* — The following cases come the nearest
to such a decision, but as will be seen, other circumstances enter into the
cases. In Indiana it has been held that a finding by the jury that in many
instances the estimates were incorrect owing to the negligence, carelessness,
incompetency, and mistakes of the company's engineers was entirely sufficient
to entitle the contractors to recover what was due them, notwithstanding
such estimates."
• Justice Shaw, in Boston Water Power see Swifts. New York, 89 N. Y. 52 ; Lewis
Co. v Gray. 6 Met. 169 [1848]. See also v. Chicago, etc., Ry. Co., 49 Fed. Rep. 708.
Goddard «. King (Minn.), 41 N. W. Rep. ''Lewis v. Chicago, etc., liy. Co., 49
659 [1889]. Feb. Rep 708; accord O'Brien v. New
« Learned v. Bellows. 8 Vt. 79 [1836]. Yorli N. Y. (App.), 35 N. E. Rep 323. 139
3 Clement v. Foster, 69 Me. 318 [1879J. N. Y. 543.
* 3 Jones Eq. 462. ^ Louisville E. & St. L. Ry. Co. v Don-
"May^ Miller, 59 Vt. 577. negan (Ind.), 12 N. E. Rep. 153 [1887];
« Herrick v. Belknap, 27 Vt. 673 ; and citing 102 Ind. 262 and 104 Ind. 133 ; but
* See Sec. 587, infra.
§ 435.] CONTRACT STIPULATIONS. 377
If the architect who is to superintendent and direct the work and who
is made the arbitrator as to its proper performance, delay the contractor
unreasonably in his work for the benefit of the owner or other contractors,
and by allowing other contractors to obstruct the work renders it necessary
for the contractor to do it in an unusual manner, which adds largely to its
cost, the owner will be liable to the contractor for the loss resulting/
An early New York case is authority for the following dictum: That if
a contractor is required by his contract to work under the direction and
constant supervision of the company's engineer, to follow his lines and
levels, and the engineer makes a mistake or by error is misled so that work
is done that is unnecessary and unexpected, it would work great hard-
ship on the contractor if he could not recover for such extra work because
the engineer refused to include it in his estimate. For example, in a tunnel
where the work is to be so executed as to conform to the lines and levels
and sections of the engineer and under his direction, supervision, and con-
trol, it cannot be disputed that the contractor is entitled to rely upon the
engineer's surveys. If the lines and levels of the company's engineer are
incorrect, the loss ought not to fall upon the contractor, but upon the com-
pany whose agent he is.* "It cannot," said the court, "be argued that the
engineer is the agent of the contractor as well as of the company." The
engineer is the special agent of the company, whose directions the con-
tractor is bound to follow and obey. The engineer's science, skill, and
training are supposed to furnish safe guides to the contractor. He cannot
safely question the correctness of the engineer's operations or measurements,
and when a clause is inserted in the contract "that if in any event or from
any oversight or other cause the contractor shall excavate any greater
quantity than he has undertaken by this agreement, without the written
consent, etc.," it must be construed to mean that if in any case the con-
tractor, by oversight neglecting the instruction of the engineer or working
without them or other like cause, makes a greater excavation than is called
for by the contract, he shall bear the loss. It cannot properly be called an
oversight if the contractor is led astray by the erroneous working directions
of the engineer.'
A city has been held liable for extra work on a public improvement
which was made necessary by the mistake of the city engineer/ Such a
case might be sustained under the term "gross mistake," as distinguished
^ee comments by the court on the loose N. Y. Supp. 94 ; but see Murphy v. Liberty
«nd confused mass of evidence, which the Natl. Bk. (Pa. Sup.), 36 Atl. Rep. 283.
Supreme Court declined to search through There can be no recovery in such a case if
for errors on appeal. the terms of the act authorizing the work
' Genovese v. Third Ave. R. Co. (Sup.), expressly limit the liability of the city to
43 N. Y. Supp. 8. the contract price : O'Brien v. Mayor, 15
2 Seymour v. Long Dock Co., 20 N. J. N. Y. Supp. 520 [1851]; s. c. 139 K Y.
Eq. 396. 543. 142 N". Y. 671.
' McCann v. City of Albany (Sup.), 42
* But see Sees. 236-242, supra.
378 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 436.
from the ordinary mistakes that may creep into computations of earth-
works or that result from the ordinary operations of engineering in the field
or the office. Although the element of fraud is not brought out, there is
no question if such rank injustice on the part of the engineer as to require
the contractor to meet the expenses attending his errors in his calculations
would not be sufficient evidence of fraud and bad faith to come within tha
regular rule.*
This was piade the ground of a recent decision under a contract for the-
excavation of a tunnel, which provided that the compensation should be
$1.75 per cubic yard, unless a coal vein running through the tunnel was, in.
any section of the tunnel, less than four feet wide, in which case the com-
pensation should be $3.50, and which also provided that payments should
be made monthly on estimates of the company's engineer, whose decision
should be final. It was held that the mistake of the engineer in allowing
only $1.75 per cubic yard of excavation in sections where the vein of coal
entirely disappeared, was such a violation of the contract as to amount to a
fraud, and that consequently his finding and estimate were not conclusive.*
436. Decision of Engineer When he Has Made a Mistake of Law. — It is
sometimes popularly stated that a mistake as to a question of law will be cor-
rected by the courts. There is a little ground for this assertion. If no
reservation is made in the submission of questions to tlie referee [engineer],
the parties are presumed to agree that everything as to law and fact neces-
sary for the decision is included in the reference. Under a general submis-
sion the referees have rightfully the power to decide questions of law and
those of fact, and they are not bound to award on dry principles of law, but
they may award according to equity and good conscience.*
A general submission constitutes the arbitrator a final judge of questions
of law and fact,* and his award cannot be set aside for mere errors of judg-
ment as to the law or facts of the case submitted to him.*
The settlement of controversies by arbitration is looked upon with great
favor by the courts, and ordinarily, if the award be within the power of the
arbitrators and unaffected by fraud, mistake, or irregularity, the judge has
no power over it, except to make it a rule of the court and enforce it accord-
ing to the course of the court. " The referees are a law unto themselves,,
and may decide according to their own notions of justice and without giv-
1 Louisville E. & St. L. R Co. v. Don-
negau (Ind.), Ill Ind. 179.
2 Norfolk & W. R. Co. v. Mills (Va.),
22 S. E. Rep. 556.
3 Klein t). Catara, 2 Gallison C. C. 61
[1814] ; Kirk & Randall v. The E. & W.
India Dock Co., 55 L. T. Rep. (N. S.) 245
[1886] ; Morse on Arbitration 296: Hall -».
Norwalk F. Ins. Co. (Conn.) 17 Atl. Rep.
856.
* Morse onJArbitration 296 ; contra Jen-
nings V. Gray, 29 Iowa 537.
sMasury v. Wliiton, 111 N. Y. 679
[1888] ; Hall v. Norwiilk F.I. Co. (Conn.),
17 Atl. Rep. 856: Kirk & Randall v. E. &
W. India Dock Co.. 55 L. T. Rep. (N. S.>
245 [1886] ; Sweet v. Morrison, 116 N. Y.
19 [1889]; Porter v. Buckfield R. R.. 3^
Me. 559 ; Perkins v. Giles, 50 N. Y. 228 ;
and see 15 111. 72, 412, 461 ; semble B3ron
V. Low. 109 N Y. 291; Phelan v. Mi.yor,
119 N. Y. 86 ; D. & H. Canal Co. r. Penna.
Coal Co. . 50 N. Y. 266 ; Stewan v. Grier
(Dul.)7Houst. 378.
§436.] CONTRACT STIPULATIONS. 379
ing any reasons therefor/' "Even 'where tliey decide erroneously, the
<3rror will not vitiate the award unless it appears that they intended to decide
according to law'* and failed in the attempt/
Arbitrators, referees, and engineers are not usually required to find a
statement of facts or conclusions of law. Unless their award contains (is
based upon) erroneous views of the law as a basis of the award, their deci-
sion in the absence of fraud will not be reviewed.' The mode or manner of
making an estimate or of investigating a case is not a ground for setting it
aside unless corruption or partiality is shown.^
Certainly no mistakes in matters of fact depending upon the misjudg-
ment of the engineer whether in weighing evidence or the construction of
contract or of written admissions are of any avail to avoid his award.* Mis-
takes in drawing incorrect inferences or forming erroneous judgments or
conclusions of fact will not vitiate his award. ^
If, however, a point of law be referred to the court by spreading it on the
award, and the referee mistakes the law, the award will be set aside. If he
admits the law, but decide contrary thereto upon principles of equity an'^
good conscience, although such intent appear on the face of the award, it ih
no ground to set it aside.'
When the decision of matters by the engineer is not confined to the con-
tract merely, but comprehends all matters in controversy between the parties,
thus leaving the existence of the contract, as well as its terms and construc-
tion, to be determined, and the award does not undertake to identify the
contract or construe its provisions, but simply declares that there is so mucb
due on the contract, a court has no power to modify the award so as to make
it conform to the contract, unless it clearly appears from the award that the
arbitrators intended to decide according to the legal rights of the parties,
and not according to their own ideas. '' *^ Unless the certificate itself discloses
an intention to decide according to law, such intention can be shown in no
other way.'' ^ To avoid an award on the ground of a mistake of law, the
mistake must, appear on the face of the award ; ' and even when arbitrators
are required to decide according to the strict rules of law, if the error com-
plained of is not plain, or if the point of law is doubtful, their decision will
not be interfered with on account of error in law."
•Wyatt V. Lynchburg & D. R. Co. (N. of fact was a good ground for setting aside
C), 14 S. E. Rep. 683 [1892] ; citinq, Lusk an award.
u Clayton, 70 N. C. 184 ; Jones v. Frazier, "Klein v. Catara, 2 Gallison C. C. 61
1 Hawks 379 ; Hurdle v. Stalliugs, 109 N. [1814] ; and see Kirk & Randall v. The E.
C. 6; Leach v. Harris, 69 N. C. 532. & W. India Dock Co., 12 App Cas. 738.
« Smith «. Kron(N.C.), 13 S. E. Rep. 839. ' Wyatt v. Lynchburg, etc., R. Co. (N.
3 Hartford F. L. Co. v. Bonner Mer. Co. C.) 14 S. E. Rep. 683 [1892].
66 Fed. Rep. 378. » Wyatt v. Lynchburg & D. R. Co. (N.
* Vaiiderwerker v. V. C. Ry. Co., 27 Vt. C), 14 S. E. Rep. 683 [1892] ; citing, Ryan
130 [1854]. V. Blount, 1 Dev. Eq. 382.
6Rooson V. Carson, 8 Md. 208 [1855] ; ^ Witz v. Tregallas (Md.), 33 Atl. Rep.
McCahan v. Reamy, 33 Pa. St. 535 [1859] ; 718.
but see Arnold v. Mason, 11 R. I. 238 [1877], '» School Dist. v. Sage (Wash.), 43 Pac.
where it was held that a material mistake Rep. 341.
380 ENGINEERING AND ARGHITEGTURAL JURISPRUDENGE. [§ 43Z
Where engineers and architects make a mistake, is in seeking to substan
tiate their decisions by proofs. This is not vainglory in imitation of chief
justices, but comes from the technical training which engineers undergo
from their earliest studies. As students at the blackboard, and throughout
their apprenticeship, they have had to demonstrate the truths and principles
on which they work and by which they have judged, and it is the niost
natural, and at the same time dangerous, thing to undertake, to uphold their
position in the eyes of a prejudiced and perhaps ignorant contractor, or upon
legal principles about which they know so little. As has been said in so
many times in this work, an engineer should be non-committal; it were well,
in many places, to be dumb; usually the least said the better. He should in his
estimates justify his every act and conclusion, and fortify his every decision
and judgment against every attack, but the place for such records, notes, and
comments is, like a physician's or lawyer's, in his diary, note-books, and office,
and not spread upon a certificate, estimate, or award, which is for results and
conclusions only. If an engineer will have his award enforced, no references
to points of law, to circumstances, or to facts should be made, unless the con-
tract requires them. If an engineer gives the legal grounds and current of
events by which he has arrived at his decision, and it is apparent that his
groundwork was false, then his conclusions must be wrong, even though he
has exercised an honest judgment, and his certificate may be impeached.
437. Discovery and Proof of Fraud on Part of Engineer Renders Certifi-
cate Unnecessary. — When fraud is discovered and a contractor seeks to
recover for what he has done without the certificate of the engineer or a
final estimate, two questions arise: First, whether the engineer's fraud ren-
ders the estimate legally insufficient and. unnecessary? or secondly, whether
it is incumbent on the contractor to demand of the company, or use proper
exertions to procure, a sufficient final estimate ? The importance of having
a final estimate by a competent engineer in charge of the execution of the
work, and the fact that the contract expressly requires it, renders it im-
proper to deprive the company of the benefit of such an estimate, unless it
be very clear that it has been forfeited by the company's own acts or default.
By the terms of the contract the final estimate is usually to be made by
the engineer having charge of the work. By its terms, then, he is the only
one who will answer that description. If to be made by the incumbent of
an office it might be different. His final estimate being fraudulent it would
be unjust to require the contractor to submit to another, which may be as
unreliable as the first one. He is wholly unfit to make another, and it is the
fault or misfortune of the company who have selected him to have a fraud-
ulent engineer.^ When the reference is to arbitratois by name, and their
award is set aside for misconduct, it is proper to try the cause in the regular
course of the business of the court, unless other arbitrators are agreed upon."
' B. & O. R. Co. v. Polly Woods Co., 14 Meyers v. Pac. Const, Co., 20 Or eg. 603.
Gratt. 448 [18581 ; see also Price v. C. S. ^ j^^. jnsrm v. Shai.ks (lud.), 20 N. E.
F. & C. Ry Co., 38 Fed. Rep. 307 [1889J; Rep. 713 [1889J.
§ 438.] CONTRACT STIPULATIONS. 381
So it has been held that if the contractor has proved that the final estimate
made by the engineer was fraudulent, he might recover without further
proof that he was unable to procure such final estimate.'* If the engineer
has fraudulently underestimated the work, or wrongly classified it in his
monthly estimates, it seems the contractor can bring suit without alleging
that the questions have been referred to the engineer, no hearing having
been expressly provided for.'
Fraud terminates the engineer's authority and divests him of his powers
as umpire, and opens the doors of the courts for the contractor. It must
be apparent to the reader that an overzealous engineer, or one with more
zeal than principle, could, by his own imprudence, render the most vital
part of the contract null and without effect. Such a consequence might be
more detrimental to the interests of his company than what he could ever
have filched from the contractor by nefarious practices. The case once in
court, it gives the determination of questions of the most technical character,
of facts difficult in the extreme, of things concealed and known only to the
parties and to the engineer, of mathematical operations requiring peculiar
preparations and skill, to a jury indifferently selected, and to judges ap-
pointed or elected without any consideration of their fitness to pass judg-
ment upon such questions ; a misfortune which almost every clause of the
contract seeks to avert, and to prevent which the engineer was employed.
Whatever hardships result, the justice of these decisions cannot be ques-
tioned. The owner or company having employed and trusted the engineer, it
is in as good, if not a better, position to detect and know his disposition and
character, and it is a sound principle of agency that if a third person or the
principal must suffer from the acts of an agent, it should be the principal who
has employed, retained, and trusted the agent.
438. Other Instances in which Engineers' Certificates have been Dis-
pensed With. — Other circumstances have been mentioned in cases as a possi-
ble excuse for the nonproduction of the certificate, or the performance of
the condition, but the cases are rare in which actual recovery has been
allowed without it. It is often asserted that if the performance of the con-
dition precedent has been rendered impossible by time or accident or agen-
cies beyond the control of the contractor, its performance may be excused.
The author is aware that there is a rule to the contrary, that a condition
precedent will not be excused for the above reasons, in a court of law,
though the performance of the act necessary to recover would be excused if
it were regarded as a covenant or a promise instead of a condition precedent;'
but in practice to-day the sharp distinction between law and equity does not
1 Byron t). Bell (Com. PL), 10 N. Y. B 293 ; a«<f McMahon «j. New York, etc.,
Supp. 693. R. Co., 20 N. Y. 463.
2 Meyers v. Pac. Const. Co., 20 Oro.£?. ^ Laugdell's Summary of Contracts,
603 ; and see Phillips v. Foxall, 41 L J. Q 1075.
* See Sections 414, 427-428, supra.
382 ENQINEERINO AND ARCHITECTUBAL JURISPRXfDENCi^. [§ 438.
exist, in many states, and courts of law have adopted the principles of
courts of equity so far as their procedure will admit, and recovery is fre-
quently allowed in courts of law if the failure of the contractor to perform
does not go to the essence of the contract/
It has been held under some circumstances," * where performance is pre-
vented by inevitable accident, as the destruction of the subject-matter of
the contract, the performance will be excused.' f If the completion of the
work is prevented by the engineer, by authority bestowed by the contract,* or
is prevented by authority of the state ^ or city," or by an act of the law,^ or by
accident, fraud, or some unavoidable cause,® or by condition over which the
contractor has no control,' but which are entirely within the control of the
owner, ^'^ the certificate that the contract has been entirely performed is no
longer necessary as a prerequisite to the contractor's recovery."
In rendering the certificate or making the final estimate, the engineer
should consider the contract obligations assumed by the parties only, ttnd
the objects to be accomplished by it. The interference of a third party
should not be considered. It was therefore held that an injunction duly
issued by a court in a suit by a third party against the company or city
afforded no excuse for the refusal of the certificate; that if the certificate
was to be given when the contract was beyond all question completed, its
refusal after completion was unreasonable, and that the contractor might
recover without it.^"^ If the work is to be performed to the satisfaction of an
engineer or architect named, or to be paid for only upon the presentation
of his certificate, the approval, certificate, or estimate will be excused in
case of the engineer's death or prolonged absence." In another case the
* This does not seem to be true of ex- hut see Brumby v. Smith, 3 Ala. 123 [1841].
press conditions precedent, Langdell's * Devlin v. Second Ave. R. Co., 44 Barb.
Summary 1077 ; and see Chism v. Schip- (N. Y.) 81 [1865].
per, 51 N. J. Law 1 [1888]. That a court of * Jones v. Judd, 3 Comstock (N. Y.) 412
equity will give relief by grauting an ac- [1850].
count, M'Iniosh «. Great Western Ry. Co., « Theobald ^. Burleigh (N. H.) 23 Atl.
3 De. G. & Sm. 764 ; Wariug v. M. S. & Rep. 367.
L. Ry. Co., 7 Hare 482 ; Johnson ??. S. «& ' Kingsley v. Brooklyn, 78 N. Y. 216
B. Ry. Co., 3 D. G. M. & G. 914 ; Munro [1879].
v. W. & B. Ry. Co., 13 Wend. 880 ; Gode- s Mills 'o. Weeks, 21 111. 561.
froi & Shnrtt Ry. Cas. 94 ; Scott -o. Rai- ' Brown v. Overbury, 11 Exch. 715.
ment, L. R. 7 Eq. 112 ; Fry's Specific »<> N. Y. & N. H. A. Sprinkler Co. -o.
Performance of Contracts, § 827, p. 366. Andrews, 23 N. Y. Supp. 998.
2 For which see cases cited, and Lang- ^^ /See Buckman «. Landers (Cal.), 43 Pac.
dell's Summary of Contracts, pp. 1074-1089. Rep. 1125 ; Byron «. New York, 54 N. Y.
The size of this book will not permit an Super Ct. 411, and Whelan la. Boyd, 5
exhaustive treatment of the subject of Cent. Rep. 651.
conditions and their performance, which ^^ Bowery National B'k v. Mayor, 63 N.
may be found in any of the standard works Y. 336 [1875] ; see also Union Cem. "Ass'n
on contracts. v. Buffalo (N. Y. App.), 26 N. E. Rep. 330
3 Lord i). Wheeler, 1 Gray, 282 [1854] ; [1891].
Cleary v. Sohier, 120 Mass. 210 [1876] ; ^^ gchenke v. Rowell, 7 Daly 286 [1877] ;
Niblo V. Buisse, 3 Abb. App. Dec. 375 Quigley v. DeHass, 82 Pa. St. 267 ; Firth
[1865]; Rawson x. Clark. 70 111. 656 [1873]; v. Midland Ry. Co., L. R. 20 Eq. 100.
* But see Sees 674 et seq., infra. \ See also Sees. 669-680, infra.
§ 439.] CONTRACT STIPULATIONS. 383
court declined to reverse a judgment on account of errors, because the archi-
tect was dead and the court said it would do no good.'
It is submitted that this will hold only in cases where the decision was
to be rendered by a particular person. If referred to the engineer of tlie
company for the time being or to the incumbent of an office, death will not
excuse the certificate unless the company neglects or refuses to appoint
another." If another be appointed by the owner and accepted by the con-
tractor the certificate of the newly-appointed engineer must be obtained as
a condition precedent to recovery by the contractor.^ Probably no formal
acceptance in terms by the contractor would be necessary; acceptance would
be implied by the court if the work was continued under the engineer's
measurements and directions. If another engineer be not selected or
agreed upon the contractor may sue upon his contract.* If no architect
has been appointed the work, of course, cannot have been completed to
one's satisfaction, and the appointment of the architect is a condition pre-
cedent to the performance of the contractor's covenant to complete the
works, notwithstanding that they were to be completed by or upon the day
named/
If the work undertaken by the contractor is of such a character that he
lias been selected on account of his peculiar skill, knowledge, or ability,
there are cases in which the death of the contractor will excuse the comple-
tion of the work, and in some jurisdictions enable his representatives to
recover for what he has done."
439. Performance of Condition Precedent Prevented by Failure or
Hefusal of Engineer to do His Part. — If no estimate has been made by or
through the neglect, fault, or unreasonable refusal of the engineer or of the
party who employs him, the contractor can probably recover without the
engineer's estimate or certificate for the work he has performed,^ if there
» County of F. v. Laing, 127 Pa. St. 119 [1887]; Thomas v. Fleury, 26 N. Y. 26;
;[1889]. Barton v. Hermann, 11 Ab. Pr. (N. S.)
2 Schenke v. Rowell, 7 Daly 286 [18771. 382 ; Flaherty «. Miner, 123 KY. 382; Will-
3 Beecher v. Shuback (Com. PL). 23 N. iams v. Chicago, etc., R Co., 112 Mo. 463;
Y. Siipp. 604; Wallis Iron W'kst>. Mon- Van Keuren v. Miller, 71 Him (N. Y.) 68;
mouth Pk. Ass'n (N. J.), 26 Atl. Rep. 140. . Marcus Sayre Co. v. Bernz (N. J. Ch.) 26
-1 Pretzfelder v. Merchants' Ins Co. (N. Atl. Rep. 911; Ormes^. Beadle, 2 Giff. 166
C), 21 S. E. Rep. 302; Griffith v. Happers- [1866].
Oereer, 86 Cal. 605 ; N. Lebanon R. Co. v. So held in a case between materialman
McGrann, 38 Pa. St., 530; Ranger •» Gt. and contractor; certificate refused as un-
Western R. Co., 27 Eng. Law & Eq. 35. necessary : Murphy ??. Jones (Sup.), 38 N.
* Hunt V. Bishop, 8 Exch. 675 [1853]. Y. Supp. 461.
« Wolfe V. Hawes 20 N. Y. 197 [1859]; Can have an action at law. Sharpe «.
5w< .<?€« as to excusing performance of con- San Paulo Ry. Co., 8 Chanc. App. 60''';
ditions preredent, Langdell's Summary McMahon v. The N. Y. & E. Ry. Co., ^0
1075-1079; and see Chism v. Schlpper, 51 N Y. 463 [1859]; Herrick v. Belknap, 27
N. J. Law 1 [1888]. Vt. 673 [1854], can recover at L-iw; Merril
' Schenke «. Rowell. 7 Dalv 286 [1877]; v. Ithaca & O. R R.. 16 Wend. 586; Nolau
Heine v. Meyer, 61 N. Y. 171 [1874]: Snell v. Whitney, 13 Rep'tr 601, and cases cited,
V. Cottingham, 72 111. 161 [1874]: Wood v. s. c, 88 N. Y. 648 [1882J; Siarkey v. De
Cliicago, etc.. Ry. Co., 39 Fed, Rep. 52; Graff, 22 Minn. 431; Langdell's Summary
Byron v. Mayor, 54 N. Y. Super. C:. 411 1083; Bently «?. Davidson (Wis.), 43 N.W.
384 ENGINEHi}RINO AND ARCHITECTURAL JURISPRUDENCE. [§439.
has been a substantial compliance with all the terms of the contract and
notliing remains to be done in relation thereto which is practicable and rea-
sonble to complete the job/ Even though the building contract provides for
payments only on certificates of the architects, it does not prevent recovery^
by the builder if he has fully performed the contract and the architect
refuses his certificate without sufficient cause.'^ If the contractor has.
returned the final certificate of the architect as not being satisfactory, and
the architect afterwards refuses another or to redeliver the same one, the
contractor may recover without it/
If the contractor prove that he was ready and willing to perform the
condition precedent, but was prevented from doing so by the act of the
owner, he will be discharged from further performance and may recover on
a quantum meruit or in an action on the contract.* The contractor may
recover a reasonable sum for work and labor done, money expended in the
performance of the contract, and materials furnished, and in addition aa
equivalent sum for the profits which he would have realized from the per-
formance/* The owner cannot insist on a condition precedent when he
himself has defeated a strict performance."
A refusal to make the estimate at once when the work has been stopped
because the appropriations have been exhausted, but which estimate was-
made within five weeks thereafter, was held not such a refusal as would
enable the contractor to avoid the engineer's estimate/ It should be made^
within a reasonable time.* A delay of a year on the part of the owner to-
determine damages due to a failure to perform to the satisfaction of an
architect was held fatal to the claim for any damages.' If the engineer's
Rep. 139 [1889]; and see Devlin «. N.Y. & * 3 Amer. & Eng. Ency. Luw 923; case»
E. Ry. Co., 20N. Y. 463; Beecher^. Shu- cited, Plancbe v. Colburn, 8 Bing 14;
back, 23 N.Y. Supp. 604; Sweeny®. U. S., Goodman v. Pocock. L R. 15 Q. B 576;
15 Ct. of CI. 400 ; Rude v. Mitchel (Mo.), Cort v. Ambergate R. Co., L. R. 17 Q. B.
11 S. W. Rep. 225 (1889] ; Jeuks v. Rob- 127 ; Hall v. Rupley, 10 Pa. St. 231 ;
ertsou, 12 Alb. L. J. 57; Smith ®. Smith. Moulton v. Trask, 9 Mete. (Mass.), 577;
45 Vt. 433 ; and Weeks v. O'Biieu, 141 Wheleu v. Boyd. 114 Pa. St. 228 ; Hoag-
N. Y. 199 ; and see also Neenan v. Dono- laud v. Moore, 2 Blackf (lud.) 167 ; Wool-
ghue, 50 Mo. 493, where only one member ner v. Hill, 93 N. Y. 576 ; United States v.
of a committee of three examined the work Behan, 110 U. S. 339 ; Bannister v. Read,
and accepted it. The contractor was per- 1 Gilman (111.) 92; Selby v. Hutchinson,
mitted to recover. 4 Gilman (111.) 319 : Webster v. Enfield, 5-
1 Craig V. Geddis (Wash.), 30 Pac. Rep. Gilman (111.) 298 ; Derby v. Johnson, 21
896 ; accord, Beutly v. Davidson (Wis ), 43 Vt 17 ; Clark v. Marsiglia. 1 Denio(N. Y.)
N. W. Rep. 139 [1889]; Smith v. Brady, 17 317.
N. Y.176 ; Thomas v. Fleury, 26 N.Y. 26 ; ^ ^ Kendall Bank Note Co. v. Comm'rs of
Wvckoff V. Meyers, 44 N. Y. 145 ; Nolan Silking Fund, 79 Va. 563 ; Cent. Lui atic
«. Whitney, 88 N. Y. 648 ; U. S. v. Robe- Asylum v. Flanagan, 80 Va. 116.
son, 9 Pet. 328 ; Smith v. Wright, 4 Hun « Butler v. Tucker, 24 Wend. 449 : Doll
652 ; Whiteman v. Mayor, 21 Hun 121. v. Noble (N. Y.). 22 N. E. Rep. 406 (1889];.
2 Van Keuren v. Miller (Sup.), 24 N. Y. see McKone v Williams, 37 111. App. 591.
Supp. 580 ; Bd. of Ed. v. First Nat. B'k ^ Dlirew v. City of Altoona. 121 Pa. 401
<8up), 24 N. Y. Supp. 392 ; Marcus Snyre [1888]; s. c, 15 Atl. Rep 636.
Co. 1). Bernz (N J. Ch.), 26 Atl. Rep 911. ^ Soderberg «. Crockett. 17 Nev, 410.
^ Arnold xi. Bourinque, 144 III. 132, re- * Baumister v. Patty's Exec'rs, 35 Wis*
-versing 44 111. App. 199.
*See Sees. 440 and 690-696, infra.
§ 439.] CONTRACT STIPULATIONS 385
certificate be filed before the commencemont of an action (three months
after work was completed) the contractor cannot allege the absence of such
certificate or proceed as if there were none, even though there has beau
unreasonable delay in filing itJ
If the contractor demand an estimate of work done and receives an
unqualified refusal, or is indefinitely put off or it is not done with reason-
able dispatch, the contractor is entitled to bring suit and to prove the value
of his work by other means.' The contractor may have the work estimjited
by other engineers, whose evidence of the quantities is admissible." If the
engineer be designated as the officer of a certain bureau, and he refuses to
act, it cannot be shown by the owner that the work done does not conform
with the rules and regulations of such bureau/ When the architect declared
that he refused the certificate on the ground that the contract had not been
complied with, and it was proved that he had admitted that the contract was
substantially performed, but that he neglected to give the certificate because
'' the owner had told him not to give it, and that he could not do because
the owner was a friend of his, and that to give it would break friendship
with him,'^ it was held that the certificate was unreasonably and in bad
faith refused, and that the contractor might recover the balance of the con-
tract price, less an allowance for damages on account of omissions and devia-
tions.' Another case held it was a question for the jury to determine
whether the certificate was unreasonably withheld.*
The contractor must have asked for a certificate, or have offered to refer
disputes to the engineer!s determination.'' Some cases hold that the con-
tractor must make a demand for the certificate, and it has been held that
an inquiry as " whether the returns are in " — i. e., whether the estimates and
measurements of the division engineer have been returned to the chief engi-
neer so that he can make his final estimate — is not a demand of the chief
engineer for a certificate of work done." *
817 [1874] ;/(?Mrm<?n^/i5, Preston®. Syracuse N. Y. Supp 604; Wilson v. York & Md.
(Sup.), 36 N. Y. Supp 716. R. Co., 9 Peters 237; Williams v. Chicago,
1 O'Brien «. City of New York (K Y. etc.. R. Co., 112 Mo. 463; Guidet v. Mayor.
App.), 35 N. E. Rep. 32.i, 139 N. Y. 543. 36 K Y. Super. Ct. 557 [1873] ; and see
2 Dhrew v. Altoona City, 121 Pa. St. 21 Amer. & Eug. Eucy. Law 1^ \ see also
419; McMabon v. N. Y. & E. R. Co., 20 United States v. Robeson. 9 Pet. 319-337;
N. Y. 463; Herrick «. Belknap, 27 Vt. Devlin v. 2d Ave. R. R., 44 Bart). 81;
673; Downey v. O'Donnell, 92 111.559; Jenks v. Robertson, 12 Alb. L. J. 57;
Grant v. Savannah, etc., R. Co., 51 Ga. Smith v. Smith, 45 Vt. 433.
348 ; Atlanta, etc., R. Co. ®. Maughan, 49 ^ Crawford v. Wolf, 29 Iowa 567 [1870J;
Ga. 266 ; Milnor d. Georgia R. Co.. 4 Ga. McFadden v. O'Donnell. supra.
385 ; Lewis «. Hoar, 15 Am. Law Review ^ A. J. A. Electric Co. v, Clebtn-ne, etc.,
2:J9 [1881] ; Trustees of I. & M. Canal v. Co. (Tex.), 27 S. W. Rep. 504.
Lvn(;h, 10 111. 521 ; «6e Thomas ■». Fleury, ^ Anderson v. Meislahn, 12 Daly 150
26 N. Y. 26 [1862]; N. Y. N. H. A. [1883].
Sprinkler Co. v. Andrews, 23 N. Y. Supp. « Gibbons «. Rus=ell, 13 N. Y. Supo. 879.
998: McFadden v O'Donnell, IS Cal. 160 ^ Hartupee v. Pittsburg, 97 Pa. St. 107
[1861]; A. J. Anderson Elec. Co. d. Cle- [1881].
bnrnc Co. (Tex), 27 S. W. Rep. 504 » Byron v. Low (N. Y.), 16 K E. Rep.
[1894]; Bucher v. Schuback (Com. PI.) 23 45 [1888]; and see Wilson v. York & Md.
* See Sec. 417, suvra.
386 ENGINEERING AND ARGIIITECTURAL JURISPRUDENCE. [§ 440.
The fact that the contractor does not know the address of the engineer
and could not obtain it from tlie company, who failed to assist liim in get-
ting an estimate from the engineer, will excuse the demand and production
of it in the absence of proof that the engineer disapproved the work done.*
The duty to submit questions to the engineer or architect is mutual, and
neither party. can take advantage of its own neglect to do so.'
440. Inspection and Estimate Rendered Impossible by Act of Owner or
Company.* — If the certificate is withheld not because the work has not been
well and properly completed according to the contract, but by order or
request of the owner of the building or of the company, the builder may
recover without the certificate.'
When the contract contained a provision that the certificate of perform-
ance shall be given *' agreeable to the drawings and specifications made by
architects and signed by the parties thereto, and the drawings and specifica-
tions have been returned to the architect," and no drawings and specifica-
tions were ever prepared, the failure to procure the architect's certificate
was held no bar to recovery and its production unnecessary." A failure on
the part of the company to perform their part of the contract has been held
to be sufficient cause for the contractor to rescind the contract and to sue
for labor and materials furnished, in which case the part requiring an
acceptance by the architect would not be in force, and the company could
not claim the benefit of it. If this were not the law the company could pre-
vent the contractor from completing the job, and thus prevent him from
doing that which was necessary to be done before he could procure the
acceptance or a certificate of the architect.'
If the owner refuses to allow the contractor to proceed with and com-
plete the work, tlie provision "that all disputes as to the construction of the
work shall be settled by the architect, and all disputes as to tlie value of
extra work, and omitted work, shall be settled by arbitration," ceases to be
operative, and the contractor may bring an action for the value of the work
he has done and materials he has furnished, without the architect's
certificate." f
R. Co., 9 Peters 327; Williams v. Chicago, v. Leggett, 4 E. D. Smith (N. Y.) 255;
etc. R. Co. (Mo.), 20 S. W. Rep. 631. Anderson «. Meislahn, 12 Duly 150 [1883];
1 Union Stove Works 'y. Arnoux, 26 N. United States v. Robeson, 9 Pet. 319;
Y. Siipp. 83. Brnnsden v. Bcresford 1 C. & E. 125;
2 Conniy of Fayette v. Laing, 127 Pa. St. M'Intosh v. Great Western Rj., 2 Hall &
119 [1>^89]; McFadden v. O'Donnell, 18Cal. T. 250, in a court of equiU/.
160 [1861]; Downey ^.O'Donnell. 92 111. 559. ^ pj^oenix Iron Co. i\ The Richmond, 6
3 VVlielen v. Boyd, 114 Pa. St. 228 Mackey's R. 180 [1887].
[1886]; Crawford v. Wolf, C. & A. 29 * Bonnett v. Glattfeldt, 120 111. 175; see
Iowa 567; Kiiiasley v. Brooklyn, 78 N. Y. Linch v. Paris Lumb. Co., 80 Tex. 23; and
216 [1879]; 3 Amer. «feEng. Eucy. Law 932, Gillen v. Hubbard. 2 Hilt. (N. Y.) 303.
und cases cited; Guidet -«. Mavor. 36 N. Y. * Velsor ■». 'Eaton, 14 N. Y. Siipp. 467
S ip. Ct. 557 [1873]; Mills v.^F&ul (Tex ). [1891]; Kingsley v. Brooklyn, 78 N. Y. 216
30 8. W. Rep. 558: St. Louis & P. R. Co. [1879]; Markey v. City of M. (Wis.), 45 N.
V. Kerr (III.), 38 N. E. Rep. 638; Martin W. Rep 28 [1890].
* See Sees. 323-326, supra, and 489-40 and 689, infra.
f See Sees. 323-326, supra, and 670 and 689, infra.
§ 441.] CONTRACT STIPULATIONS, 387
•If the company has rendered the inspection, and therefore the estimate
and certificate, impossible by its own act, by concealing, undoing or destroy-
ing the work that has been done, it has been held that the contractor might
recover without the certificate.* When the performance of the work has
been arrested by the acts or omissions of the company, the contractor may
have his election either to treat the contract as rescinded and recover for
what the work is reasonably worth, or to so much as he is justly entitled, or
he nfay sue upon the agreement to recover for the work completed accord-
ing to the contract and to recover damages he has sustained by reason of
the refusal to permit the contractor to perform the contract; which include
his loss of profits.' * When the performance has been prevented by circum-
stances not under the control of either party, then neither party is in default
and no profits can be recovered.' f The contractor's recovery will be for
work actually performed according to the rate established by the contract,
for if the contractor assumes the risks, he should be entitled to the advan-
tages resulting from them ; and the fact that he has done the easier part of
the work first, is no reason why they should not recover ^^er the contract
rate, for they could not have recovered more than the contract price if the
more expensive parts of the work had been undertaken and performed
first.
The English courts have entertained suits for damages by the contractor
against the architect and owner, either jointly or severally, when through
fraud or collusion they have withheld or refused a certificate.* The fraud
or collusion must be alleged,** for he cannot be subject to an action for errors
of judgment and skill, nor for refusing to reconsider such alleged mistakes,
his duties involving discretion and judgment." The owner it seems is not
liable for the acts of his architect or engineer in withholding the certificate.^
441. Some Courts allow Contractor to Kecover on a Substantial Per-
formance of his Contract. — The approval of the architect may be presumed
from the presence of the architect at the time the work was done and his
failure to make any objections." If the architect, acting in good faith, fails
and refuses to approve the work in any form, the general rule is, without
doubt, that the contractor cannot recover. If the owner approves the work,
such approval by the architect is dispensed with; and when a contractor has
fairly endeavored to perform his contract and has, in fact, substantially per-
' Doyue v. Ebbsen, 73 Wis. 234 [1888]. work was excavation and embankment of
^ Jones V. Judd, 4 Comstock (N. Y.) 412 earthworks.
[1850]: Boyd v. Meigban, 48 N. J. Law * Batterbury v. Vyse, 2 H. & C. 42;
404 [1886]; Hall v. Bennett, 48 N. Y. Super. Ludbrook i}. Barrett, 36 L. T. (N. S.) 616.
Ct. 302; Langdell's Summary of Contracts ^ Stevenson v. Watson, 4 C. P. D. 148.
1077. " Stevenson v. Watson, supra.
'^ Jones V. Judd, supra. This decision "' Clarke v. Watson, 18 C. B. (N. S.) 278.
was not without disseiition and was rend- ^ Wright tj. Meyer (Tex.). 25 S. W.
ered on a vote of four to tbree^ those vot- Rep. 1122: Coon v. Citizens' W. Co., 153:
ing in the negative maintaining that dam- Pa. St. 644.
ages should have been incliided. The
* See Sees. 690-696, infra. \ See Sees. 669-680, infra.
388 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 442.
formed it. many courts will permit him to recover if they can find any
plausible ground or pretext to support such a decision/ *
442. Instances in Which Contractor has Been Allowed to Recover,
Without Complete Performance, and Without Securing Engineer's Certifi-
cate.— Some courts"^ seem to have been more lenient with contractors and
more ready to permit a recovery without a strict performance of the con-
tract or of its conditions than other courts of certain states or of England or
of Canada. In New York this is due to several causes, and among othe^rs it
may be attributed to the code practice in vogue, which gives jurisdiction of
•equity courts, and to the fact that the courts have been divided on this ques-
tion. In the United States, usually a substantial performance of a contract ia
good faith will entitle the contractor to recover for his work notwithstand-
ing slight or trivial defects and omissions in its performance, for which
allowance may be made from the contract price. A refusal by the engineer
to give his certificate because of small and unimportant defects and omis-
sions has been held unreasonable, and to dispense with the necessity of it,
even though the contractor had intentionally furnished slightly defective,
work, in the performance of his contract." f Where an owner with his archi-
tect has accompanied the contractor on a tour of inspection through the
building and they have pointed out what is necessary to complete the entire
job, which finishing touches have been made and done, and the architect
afterwards called the attention of the contractor to a few little odd jobs and
repairs to the amount of $30, which he insisted should be done before he
would grant his certificate, refusing the certificate until they were done,
thereby keeping some $2,700 from the contractor; the court regarded these
little items of work " as items hatched up as deficiencies by the owner and
his architect " to avoid paying the contractor, and sufficient evidence of
unreasonableness and bad faith to dispense with the condition precedent.*
'This New York case must be taken as probably very near the line, and the
least evidence of fraud and bad faith that would suffice. It must be pre-
ssumed that the court was pretty well satisfied of the owner's and architect's
intentions, and that the contractor had been the victim of their collusion,
but the bare fact of their insisting on these odd jobs and repairs being done
would hardly justify such a conclusion. It is true that the architect might
have given his certificate for the bulk of the money due and have deducted
» Kane v. Ohio Stone Co.. 39 Ohio St. 1
[1883].
2 Ni)lan V. Whitney, 88 N. Y. 648 [1882]:
ciiinij numerous cases; Keener's Quasi-Con-
tract Cases, pp. 113-139.
» Demaiest v. Haide, 52 N. Y. Super Ct.
S98 [1885]; accord, Bradley v. Brennick,
N. Y. C. P , Dec. 1878; Heckman v. Pink-
uey. 81 N. Y. 211.
4 Thomas 15. Fleurry, 26 N. Y. 26; ac-
* See Sees. 700-702, infra.
cord, Biadner v. Roff^el (N. J.), 29 Atl.
Rep. 317 [1894]; but see Hauhy v. Walker
(Mich.), 45 N. W. Rep. 57 [1890], which
held that though the architect had been
through the building and pointed out de-
fects to be remedied which the contractor
had done, and did not excuse him from
furnishing the architect's certificate which
had been made a condition precedent to
his recovery.
\ S.e Sees. 698-702, infra.
■§ 442.] CONTRACT STIPULATIONS. 389
sufficient to complete the job, but if it was bud faith or frivolous on the part
of the architect to retain so large a sum of money for so trifling a matter, it
was equally unreasonable for the contractor to refuse to perform the few
odd jobs. The question whether defects were so trivial and insignificant as
to justify the finding that the work was substantially pej-formed has been
held a question of fact.*
The question of what is a substantial performance has been held a mixed
conclusion of fact and law. Whether a defect or omission constituted a
breach of the contract it seems is not a question for the jury, but a question
of law for the court,' and the question whether the conclusions of law was
supported by the findings of fact will be sufficient to sustain exceptions.'
If the architect certified to the completion of the contract when it was not
finished, the question would arise if it would be binding and conclusive on
the owner. It has been held that it was ; that a certificate for works which
lacked some $45 of being completed was not sufficient to impeach the cer-
tificate for fraud or to justify the owner in refusing to pay for at least the
work actually done.* There are cases to the contrary which hold that the
completion of the work should be insisted upon, and that it is no excuse
that a portion of it might be executed and the whole completed at the cost
of a few dollars.* *
These cases cannot be said to decide that the holding of a contractor to
the strict and ultimate completion of his contract is an evidence of bad
faith, but the decisions are valuable in that they contain lessons for archi-
tects and engineers — lessons that they all have to learn sooner or later.
They show the necessity of being noncommittal, and of keeping their views
to themselves until they have carefully looked over the works, the contracts,
the specifications, and have carefully considered them all, in connection with
one another, and to refrain from expressing themselves as to what will con-
stitute a satisfactory completion of a structure until they are well satisfied
that everything is done that the contract requires. As stated before, aa
engineer should see much and say little.
in Massachusetts it has been held that if there has been an honest inten-
tion to go by the contract, and a substantial execution of it, but some com-
paratively slight deviations as to some particulars provided for, the part^
may recover on a quantum meruit even when there is a special contract, and so
much should be deducted from the contract price as the works are worthless,
on account of the departures and omissions." Another case holds that if the
» Johnson v. De Peyster, 50 N. Y. 666 283, and Wildey r. School Dist., 25 Michl
[18721. 419.
2 Glaucius V. Black, 67 N. Y. 563 ^ Finnegan & Co. v. L. Engle, 8 Fla. 413
3 Ketchura v. Herrington (Sup.), 18 N. [1859].
Y. Supp. 429 [1892]. « Hayward v. Leonard, 7 Pick. 181
* Lincoln v. Schwartz, 70 111. 134; see [1828J.
also Kelley v. Syracuse, 31 N. Y. Supp.
* See Sees. 370, 38^390, supra.
390 BNOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 443-
contractor has left the work without fraud or wilful default, believing it to
be completed as required by the contract, he is entitled to recover the price
agreed upon, less the amount paid to finish it to the acceptance of the engi-
neer.' He may recover the amount due subject to deduction for damages for
imperfections and deficiencies in the work.' The New Hampshire courts
would be apt to allow a recovery on tlie same ground.^
The law of contracts in general is much more strict, and requires a com-
plete performance of conditions precedent, as the English law requires." *
443. Instances Showing when the Engineer's Determinations have been
Upheld.— The giving of a final certificate when works lacked some $45 of
completion has been held not to be sufficient to impeach the engineer's cer-
tificate for fraud and to justify the company in refusing to pay at least for
the work actually done,^ and when a distance was to be ascertained and
fixed by an engineer, by which the contractor was to be paid, was declared to
be considerably less than by the usual route or by the air line, it was held not
to be a mistake so gross as to imply bad faith or a failure to exercise an
honest judgment."
An award which is not the result of the judgment of the engineer, but
is based on an agreement between one party and the engineer even though
authorized by the other party, is not binding if the consent of one party was
obtained by fraudulent means; ' and ah agreement on the part of the archi-
tect with his employer that cost of the works shall not exceed a certain sum,
which was concealed from the builder, has been held so far a fi-aud as to
excuse him from obtaining the architect's certificate, and to entitle him to
recover without it.* Under an allegation of fraud it was held that evidence
of the use of inferior and rotten fiooring in a building should have been
admitted as tending to show bad faith on the part of the architect in accept-
ing such materials."
In England the engineer's decision has been held to prevail notwith-
standing there was a clause in the contract that "the inspection at the shops
is not in any way to commit the company to the approval and acceptance of
materials which, when delivered, shall not be strictly in accordance with the
drawings and specifications," and another clause that ''\t is expressly under-
stood that the engineer's approval is not in any way to relieve the contractors
' Walker v. Orange (Mass.), 16 Gray [18811.
193 [I860]; see also Dtivis v. Badders(Ala.), ^ Lincoln «. Schwartz 70 111. 134; hutsce
10 So. Rep. 422 Kelley v. Syracuse, 31 N. Y. Supp. 283.
2 Danville Bridge Co. d Pomeroy, 15 ^ Kieblberg v. United States, 97 U. S. 398
Pa. St. 151 [1850] ; accord. Kane v. Ohio [1878].
Stone Co., 39 Ohio St 1 [1883|. "^ Stockton Works v. Glen Falls Ins. Co.
^Britton v. Turner, 6 N. H. 681; Smith (Cal), 33 Pao. Rep. 633, 637, 638.
». B C. & M. Ry. Co., 36 N H 459. « Kemp v. Rose, 1 Giff. 258; Kimberly u
^Keeuer's Cases on Qua?i-Contrjicts; Dick 13 Eq. 1; and see Pawley v. Tum-
Langdell's Summary 1074 to 1089; hut see, bull. 3 Giff. 70.
Lewis®. Hoar, 15 Amer. Law Rvw. 239 » Tetz «. Butterfield, 54 Wis. 242 [1882].
* See especially Sees. 697-704, infra.
§ 443.] CONTRACT STIPULATIONS. 391
from the conditions and stipulations in the specifications." It was held that
the contract, as a whole, showed that the parties intended the final expres-
sion of the engineer's satisfaction with the entire contract to be conclusive.
The court said: "It would be most extraordinary if this clause was binding
on the company if they had disputed the quality of the iron and not binding
if they did not/' *
» Dunaberg & W. Ry. Co. v. Hopkins Co. (Eng.), 36 L. T. Rep. 733 [18771.
CHAPTER XV.
CERTIFICATE AND ESTIMATE OF ENGINEER OR ARCHITECT CONCLXJ.
SIVE ON BOTH PARTIES TO THE CONTRACT.
444. Provision that Engineer's Determinations shall be Equally Binding
and Conclusive upon Both Parties to the Contract.
" It is hereby further agreed that the said directions, decisions, ad-
measurements, valuations, certificates, orders, and awards of the said
engineer, which may be made from time to time, shall be final and con-
clusive upon the company or owner and the contractor[s] and upon his
[theirj respective legal representatives."
445. Engineer's Certificate and Decision are Conclusive on the Owner as
well as the Contractor, — An agreement to arbitrate is not binding on either
party unless both are bound, ^ for by the laws of arbitration an award is not
binding upon one party unless the other is likewise bound. The groundwork
of the law governing the submission of questions and disputes to engineers and
architects is that of arbitration. While it is frequently held that the sub-
mission is not strictly a submission to arbitration, and the determination is
not an award so as to be made a rule of the court under the codes and
special laws of many states, yet it has, as has been shown in previous chap-
ters, all the essentials of a common-law submission to arbitration. The engi-
neer has been called a quasi-arhiter, an umpire, and a referee, from the
earliest to the present period, and the cases have been supported upon the
principles of arbitration and governed by its laws and rules. It is an almost
universal law, therefore, that when a contract provides that the engineer shall
pass upon the work and certify to payments to be made, or that the work
and materials must be to his satisfaction before any payment therefor shall
become due, his decisions are binding and conclusive upon the contractor,
owner,'' sureties," subcontractors,* and all parties to the contract.*
^ Nnllelly v. Southern Iron Co. (Tenn.), App. 232; and see Woodruff v. Hough
29 S. W. Rep. 361. (Ct.), 91 U. S. 596 [1875] ; Lathrop «. Ells-
2MoAuley v. Carter, 23 111. Rep. 53 worth, 15 N. Y. Snpp. 873 [1891]; Cum-
[1859]. mings v. Bradford (Ky.), 22 8. W. Rep. 548
3 Finney v. Condan, 86 111. 78 [18771. [1893]; Smith v. Molleson, 74 Huu (N.
^Grannis, etc., Co. v. Devees, 25 N. Y. Y.) 606; St. Louis, etc., Ry. Co. v Kerr,
Supp. 375; Park Fire C'ay Co. v. Ott (Pa.), 48 111. App. 496; Rlcker v. Collins, 81 Tex.
30 Atl. Rep. 1040; Ross v. HcArthur 85 662, and St. Joseph I. Co. d. Halverson, 48
Iowa 203; Brown v. Decker. 142 Pa. St. Mo. App. 383, which held engineer's esti-
(i40[1891]; O'Reilly ^. Kerns, 52 Pa. St. ma e conclusive upon creditors of subcon-
214; Giiilbault v. McGreevy, 18 Can. Sup. tractor.
Ct. 6U9; Clark v. Diffenderfer, 31 Mo. ^ Sanders v. Hutchinson, 26 111. App.
392
§ 445.] CONTHACT STIPULATIONS. 393
The conclusiveness and binding effect of this clause upon tlie party is
tisiially upheld whenever the engineer's or architect's determination is made
a condition precedent to payment, even if it is not expressly stipulated that
his decision shall be final and without appeal.*
When it is expressly provided that the engineer's decision shall be final
and conclusive, or without appeal, it is so held' in the absence of pi-oof of
fraud, gross mistake, or unfair dealings on the part of the engineer. His
acceptance of the work, or his refusal to accept, is equally as binding and con-
clusive upon both the owner and contractor/
When the certificate has been granted by the engineer, the fact that it
was afterwards rescinded by the city, board, or company, will -not prevent the
contractor from recovering, for the condition required has been performed,
and it is beyond the power of either party to undo it.* A court of equity
will compel the issuance of the bonds, the payment of money collected, o-nd
the collection of the rest by assessment by mandamus, even though tlie work
does not in all respects comply with the contract and specifications, there
being no allegation of fraudulent practice in procuring and giving of the cer-
tificate.' The engineer's decision is conclusive, and the duties of the comp-
troller are purely ministerial, and he must approve and issue a warrant to
pay contractor on engineer's certificate." A writ of mandamus will be issued
to compel the comptroller to sign the warrants, or specifically state his reasons
for refusing to do so. An answer by the comptroller that *' it does not appear
that the contract was made in accordance with the act governing such con-
633; Flynu v. Des Moines, etc., R. Co., 63 App. 303 [1889]: Reilly v. City of Albany
Iowa 492; O'Dea v. City of Winona, 41 (N. Y.), 39 Alb. L. J. 174 [1889]; Truste s
Minn. 424; Price v. Chicago, etc., R. Co., of I. & M. Canal «. Lynch. 10 111. 521; and
38 Fed. Rep. 304; People v. City of Syra- see Snell ». Brown, 71 111. 134; Finney v.
cuse, 20ISr. Y. Supp. 236; Phila., etc., R. Condon, 86 111. 78; Lull v. Korf, 84 111.
Co. «. Seber Howard, 13 How. Rep. 307 ; 225; Downey v. O'Donnell, 86 111. 78;
Alton, etc.. R. Co. v. Noithcott, 15111.49; Mercer v. Harris, 4 Neb. 82; Howard «?.
Vulcanite Pa v. Co v. Phila. Traction Co. Alleghany Val. R. Co., 69 Pa. St. 489
(Pit.). 8 Atl. Rep. 777; Starr «. G. C. Min. [1871]; O'Reilly v. Kerns, 2 P. F. Smith
Co., 6 Montana 485; Brady?). Mayor of K 214; Beswick v. Piatt (Pa.) 21 Atl. Rep.
Y., 30 N. E. 757 [1892]; accord. Coon «. 306 [1891]; Phila., etc., R. Co. -o. Seber
Allen (Mass.), 30 N. E. Rep 83 [1892]; Howard, 13 How. Rep. .307; Sinclair v.
Laidlaw t). Hastings Pier Co.. 36 Law Tallmadge, 35 Barb. 602; Boettler «. Ten-
Times Rep. 736; Thonnpson «j. Lord Bate- dick (Tex.), 11 S. W. Rep 497 [1889];
man. 36 L;\w Times Rep. 736; McCoy v. Reynolds v Caldwell, 1 P. F. Smith 298;
Long 13 111. 147. Snaith v. Smith, 25 N. Y. Supp. 513; s. c.
• Wyckoff V. Meyers. 44 N. Y. 143 27 N. Y. Supp. 379; Thompson v. Lord
[1870]; People v. Syracuse, 20 N. Y. Supp. Bateman, 36 Law Times Rep 736.
23(); s. c. (N. Y. App.) 38 N. E. Rep. 1006; - ^ Reilly v. City of Albany, 112 N. Y. 30
O'Dea V. Winona (M.mu.) supra. Park Fire [1889], and cases cited siipra.
Clay Co. V. Ott (Pa.), 30 Atl Rep. 1040; ^ Reilly «. City of Albany, 112 N. Y. 30
Wilcox V. Stephanson (Fla.). 11 So. Rep. [1889]; Bournique v. Arnold, supra.
659;Tefz«. Butterfield, 54Wis. 242 [1882]; * People «. Syracuse, 20 N. Y. Supp.
Sheffield, ec . Co i). Gordon, 14 Sup. Ct. 236; s. c, 38 N. E. Rep. 1006.
Rep 343; Kennedy v. Poor (Pa), 25 Atl. ^ In re Freel, 148 N. Y. 165; [1896];
Rep 119; Hot Springs R. Co. v. Maher, 48 semble. Peop'e v. Fitch, 147 N. Y. 355; nc-
Ark. 522. cord; Common wealtli v. Clarkson, 3 Pa St.
2 Price V Chicngo, etc.. R. Co., 3^^ Fed. 281 [1846]; but see Beeckman v. Landers
Rep. 304 [1889]; Gay v. Haskins, 30 N. Y. (Cal.), 43 Pac. Rep. 1125.
Supp. 191; Bournique v, Arnold, 33 111.
394 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 446
tracts, that the articles were unsuitable and unserviceable, and that the con-
tractor was allowing large commissions to the agent who secui'ed the con-
tract, was held not a ground of objection founded on matters within the comp-
troller's discretion, and not a defense to the writ/
Neither the contractor nor the owner can question or dispute the engineer's
decision, except for fraud, or something that implies or creates a presump-
tion of fraud, and the jury' should be well satisfied of the fraud to disregard
the engineer's estimate, or his refusal to grant a certificate.
446. Owner Cannot Avoid Engineer's Certificate by Pleading Work was
Insufficiently Done. — Whether the work must be completed according to
the contract aud specifications, or whether the engineers decision and accept-
ance will prevail, is not settled. Itshould be decided by settling the ques-
tion, "What was the intention of the parties?" If that can be gathered
from the contract, it should hold.' Sometimes a clause is inserted provid-
ing for such a contingency.
When the contract provided that the materials used should be strictly in
accordance with the plans and specifications, and it authorized the city to
appoint such a person to inspect [and accept] the materials as might be
deemed proper, it was held that a difference of opinion between the con-
tractor and inspector as to whether or not the materials conformed to the
plans and specifications was an incident contemplated by the terms of the
contract, and that the rejection of materials in good faith by the inspector
gave no ground for damages to the contractor, even if the rejected mate-
rials did conform to the specifications.*
If a structure is to be built according to the plans and specifications and
to the satisfaction of the engineer, it may be doubted if his acceptance will
hold unless it has been done according to the contract.^* The provision for
acceptance, or to engineer's satisfaction, has been held an additional safe-
guard," but when full powers to determine quantity, quality, value, and
other like questions as to workmanship and completion of a structure are
given to an engineer, and his decision is made final and conclusive upon the
parties, or it is made a condition precedent to liability to pay therefor on the
part of the owner, it is generally held that the parties cannot go behind his
decision without impeaching his estimates and decisions for fraud, collu-
' Commonwealth n. Philadelphia (Pa. ^Dunaberg & W. Kv. Co. v. Hopkins
Sup.), 85 Atl. Rep. 195; Commonwealth «. . & Co., 36 Law Times 733.
Clarkson, 3 Pa. St. 281 [1846]; and see * Montgomery ij. City of New York. 29
Board of Pub. Liby. v. Arnold, 60 111. N. Y. Supp. 687; s. c. 45 N. E. Rep. 550;
App. 328, and People v. Palmer (Sup.), 42 Pennell v. Mayor, 14 N. Y. Supp. 876, was
N. Y. Supp, 282. distinguished.
2 Tetz V. Butterfield, 54 Wis. 242 [1882]; ^ g^^ Kennedy ». Poor (Pa, ), 25 Atl. Rep.
Sharpe v. San Paulo Ry. Co., 8 Ch. App. 119; s. c. 151 Pa. Si. 472.
606; Taylor v. Renn, 79 111. 181; Scott v. • Glaucus «. Black, 67 N. Y. 568 [1878];
Corporation of Liverpool, 3 D. & J 334; Bonrd v. First Naf 1 Bank, 24 N. Y. Sujp.
Price v. Chicago S. F. & C. Ry. Co. 38 392.
Fed, Rep. 304 [1889].
* /See Sees. 370, 381-388 swpm.
§ 446.] aONTRAGT STIPULATIONS. 395
sion, or such conduct as implies fraud or bad faith on the engineer's part.*
When work has been accepted by the enginf;er and he has issued his certifi-
cate of completion to the contractor, it is no defense to an action for the
contract price that "in certain particulars the work does not conform to
the plans and specifications or contract,"' or " tliat the engineer's estimate
was largely in excess of the actual quantities and the contractor greatly
overpaid,"" or "that the required work to be paid for had never been
done,"' or " that there were omissions,"' or "tiiat the work was defective or
that the structure fell."" An agreement to complete work to the satisfac-
tion of a commissioner of public works, and according to certain plans and
specifications, does not require a literal compliance with the specifications
and plans/ There should be no fraudulent concealment of defects, or mis-
representations.*
When tlie engineer has passed judgment, rendered his estimate, and a
settlement has been made by the tribunal and according to the manner pre-
scribed by the parties, courts will not open up the whole question if they can
justify their course in not so doing.® If an engineer has been present upon
the works, watched their progress, inspected and estimated it from time to
time, and has given his final certificate of completion, with the aniount du6
the contractor, there can be no going behind it. The engineer, under such
circumstances, has been held the agent of the owner, and his knowledge held
to be the owner's knowledge, and if there were no false or fraudulent repre-
sentations the owner and contractor were alike bound.*
When the work has been completed and accepted the contractor cannot
be held for breakages, repairs, or injuries resulting from defective work or
materials.^" If poor work results from the engineers negligence or ignorance,
it has been held to be contributory negligence of the owner, and he cannot
recover from the contractor.'* If, however, the final estimate has not been
^ People V. Syracuse, 20 N". Y. Supp. Times Rep. 736.
236; 8. c. (N. Y. App.) 38 N. E. Rep. » English v. School Dist. (Pa.), 30 Atl.
1006, 144 N. Y. 63, and see cases cited Rep. 506
supra. Sees. 422-428. « People v. Syracuse. 20 N. Y. Supp.
2 People V, Syracuse (N. Y.), 20 N. Y. 236, Beswick v. Piatt (Pa.), supra; Brown
Supp. 236; 8. c. on appeal, 38 N. E. Rep. v. Decker, 142 Pa. St. 640 [1891] ; Board of
1006: Snaith v. Smith, 27 N. Y. Supp. 379; Commrs. v. O'Connor (Ind.), 35 N. E. Rep.
Vulcanite Pav. Co. v. Phila. Traction Co., 1006.
115 Pa. St. 280 [1887]; B.C. 8 Atl. Rep 777. ' Brady ^. Mayor of N. Y., 30 N E.
Evidence to that effect will not be received, Rep. 757 [1892]; affirming 9 N. Y. Supp.
Rcilly V. City of Albany, 112 'N. Y. 30 893
[1889]: Brady v. Mayor of N. Y., 30 K E. - ^Boettler v Tendrick (Tex.), 11 S. W.
Rep. 757 [1892]; Phila., etc., R. Co. v. Se- Rep. 497 [1889]; Ayr Road Trustees v.
bar Howard, 13 How. Rep. 307; Board, Adams, 11 Scotch Session Cases 326
etc., V. Newlin (Ind.). 31 N. E. Rep. 465; [1883].
Hiirvey v. Lawrence (Eng.), 15 L. T. Rep. 'Ayr Road Trustees v. Adams, 11 Scotch
571 [1867]: Omaha v. Hammond, 94 U. Session Cases 326 [1883].
S. 98 [1877]; 8. c, 5 Cent. Law Jour. 168. '<> Potomac Steamboat Co. v. Harlan &
3 Price ?). Chicago, etc., R. Co., 38 Fed. Holliugsworth Co., 66 Md. 42 [1886] ;
Rep. 304; Lathrop v. Ellsworth, 15 K Y. Adams v. Hill, 16 Me. 215 [1839].
Supp. 873 [1891]. " Potomac Steamboat Co. v. Harlan &
^Laidlaw v. Hastings Pier Co., 36 Law Hollingsworth Co., 66 Md. 42 [1886].
396 ENGINEERING AND ARGHITECTVRAL JURISPRUDENCE. [§ 447.
made and given to the contractor, the contractor may be held to the terms
of his contract by the engineer, and the fact that he has received progress
certificates that work was satisfactory and has been paid according to them
does not constitute a waiver of defects in the work, which were not apparent
upon mere inspection/ *
447. Provision that Estimate and Decision of Engineer shall be Final
and Conclusive upon Contractor.
Clause: "To prevent all disputes and litigation, it is further agreed
by and between the parties to this contract, that the chief or acting
chief engineer shall in all cases determine the amount or the quantity
of the several kinds of work which are to be paid for under this con-
tract, and he shall determine all questions in relation to said work and
the construction thereof, and he shall in all cases decide every question
which may arise relative to the fulfillment of this contract on the part
of the said contractor, and his estimate and decision shall be final and
conclusive upon said contractor ; and in case any question shall arise
between the parties hereto touching this contract, such estimate and
decision shall be a condition precedent to the right of the party of the
second part to receive any money under this agreement/' '
448. Provision that Certificates Inconsistent with Terms of Contract
may be Rejected.
Clause: "And provided further that nothing herein contained shall
be construed to affect the right hereby reserved of the said commis-
sioner to reject the whole or any portion of the aforesaid work should
the said certificates or any of them be found or known to be inconsist-
ent with the terms of this agreement or otherwise improperly given." *
449. Provision that Certificate shall not Preclude City or Board from
Showing True and Correct Amount and Character of Work.
Clause: "And it is hereby expressly agreed and understood by and
between the parties hereto that -the said parties of the first part, their
successors and assigns, shall not, nor shall any department or officer of
the city of New York, be precluded or estopped by any return or certi-
ficate made or given by any engineer, inspector, or other officer, agent,
or appointee of said Department of Public Works or of said parties of
the first part, under or in pursuance of anything in this agreement
contained, from at any time showing the true and correct amounts and
character of the work which shall have been done and the materials
which shall have been furnished by the said party of the second part or
any other person or persons under this agreement, nor from at any time
withholding payment of the several sums herein specified until the
said party of the second part, when thereunto required on behalf of
the said city, shall make and furnish sufficient and independent proof
of the quantity and quality of 'the work and materials done and fur-
nished under this agreement."'
450. Meaning of Clauses Reviewed. —Taken separately or together these
* Hartupee v. Pittsburg, 97 Pa. St. 107 ^ Stipulations used by Department of
[1881]. Public Woiks, New York City.
*8ee Sees. 4^3-469. infra. -
§ 453.] CONTRACT STIPULATIONS. 397
are interesting stipulations, that have been adopted by aqueduct commis
sioners, dock and public works departments of New York City, who are
believed to be the authors of them. It should be observed that it is first
provided that the engineer's estimate and decision on every question shall be
final and conclusive on the contractor and a condition precedent to his right
to receive any moneys under the agreement. The engineer's decision is not
made final and conclusive on the board or city, but by a later clause tlie right
is expressly reserved to reject the whole or any part of the work if the engi-
neer's certificate be found inconsistent with the contract or otherwise improp-
erly given. By another provision neither the city nor any officer thereof is to
be precluded from showing the true and correct amounts and character of the
work and materials furnished by the contractor, nor from withholding psiy-
ments therefor until the contractor shall furnish independent proof of the
quantity and quality of work and materials furnished.
451. Work Instead of Certificate is Rejected when Engineer has Gone
Wrong. — Secondly, it is expressed in terms, what is often held by the
courts, viz., that the engineer, architect, or arbitrator must render a decision
which is consistent with the terms of the contract of submission ; but the
stipulation goes further, and imposes a penalty upon the contractor by re-
jecting his work, if the certificates be found inconsistent with contract or
are improperly given. For the wrongful act of the engineer the contract
imposes a penalty upon the contractor, which is manifestly unjust unless he
has influenced the engineer's acts. The contractor has no control over the
engineer, who is the employee of the city, company, or owner, yet the rejec-
tion of his work may depend upon the engineer's acts or misdeeds, without
regard to who instigated them.
452. Stipulation Holds Contractor to Terms which City Expressly Repu-
diates.-^—Thirdly, the contract reserves to the board, city, or owner the right
to show the true and correct amounts and character of work and materials,
which right it expressly denies to the contractor. It establishes a tribunal
for the contractor which it expressly repudiates for the city. By its terms
the contractor agrees to abide the decision of a man in whom the board or
city confessedly have not the confidence which they require the contractor
to repose in him, although it employs him, holds him its agent, and retains
him in its control.
453. Contractor to Prove His Claims if City be Dissatisfied with En-
gineer's Estimates. — The right which the city retains to dispute the quanti-
ties, etc., is expressly denied to the contractor. Nor is this all; the contract
requires further that if the engineer neglects, fails, or refuses to perform
his duties, or performs them in a fraudulent and dishonest manner, that
then the contractor's payments for work done and materials supplied may
be withheld until he shall have furnished independent proofs of the quan-
tity and quality of the work and materials he has supplied. He first forfeits
his right to show what he is justly entitled to, if it be to the city or board's
398 ENGINEERING AND AliCIIITECTURAL JURISPRUDENCE. [§ 454.
advantage, aiid then he is required to furnish independent proofs of the same,
if the estimates are unfavorable or unsatisfactory to, the city or board/
By such an agreement the elements of an arbitration are wholly de-
stroyed, and the foundation upon which the cases, which uphold the decision
of engineers and architects as quasi-arbitrators, stand is undermined. It
leaves nothing but the contract obligation to bind the contractor, and it is at
least doubtful if his agreement to abide by the decision of the engineer
would be binding and conclusive. In view of the adverse and hostile criti-
cisms of our courts of the clauses cited and discussed in Chapter- XII, one
can imagine with what disfavor these extraordinary and burdensome stipu-
lations may be received.
454. Elements of an Arbitration are Wanting when but One Party is
Bound by Award. — By these stipulations the draftsman has sought to give
greater protection to the board or city without any evident regard to the
burdens, hardships, and injustice imposed upon the contractor. The con-
tractor is required to submit every question and dispute to a 5'?m5i-arbitrator,
by whose award he alone is bound. The essential element of a submis-
sion to arbitration, and by which its legality is affected, is wanting. How can
one party of an arbitration be bound and the other party be free to accept
or repudiate the award ? When the mutual obligation of both parties to
abide by the decision of the engineer is destroyed, the groundwork upon
which nearly all the cases decided, have been sustained, is destroyed. It
ceases to be a tribunal, and the whole discussion of Chapter XII and Chap-
ter XIII (Sees. 335-417) is opened and reviewed.
Whether or not the clauses will be sustained, and the contractor alone
be bound by the engineer's decision, will depend upon whether the courts
regard the engineer as a quasi-^vh\iv'dior, as he is looked upon in the great
majority of cases, or whether he is regarded as the agent or impersonation
of the city, company^ or owner.'
455. Agreement Savors Strongly of Injustice and Oppression. Obligation
is Not Mutual. — The obvious intent is to make the engineer's estimates and
decisions conclusive upon the contractor, and to leave the city (or, better say,
its officers) free to accept or repudiato the engineer's estimates and deter-
minations as it (they) will, to question the accuracy of his estimates and the
justice of his decisions and to appeal them to our courts for trial, which
trial is denied to the contractor. The contractor is required to submit un-
qualifiedly to the determinations of the of the city's paid servant and
agent, which the city itself and its officers refuse to trust. Such a con-
* The author has used he words "unfa- cision of the engineer is against the interest
vorable and unsatisfactory" here; and be- of the city or at vari;mce with the board's
lieves that he is justified in so doing, for understanding and wishes, that such deter-
nearly all the trouble arising in such cases minations are repudiated,
comes from disagreements as to the mean- ^ See Rangers, (xt. Western R Co., 5 H.
ing and intent of the contract, which often of L. Cas. 72 ; Williams v. Chicago, etc.,
is ambiguous ; and it is only when the de- R Co., 112 Mo, 463.
§ 457.] CONTRACT STIPULATIONS. 399
tract contains all the objectionable elements by reason of which courts
have refused to enforce such stipulations. The contract is to the satisfac-
tion of one of the parties to the contract, or of an agent whom the city
retains the right to control and direct, to employ and to discharge. He
may be the agent, mouthpiece, and tool of the city or its officers, elected
or appointed, and his determination is to all intents and purposes that
of the city itself. The contract obligations, therefore, are not mutual.
456. Some Reasons why Stipulation should not be Favored, or Upheld
Even. — In view of what has preceded, it will be difficult to see how the
stipulations can be sustained except upon the theory of a condition prece-
dent. If adopted in certain states and if decisions already rendered were
followed, they would certainly be fruitful of trouble and litigation, which
ivould be expensive to both parties, and in which the contractor would prob-
-ably have the best of the fight. Clauses so manifestly unjust, burdensome,
and arbitrary, imposed by men acting for and in behalf of a justice-loving,
fair-minded public, should not be upheld wherever and whenever the test is
made one of jurisprudence, equity, or precedence.
The power to impose such restrictions and conditions in a contract for
public work, required to be advertised and let to the lowest bidder, assumed
by public officers without authority, is directly in contravention to the spirit
and letter of the laws, charters, and constitutions of our public institutions,
requiring open and honest competition before contracts for public work shall
be awarded.
Conditions and stipulations so onerous and unfair, and so needless and
useless, so tyrannical and arbitrary, might well be regarded as an additional
burden imposed upon the people or property, paying for the improvement,
without authority or reason.* By adopting them the officers of the
city have assumed to increase the burdens, and therefore the taxes of the
-city, without authority, precedent, and almost without following. Bur-
dens, contingencies, and possibilities are put upon the contractor, or
bidder, which no reasonably careful and honest man would undertake,
except at a price far above the actual value of the work. The reserva-
tion of such privileges is a warning from men in power to any bidder that
is not in favor, to not undertake the work witjiout providing himself with
the sinews of war, which must be at the expense of the work and therefore
of the city.
457. Stipulations are Not in Favor Elsewhere. When Adopted, they
have been Modified. — That such stipulations are not in good favor is evident
from the fact that many cities of New England which have adopted the
clauses of the New York contract have omitted or modified these clauses so as
to make the engineer's estimate binding upon both parties, excepting a brief
statement as follows, viz. : *' Provided, that nothing herein contained shall be
construed to affect the right hereby reserved of the said Commissioner of
* See Sec. 334, supra.
400 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 458.
Public Works to reject the whole or any portion of the aforesaid work,
should the said engineer's certificate be found or known to be inconsistent
with the terms of this agreement, or otherwise improperly given." * What-
ever right the commissioner would have to reject and not pay for work
would depend upon the rights reserved iu other parts of the contract, but
the right to repudiate unauthorized acts of the engineer the law reserves, and
any acts or errors on his part which would imply bad faith or fraud entitle
the owner or commissioner to the protection of the courts in any case, and
under any stipulation. The clause as recited above would give no unusual
privileges, and the question whether the certificate was or was not consistent
with the terms of the contract, or had been improperly given, would become^
a question for the courts, and depend upon whether it was according to the-
contract and was free from fraud, collusion, or such gross mistakes as would
necessarily imply bad faith.^
Whether work could be rejected which itself conformed to the contract
and specification merely because the certificate was inconsistent may well b&
doubted.
468. The Clauses have Found Little Favor in the Government Depart-
ments, in other Cities or with Other Corporations. — The clauses have been ia
use for some years by the aqueduct commissioners, public works and deck
departments of the .City of New York, and were adopted wholesale by the
village of Newton, Mass., in 1890, in the contract for its water works.
They have not found sufficient favor to be adopted in other cities in New
York State, in the United States, in Canada, or in Great Britain. The-
cities of Boston, Providence, Chicago, Cincinnati, Indianapolis, Kansas City,.
St. Louis, St. Paul; Toronto, Canada; Liverpool, London, and Manchester,
England; the commercial, manufacturing, and railroad companies of the
country; the Supervising Architect of the United States and the U. S.
Army Engineers, the World^s Columbian Exposition; the public works de-
partments of Canada, England, or India, have not seen fit to adopt them.
In fact, if these clauses as used by the various departments of the City of
New York have inherent superiority or special strength, it must be in con-
sequence of some conditions or circumstances peculiar to the city herself, or
that is peculiar to the administration of the courts [laws] of the state. The
various departments of other corporations, cities, states and governments
have not discovered the necessity nor propriety of adopting them, notwith-
stjinding thousands of printed copies have been distributed throughout the
countries.
The contract form adopted by the departments of engineering and
public works for work on the New York State canals provides that state
engineer and surveyor and division engineer shall finally and conclusivly
1 Semble, O'Brien v. Mayor, 15 N Y. Siipp. 525, 139 N. Y. 543. cases cited.
* Providence; Massachusetts Metropolitan Sewerage Commission; Boston Water
Works ; St. Louis.
§ 460.] CONTRACT STIPULATIONS. 401
decide questions of quantity, prices, etc., subject however to the revision of
the canal board, as provided hy laiu. The right to revise or review the esti-
mates of the engineer is sometimes reserved, more frequently of late tlian
formerly, where the engineer is a public official, perhaps elected or appointed,
and therefore susceptible to political influence. The right to revise has
been reserved to a railroad president.'
459. Modified Forms of the New York Clauses are in Use. — The 1891
contract for branch sewers of the City of Philadelphia (but not for main
sewer), requires "the work to be done to the satisfaction of the director
[engineer], and that all materials and work shall be subject to the inspec-
tion and approval of the director " [engineer], which would probably be in-
terpreted to his reaso7iahle satisfaction and approval. The contract also
contains the following clause :
" It is further expressly understood and agreed by and between the
parties hereto, and is hereby made part of this agreement, that nothing
contained in this contract or in the specifications hereto attached shall
be taken or construed to preclude the said party of the first part from
contesting the estimates or certificates of any officer of the City of
Philadelphia, or the claim of the said part. . . of the second part under
this contract, or under such estimate or certificate, but the said party
of the first part shall be at full liberty to take every legal defense to the
character, quality, and quantity of the said work and materials, and to
the time and manner in which the same shall be furnished and done,
notwithstanding the certificates or approval of any officer of said city,''
which is equitable and proper, since there is nothing in the contract whicli
attempts to take away the same right and privileges from the contractor.
460. Cases Decided where New York Stipulations were Used. — So far as
the author has been able to learn there is no case which has fairly and
squarely decided that a contract stipulation which makes the engineer's
estimate and decision final and conclusive upon the contractor alone, should
be upheld. The case of O'Brien v. New York ' is sometimes cited as
authority for such a statement, but it falls far short of it. In this case the
question of the finality and conclusiveness of the engineer's decision upon
the city was not determined nor questioned.
The claim of the contractors was for extra work in express contradiction
to the terms of the contract, and the subjects herein discussed were not the
questions which determined the decision. The case decided (1) that an
engineer is confined to the express terms of his contract ; (2) that the
withholding of the engineer's certificate is immaterial when the contractor
has received all that is due him ; (3) that progress certificates do not affect
the final certificate when final certificate is to be conclusive ; ^ (4) that no
J Gonder t). Berlin Branch R. Co.. 33 [1893]; s. c, 139 N. Y. 543 [1893]; 142 N..
All. R"p 61, 171 Pa. St. 492 [1895]. Y. [1894],
2 O'Brien v. Mayor, etc., of New York, ^ See also Gow^ex v. BGvVmBv.B.. Co., Ml.
15 N. Y. Supp. 520 [1891]; s. c, 65 Hun Pa. St. 492 [1895J.
112 [1892]; on appeal, 35 N. E. Rep. 323
402 ENQINEEEINQ AND ARCHITECT UllAL JURISPRUDENCE. [§461.
recovery can be had for extra work unless ordered as required by the con-
tract ; (5) that the contractor should refuse to do work ordered which is
not included in contract ; (6) that the city is not liable to contractors for
mistakes of engineer in giving erroneous lines and levels, even though he
be an agent, servant, or officer of city ; (7) that the circumstances existing
at time of and which led to the passage of a statute may be considered in
giving it a construction, and in construing the provisions of a contract made
under it/
461. Right to Revise Estimates or to Require Work to be Done Accord-
ing to Contract, Though Certified by Engineer. — When the contract not only
omits to make the engineer's certificate binding on the city, but elsewhere
provides that neither the commissioners nor any department officers of
the city shall be precluded by any return or certificate of the engineer from
showing the true amount of work done, it is safe to say that the city would
■not be held bound by engineer's estimate if they could show that the
engineer's returns were wrong.' If the city or its officers should fail to
<3xercise their power of revision . or to show the true and correct quantities,
and the certificate was held conclusive on the contractor, it should likewise
1)0 held conclusive on the city or owner.'
In Nebraska it has been held that " when payments are to be made on the
•certificate of the architect that the work has been done in strict accordance
with the drawings and specifications, and that he considers the payments
Justly due," and it is further provided " that said certificate, however, shall
in no way lessen the total and final responsibility of the contractor, neither
^shall it exempt the contractor from liability to replace work, if it be after-
wards discovered to have been done ill or not according to the drawings and
specifications either in execution or materials,'' was an agreement that the
• certificate of the architect should not be conclusive, and that the owner was
not estopped by payments on such certificates from claiming damages
Jbecause poor materials and defective work were furnished.*
462. Practical Working Effect of the Contract Stipulation. —The practical
effect of these stipulations where they have been used does not seem to have
l)een all that was anticipated. Certainly New York City has furnished her
full share of scamping scandals in the past twenty years, and the litigation
has been almost unparalleled. The hardships to which her contractors may
» O'Brien v. Mayor of New York, 139 N. Co.. 171 Pa. St. 492 [1895]. This case de-
Y. 548; many cases cited. cides nothing as to whether decision of
2 O'Brien ■». New York, 189 N. Y. 543 engineer would be conclusive or not con-
£1898]. Another feature of O'Brien v. elusive, but it seems to have been a fore-
JMii3'or of New York is that they sued the gone conclusion with the court that it was
•city of New York when the contract was final and conclusive, and that the presi-
«nade under a special power conferred by dent could review and revise the engineer's
!ihe legislature, and the aqu duct com- estimates, as provided by the contract,
tnissioners and engineers who had ordered See alno Consaul «. Sheldon, 85 Neb. 247
the extra work were held not the agents of [1892].
the city. « Oonsaul «. Sheldon, 35 Neb. 247 [1893],
'^Semble, Gonder v. Berlin Branch R.
§ 466.] CONTRACT STIPULATIONS. ' 403
have been subject, under the contract terms employed, were enough to drive
a contractor to dishonest practices, litigation, and desperation.
463. Provision that Inspection and Approval shall not Relieve Contractor
from his Liability to Furnish Proper Work and Materials.
Clause : " It is further agreed that the inspection or approval of the
engineer, or his agents, or assistants, of all or any of the work during
its construction, shall not relieve the said contractor from tlie full
responsibility of doing the work required by the conditions of this
agreement." *
464. Provision that Progress Certificates shall not Relieve Contractor
from Liability for Poor or Defective Work and Materials.
Clause: ^* And it is hereby further expressly provided that the grant-
ing of any progress (or final) certificate, or the payment of moneys there-
under, shall in no way lessen the liability of the contractor to replace
bad or defective work, though the same may not have been detected at
the time such certificate was given or acted upon."
465. Provision that Progress Certificates are Made Subject to Revisioa
and Correction in Final Certificate which May be Made without Notice
to Parties.
Clause : "It is further expressly understood and agreed by and
between the parties hereto that the action of the engineer or surveyor
by which the said parties [contractor] are [is] to be bound and con-
cluded according to the terms of this contract, shall be that evidenced
by his final certificate ; all prior certificates upon which partisil pay-
ments may be made being merely estimates, and subject to the correc-
tion of such final certificate, which final certificate may be made without
notice to the contractor thereof, or of the measurements upon which the
same is based." f
466. Provision that Contractor shall be Responsible for Protection and
Preservation of Permanent and Temporary Works and Materials, and the
Engineer's Inspection, Approval, or Certificate, shall not Relieve Contractor
from Doing his Work Properly and Completely.
Clause: "From the commencement of the works to the completiotr
and acceptance of the same the care of the whole of the permanent
works, and of the whole of any temporary works until their removal,,
shall remain with the contractors, and they shall in every respect be
held responsible for all accidents from whatever cause arising, and
chargeable for anything that may be stolen, removed, or destroyed,
to whomsoever belonging, and they shall also replace and make good
all loss, injury, damage to, and all defects in the said works, or prem-
ises, or to the adjoining or other buildings, premises, and property,
from bad or insufficient materials, bad workmanship, or any other
cause whatsoever, and whether such damage or defects were occa-
sioned by the negligence of the contractors, or their agents, or ser-
vants, or not, or may be or might have been discovered during the
*See Sees. 331, supra, and 482, infra. f See Sec. 482, infra.
404 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 467.
progress of the works or in consequence thereof, or may be or might
have been prevented, or shall appear or be known after the completion
thereof, or whether payment may wholly or partially have been made,
or the works approved as supposed to have been properly done; and
no cert^hcate or approval of any works by the engineer or any other
officer of the city shall affect or prejudice the right of the city against
the contractors, or be considered or held as at all conclusive as to the
sufficiency of any works or materials."*
467. Contractor's Liability for Defective "Work and Materials which
Have Been Inspected, Approved, and Certified.— These clauses are inserted
in construction contracts to settle between parties the question as to the
liy-bility of the contractor wheu work has been undertaken, completed, and
accepted under the direction, supervision, and final approval of an engineer,
architect, or inspector of the owner, city, or government, then can the con-
tractor be called to account for poor materials, defective work, or for
injuries resulting from the same?
In an English case where a railroad company had entered into a contract
Jor the manufacture and delivery of rails, the inspection, testing, and
approval of the work was stipulated for by the engineer, and it was also
expressly provided that such approval should not in any way relieve the con-
tractor from the condition and stipulations contained in the specifications
us to the materials, work, and tests. Power was given to the engineer to
reject any rails or fish-plates he disapproved on any ground whatever, and
his decision on any points of doubt or dispute were made final and binding
on the parties. It was further provided that the inspection of the engi-
neer should not in any way commit the company to the approval and
-acceptance of rails which were not in strict accordance with the specifica-
tions and plans. The rails were found defective after they had been
delivered, paid for, and half of them laid, and it was held that the com-
pany could not recover from the contractor, but that the acceptance of the
engineer was conclusive.*
If inspectors are clothed with the authority usually bestowed upon
engineers in construction contracts, and the work or structure has been
accepted and the contract fully executed, and there has been no fraud prac-
ticed by the contractor, it seems pretty well settled that the owner or com-
pany can have no recovery against the contractor for defective work or
materials.'
If under a contract to make the excavations for a building under the
J The D. & W. Co. v. Hopkins, 36 L. T. 505, water works; Adams v. Hill, 16 Me.
Rep. 7;^3 [1877]. 215 [1839] ; Board v. Newlin, 31 N. E.
'^ Price V. Chicago R C)., 38 Fed. Rep. Rep. 465, grading; People v. Syracuse, 20
304, grading; Vulcanite Co. -». Traction N. Y. Supp. 236, a sewer; Trustees v,
Co., 8 Atl. Rep. 777, paving; Omaha v. Adams, 11 Scotch Sessions Cases 326, a
Hammond, 94 Fed. Rep. 98 [1877] ; Coon structure ; comra, Dhrew v. Altoona, 121
®. Citizens' W. Co. (Pa.), 25 Atl. Rep. Pa. St. 414.
* Care should be taken not to create a tenancy. See Sec. 767, infra.
§ 468.] CONTRACT STIPULATIONS. 405
instructions of an architect the work is done as required by the architect
^nd to bis approval, whether in conformity to the drawings made or not, it
is performed/ *
Therefore in a case where the contract stipulated that the machinery of
;a steamboat should be of the best material throughout and the workman-
ship first class, and the steamboat company was to furnish a suitable and
competent person to superintend the construction, with the right to re-
ject anything not equal to the requirements of the contract, and inspect
the work, and every facility was afforded him to inspect the work and
materials at all times: After the boat was completed, delivered and accepted,
Ihe straps of the starboard walking beam gave way and caused serious injury,
and it was held that the damage was due to the negligence on the part of the
steamboat company's agents, and there could be no recovery.' Another case
in point' held that when a company has furnished plans and specifica-
tions to the contractor, and has accepted the work after seeing it in prog-
ress and completed, it could not recover from the contractor the money
paid him because the work proves defective and injury results. This
•contract was for the construction of a wharf which afterward gave way.
"When a contract to build a bridge required the county commissioners, if
they had a superintendent, and would exercise their privilege of inspec-
tion, to be present as materials were furnished or labor expended, and pass
upon them, it was held that, where the superintendent was present, watch-
ing the progress of the work, and it was done pursuant to bis directions,
^nd in substantial compliance with the plans, the commissioners waived
their right to pass on the workmanship and materials, and their right to
condemn either, unless there was collusion between the contractor and the
•superintendent.*
It has been held that t\\Q final certificate may be withheld upon the dis-
covery of defective works subsequent to payments on progress certificates.*
When work has been rejected as deficient, the architect, it seems, cannot
arrange that the work shall be accepted and the deficiency made good to the
company.' f
468. Materials and Work Inspected and Approved by Inspectors. — When
the decision of architect or inspector is not made binding on the parties,
it has been held that his acceptance of inferior materials will not bind
the owner nor relieve the contractor from performing his agreement in
strict conformance with the contract.' If work has not been accepted the
» Smith 1). Farmers' Trust Co. (Iowa), 66 (Tex.), 25 8 W. Rep. 1122; but see mch&vd-
N. W. Rep. 84. son v. Mahon, L. R. 4 Ir. C. P. 486 ; Cooq
2 Potomac Steamboat Co. -». Harlan «& v, Citi/eiis' Water Co., 152 Pa. St. 644.
Hollingsworili Co., 66 Md. 42 [1886]. * Cooper v. Uttoxeter Bur. Bd., 11 L. T.
3Be.swick v. Piatt, (Pa.) 21 Atl. Rep. N. S. 565.
306 [1891]. BBarcus v. Hannibal, etc., Pk. Rd. Co.,
"Board of Com'rs tj O'Conner (Ind.), 26 Mo. 102
35 N. E. Rep. 1006 ; Wright v. Meyer ' Giauciis v. Black, 50 N. Y. 145 [18721
* See Sees. 381-390 and 446, supra. \ See Sees. 370, 381-390, supra.
406 ENGINEERIISO AND ARCHITECTURAL JURISPRUDENCE. [§ 469.
payment of progress certificates will not constitute a waiver of defects in.
quality which were not apparent from inspection/ * If the contractor be sub*
ject to the directions of the engineer in charge as to the quality of materials,
furnished and the manner of doing the work, he is not responsible for
defects of the work as a whole if he has complied with the engineer's direc-
tions." t Third parties, as property owners, are not bound by the inspection
and acceptance of work by inspectors and engineers in whose judgments
they have acquiesced when the defects are not such as are revealed by actual
tests only.'
The courts of Nebraska have held that under a clause frequently^
employed in construction contracts, which provides that '^the engineer's,
certificate shall in no way lessen the contractor's final and total liability or
exempt him from liability to replace work afterwards discovered to have-
been ill done," the owner might recover damages for the use of poor
materials and defective workmanship,* notwithstanding he had made pay-
ments on the engineer's (progress ?) certificate. %
469. Defects Concealed by Fraud or Connivance. — Whetlier the fraudulent
acts of a contractor in concealing defects would permit a recovery after
acceptance may well be doubted. There are numerous cases that employ
language that intimates that a recovery can be had.^ Some frequent expres-
sions with courts are as follows: "That the settlement having been made-
without any false or fraudulent representations of the contractor," ' "in the
absence of fraud or gross mistake," ' or " the contractor liaving acted in
good faith," " then the city or owner cannot recover back money paid- for
work that has been inspected and accepted by engineers. The cases are
extremely rare where an actual recovery by the owner has been had in the
courts on account of fraud on the part of the contractor, though there are
many cases with dicta that recovery cannot be had if there is no fraud or
deceit.
Poor materials and work are often, if not usually, the result of the^
arbitrary and willful intention of contractors to save themselves expense^
and should not be a matter of much difficulty to prove. §
» Hartupee v. Pittsburgh. 97 Pa. St. 107; Ice Co. v. Joyce (C. C. A.), 63 Fed. Rep..
Van Buskirk v. Murden, 22 111. 446; Estep 916.
t>. Fenton, 66 111. 467; Trustees v. Brad- ^ Q{ty of jq-asbville«>. Sutherland (Teun.)».
field. 30 Geo. 1; Korf v. Lull, 70 111. 420 29 S. W. Rep. 228.
[1873]; O'Brien v. Mayor, 139 N. Y. 543 * Consaul v. Sheldon, 52 N. W. Rep.
[1893] ; GoudertJ. Berlin Br. R., 171 Pa. St. 1104; Trustees ®. Bradtield, 30 Geo. 1.
492 [1895]; and see Barton v. Herman, 11 «* Boettler v. Teudrick, 11 S. W. Rep..
Abb. Pr. 379; Morgan v. Birnie, 9 Bine. 497.
672; Westwood v. Sec'y of State, 11 W. R. « Ayr. Road Trustees v. Adams, 11
261; and see Veazie «. Bangor, 51 Me. 509; Scotch Sessions Cases 326.
and la'ge v. Bossieux, 15 Gratt. 83. ' Brady v. New York, 30 N. E. Rep.
2 In re Freel (Sup.), 38 N. Y. Supp. 143; 757.
but see Wis. Red Brick Co. v. Hood (Minn ), s Q'Dea v. Winona 41 (Minn.) 424 [1889J.
69 N. W. Rep. 1091; and see Charlestown
*8ee Sec. 701 , infra, f See Sees. 256, 388, supra, and 701, infra. XSee Sec. 417, suprob,
§ See Sees. 120 and 121, for effect of coucealmeut or fraud on the statute of limitations.
§ 469.] CONTRACT STIPULATIONS. 407
In an action to recover damages for the breach of a contract to build the
foundation of a house it appeared that two stone piers were so defectively
built that it was necessary to rebuild them, and that the walls were other-
wise faulty. Plaintiff had paid the contract price before discovering the
defects, which were not apparent. It was held that a contention that,
having negligently paid the money without examination, plaintiff cannot
recover it, is untenable, since the doctrine applies only to defects which are
apparent.* The failure of the owner's architect and superintendent to object
to work done under the contract does not show acquiescence in such work
as in the use of laths wider than those specified in the contract, in the
placing of them too near together, and the failure to press the morter so as
to form a proper key.'
1 Barker v. Nichols (Colo. App ), 31 ' Monahan v. Fitzgerald (111. Sup.), 45
Pac. Rep. 1024; see also Carter v. James, N. E. Rep. 1013; and see McUen u. Ford,
13 M. & W. 713; Hewlett v. Tarte, 10 C. B. 28 Fed. Rep. 639.
(N. S.) 826.
CHAPTER XVI.
ENGINEER S OR ARCHITECT'S CERTIFICATE.
ITS FORM, SUBSTANCE, Al>iB REQUIREMENTS. CORRECTION OF ERRORS IN
CERTIFICATE OR ESTIMATE. CERTIFICATE AND ESTIMATE MADE WITHOUT
NOTICE TO PARTIES.
470. Provision that Right to Recover and Liability to Pay for Work shall
be Conditioned upon Procuring the Engineer's Certificate.
Clause: "It is hereby further expressly agreed and understood by
and between the parties to this agreement that no payments shall be
due to or demanded by the contractor, nor shall the owner, company,
or city be in any way liable to pay or be in any way indebted to the
contractor for any sum or sums of money for work done or materials
furnished under this contract, or on account of, or in connection with,
this contract, or growing out of the construction or completion of the
works undertaken, whether by reason of alterations, deviations, addi-
tions, omissions, or otherwise, except, unless, and until the engineer
shall have measured and estimated the same and shall have certified in
writing and under oath that the same is due under the contract, and
that the work and materials are to his satisfaction and acceptance and
according to the plans and specifiations forming a part thereof. '^
471. Provision that an Itemized Account and a Personal Inspection shall
he Made. Certificate to be Subscribed and Sworn To.
Clause: '^ Provided always that the contractor shall obtain from
the said engineer or architect an itemized account, and estimate of
the work done and materials furnished, and a certificate, subscribed
and sworn to, that he has made a personal inspection of the works, and
that he considers the amount rendered correct and the amount certi-
fied is properly due under the terms of the contract, plans, and speci-
fications, which certificate shall be a condition precedent to any liability
on the part of the owner, company, or city to pay."
472. Provision Making Engineer's Certificate a Condition Precedent to
the Owner's Promise to Pay.
Clause: "And the said party of the first part does hereby, for him-
self and his heirs, executors, and administrators, covenant, promise,
and agree to and with the said party of the second part, his heirs, etc.,
that he shall and will, in consideration of the covenants and agree-
ments herein described being strictly performed and kept by the said
party of the second part as specified, will and truly pay, or cause to be
paid, unto the said party of the second part, his heirs, etc., the sum
of dollars in lawful money of the United States of America,
408
§ 473.] CONTRACT STIPULATIONS. 409
in the following manner ; provided that in each of
the said cases a written certificate signed, dated, and sworn to before an
authorized magistrate, shall be obtained from the said engineer or
architect, or other engineer or architect for the time, being employed
by the said party of the first part, that the said contract work has been
performed in strict accordance with this agreement, and has been so
far completed as to entitle and justify the payment of the sum named
in each case." »
473. The Engineer's Certificate: Its Form and what It should Contain. —
When the engineer's certificate is a condition precedent to payment to the
contractor, a question that frequently arises is, " What is a good and suf-
ficient certificate ?'' The answer is usually to be found in the contract. If
the parties have failed to prescribe any particular form or to require the
engineer to certify to certain facts, then almost anything that the engineer
may render as his certificate will answer the purpose. It has been held that
it need not be in writiug, but is sufficient if verbally declared that the work
has been completed to his satisfaction,^ and the fact that the submission
is in writing does not require the award to be so,'"* nor is parol evidence
admissible to show that it was the intention of the parties to have a written
approval."
The certificate need not state the amount due if it certifies to the final
completion of the work,* or that the amount is due.^ It is not necessary
that the estimate and decision be made under oath,* nor that it be signed,
though it be made in writing,' nor that it be delivered or transmitted by
the engineer or arbitrators who made it.® It must be the certificate of the
engineer, and if subscribed must be signed by himself and not by his
assistant." The certificate need not state that the work has been according
to the plans and specifications unless the parties have stipulated for such a
formality in the contract." *
In the absence of a provision in a contract, the date to be inserted in the
certificate was held to be within the discretion of the engineer. That
where there was delay in beginning the work, the engineer might properly
refuse to date his certificate back to the date of the contract."
1 Roberts «. Watkins, 33 L. J. (N. S.) ler, 1 Barbour 325 [1847] ; and Witz v.
0. P. 291 [1863]; s. c, 14 C. B. (N. S.) Tregallas (Md.). 38 Atl. Rep. 718.
592 ; Gates v. Bromil, 1 Salk 75 ; Russell « Monongabela Nav. Co. v. Fenlon, 4 W.
on Arbitration (2d ed.) 1242 ; Gubbins v. & S. 212. See also Payne v. Crawford
Lautensclilager (C. C), 74 Fed. Rep. 160; (Ala-.), 10 So. Rep. 911. accord.
Kirk V. Bromley Union, 2 Phill. 640. •» Malone v. P. & R. Co , 157 Pa. St. 430.
' Godel V. Raymond, 27 Vt. 241 [1855]. 8 McMillan v. Allen (Ga.). 25 S. E. Rep.
"Union Stove Works v. Arnoux, 28 N. 505; but see Anderson v. Miller (Ala.), 19
Y. Supp 23 ; and Lloyd's Law of Building So. Rep. 302, where submission stipubited
(2d ed.) § 21. a personal delivery.
* Pashby v. Mayor of B., 18 C. B. 2. » Mclntyre v. Tucker, 25 N. Y. Supp. 95.
** Wyckoff V. Meyers, 44 N. Y. H3 '<> Downey v. O'Donnell, 92 111. 559
[1870] ; hut see Flannery v. Sahagian (N. [187!)].
Y. App.), 31 N. E. Rep. 319, contra, for " State v. Frazier (Ind.), 14 N. E. Rep.
an award, and see in point Mayor v. But- 561 [1888].
* See Sec. 503, infra.
410 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 474.
Any certificate or estimate that is made by the engineer and which is
accepted and treated by the parties as suflBcient will justify payments by
the company and will hold against the surety of the contractor/ A promise
to pay for work on the approval of an engineer has been held to require na
certificate at all, in view of the fact that the engineer had visited the worka
every day, and that the owner did not deny that the engineer approved
the work as done.'
To constitute a certificate given by the superintendent of work a final
one, it is not essential that it be therein declared to be such. If apparently
in balance or satisfaction of all claims, it is sufficient.' On the other hand>
the last monthly estimate is not the final estimate, so as to give the con-
tractor the right to recover percentages retained and payable only after
final estimate, if the last monthly estimate was not final in form but similar
to prior monthly estimates.* In such a case the company may show that a
final estimate has been made by the engineer, fixing the quantity, character,
and value of work done, and the amount due therefor.' It seems that the
engineer determhies which is his final estimate, and not the company nor
the contractor."
474. Certificate must be Made and Executed in Strict Conformity with *
the Requirements of Contract. — A written certificate which recites that
"there is now due to " the contractor " the final payment on his contract,"
naming the amount, has been held a compliance with a provision that the
architect shall certify in writing that all work has been to his satisfaction.*'
A cei'tificate reciting that a certain number of miles of track have been laid,
that trains have been run over the same, and that it is in condition suitable
for traffic, is not sufficient to entitle the contractor to recover payments due
only when each mile of track was fully completed, and "on the certificate of
the chief engineer that a certain number of miles named are completed
ready for the rolling stock." ' Under a submission to arbitration, an award
for a certain sum less an allowance for hauling 620 staves, without naming
the amount to be deducted, is void for uncertainty."
Certificates by engineers have been held sufficient when they have cer-
tified to the satisfactory completion of a job except certain minor details to be
finished or repaired. A letter to the owner stating that a structure was
completed except some planking which could not be done until low water,
» Finney v. Condon, 86 111. 78 [1877]. ' Snaith v. Smith. 27 K Y Supp. 379 ;
• Union Stove Works v. Arnoux, 28 N. Baumister v. Patty, 35 Wis. 215 ; Wyckoff
Y. Supp. 23. r. Meyers. 44 N. Y. 143 : Mercer v. Harris,
8 Rousseau v. Poitras, 62 111. App. 103. 4 Neb. 77 ; Bloodgood « Ingolsby. 1 Hiit.
• Gonder v. Berlin Br. R. Co.. 171 Pa (N. Y.) 388 ; and see Stewart v. Keteltas, ^
St. 492; Beharrell v. Quimby (Mas«.\ 39 36 N. Y. 392; and Barney v Giles, 120
N. E. Rep. 407 ; Gay v. Haskins, 31 N. Y. 111. 154.
Supp. 1022 : hut see Weeks v. Little, 47 N. « Perkins v. Locke (Tex ), 29 S. W. Rep.
Y. Super. Ct. 1. 1048.
5 Gonder v. Berlin Br. R. Co., 171 Pa. » Parker «. Eggleston, 5 Blatchf. (Ind.)
St. 492 [1895]. 128 ; see also Zerger v. Sailer, 6 Binn. (Pa.)
• Gonder v. Berlin Br. R. Co., supra. 24 ; In graham v. Whitmore, 75 111. 24.
§ 475.] CONTRACT STIPULATIONS. 411
that he was willing to accept the structure as it stood, advising the owner
to retain a certain amount to insure its completion, has been held a sufficient
certificate to entitle the contractor to recover the price less an amount suffi-
cient to complete the planking.
Payments made repeatedly upon certificates of a peculiar form with-
out objection may effect a waiver of the provision of the contract
requiring a different form, especially when the objection is first made at
the trial.^ *
475. Certificate must Be Certain as to Amount, and it should Be Complete.
— An award or a certificate must be certain as to the amount to be paid. It
need not state the precise amount in figures, but it is sufficient if it describes
the means by which the amount can be ascertained, as by measurement, e.g.,
a survey,^ or an arithmetical calculation.*
A certificate that the contractors "are entitled to payment, being the
last payment on contract price for your residence," with a remark that said
payment ** is the same as written in. article of agreement less credits and
credit for defective plastering," was held sufficient to entitle the contractors
to sue for said payment, in the light of a finding by the jury that the con-
tractors were hot liable for the defects in the plastering.* Such certificates
subject to credits or claims of either party are sufficient, it seems, to satisfy
the condition precedent and to admit the contractors to the courts to
determine and enforce their rights. A certificate by the architect that
the subcontractor is entitled to a settlement, but without prejudice to any
claim the builder may have for time lost or work done in carrying out
the terms of the contract, is sufficient to meet the builder^s refusal to
make final payment of the sum due on the ground that subcontractor had
failed to procure the architect's certificate as to the proper performance of
his work.'
An architect may perhaps be justified in making such a certificate
between a subcontractor and a bnilder, neither of whom are bound to pay
him for his time and trouble to adjust their differences, but such a certifi-
cate between the owner and the contractor in which questions and differ-
ences are left open and undecided, would be a breach of professional prac-
tice for which an owner might properly give his architect a well-merited
rebuke. It is essential to the validity of an award by arbitrators that it
should make a final disposition of the matters embraced in the submission,
so that they may not become the subject of future litigation,' and the same
' Washington Bridge Co. t>. Land, etc., " Robinson v. Baird (Pa.), 30 Atl. Rep.
Co. (Wash ), 40 Pac. Rep. 983 ; Mills v. 1010.
Weeks, 21 111. 568. « Grannis, etc., Co. ».. Deeves. 25 N. Y.
'^ Bloodgood V. Ingolsby, supra; Berton Supp. 375, 72 Hun (N. Y.) 171.
V. Hermann, 11 Abb. Pr. N. 8. (N. Y.), ' Ingraham v. Whitmore, 75 111. 24
882 ; Goldsmith v. Hand, 26 Oliio St. 107. [1874], 1 Amer. & Eng. Ency. Law 678,
3 Galloway v. Webb, Hard. (Ky.) 318. note 1.
* 1 Amer. & Eng. Ency. Law 700.
* See Sec. 478, infra.
412 ENQINEERTNG AND ARGHITEGTURAL JURISPRUDENCE. [§ 476.
should hold of the determinations and decisions of engineers and archi-
tects/
The result of making incomplete certificates is illustrated in a case v;h ere
an architect instead of deciding the question, who was at fault in omitt'.iig
the resin which was required by the contract to be put under the floois,
merely credited the owner ''by amount retained until resin filling is prop-
erly put under floors, or until ascertained by whose fault the resin was
omitted." The court held that the owner was not entitled to credit for the
amount unless he proved it was by the builder's fault that it was left out.
and that that was a question for the jury.'
476. Parties Should Agree as to Form and Matter of Certificate. — If an
owner or a company wishes a written certificate, signed and sealed, or the
contractor desires the engineer's estimate and decision to be made under
oath, they must incorporate their intentions in their contract." They will not
be implied, nor supplied by usage or custom. A full statement of account
and estimate by the engineer must be stipulated for by the terms of the agree-
ment or it cannot be required, or made an excuse for nonpayment of con-
tract price. When certain forms are to be followed or certain facts are
required by the agreement to be certified the estimate, decision, or certificate
must be strictly in accordance with the provisions agreed to by the parties.*
Therefore a condition that work shall be paid for '' on receipt of the engi-
neer's certificate that the work was fully and completely finished accord-
ing to the specifications," is not fulfilled by a certificate stating " that the
buildings were finished in such a manner that he would accept them if he
were the owner and that he was satisfied as to the work and materials." '
A promise to pay " on the presentation of a certificate certifying that the
work has been well and truly performed and accepted by him, and that all
damages and allowances which should be paid or made by the contractor
have been deducted," is not a promise to pay upon the presentation of a cer-
tificate that the contractor ''is entitled to a payment by the terms of the con-
tract," but neglects to certify that the work has been well and truly per-
formed and that damages and allowances have been deducted."
477. Instances in which Certificate has been Held Insufiicient. — A mere
order by the architect requesting the owner to pay the contractor a certain
sum " to apply on an account," is not a sufficient certificate under a clause
to pay and be bound by a certificate signed by architect " to the effect that
the work is done in strict accordance with the drawings and specifications
and that he considers the payment properly due." ^ The checking by the
architect of an account of the builder's charges rendered, and the forwarding
» But see Mills v. Weeks, 21 111. 561. ^ Smith ». Briggs, 3 Denio 78 [1846].
« Huckestein v. Kelly & Jones Co. (Pa.), • Barnt^y v. Giles (111.), 11 N. E. Rep.
25 Atl. Rep. 747. 206, 120 111. 154 [1887]
3 Pashby v. Birmingham, 18 C. B. 2. ^ Miohaelis v. Wolf (111.), 26 N. E Rep,
4 See Anderson v. Miller (Ala.), 19 So. 384 [1891] ; Rov v. Boteler, 40 Mo. App.
Rep. 303. 213.
§ 478.] CONTRACT STIPULATIONS. 4ia
it to the owner as the builder's account, has been held not a certificate by th»
architect that tlie work has been done to his satisfaction, nor to amount to a
performance of the condition precedent.'
When the contract required the contractor to present to tlie treasurer a
certificate from the engineer, " stating that he had examined, measured, and
computed the work, that it had been done to his satisfaction, and was com-
pleted, or that payment was due, etc.," it was held that the required certifi-
cate must be in writing, and that it must state that the work had been done
to the satisfaction of the engineer, and that he had examined, measured, and
computed the same, and that payment was due. Therefore a certificate
stating the nature or character of the work and giving the amount, under-
neath which was written "Allowed one-third of the above $521.66," "cer-
tified for the sum of $521.66," signed by the engineer, and certified on the
back of account " I hereby certify that the written account is for [describing^
work], that I have examined the same, and that Messrs
[contractors] are entitled to receive the same," and signed by the engineer,,
was held insufficient to satisfy the terms of the contract.''
Words written in the margin of an award or certificate by .the engineer
in a distinct sentence will become a part of the award and receive the same
construction as if inserted in the body of it.' It is therefore submitted that
the above certificate was not held insufficient because part of it was written
on the back, but because of the omission of necessary data.
A less stringent construction was given to a Wisconsin case, where a con-
tract to make payments only on the production of a certificate setting forth
the amount of stone furnished and its value, and that the same was to the
architect's satisfaction, was in effect satisfied by a certificate of the amount
and value of stone work furnished, stating the value at the contract prices,,
but not stating in terms that the same was to his satisfaction. It waa
regarded as amounting in effect to a certificate that the work was to his sat-
isfaction.*
478. Certificate must Meet Requirements of Contract.* — If the contract
stipulated for a written certificate, the condition must be satisfied by pro-
ducing a written certificate, nor will the mere want of writing give ground
for relief in equity according to the English cases. ^ A formal approval and
acceptance will not suffice when a written certificate is required."
A certificate to be signed by two officers of a city is fatally defective if
' Morgan v. Birnie, 9 Bingham 672 Smith, 27 N. Y. Snpp. 379.
[1833]. ^ Leake's Digest of the Law of Contracts^
^ Aidagh V. Toronto, 12 Ontario Eepts. p. 640, and English cases cited.
236 ! 1886], citing numerous cases. * Sclienk «. Rowell, 3 Abb. N. Cas. 42;
« Piatt V. Smith (N. Y.), 14 Johns. R. Hauley v. Walker, 79 Midi. 605 ; Lamprel
368 [1817]. v. Billericay Union, L. R. :! Excli 283 ;
^ Bannister v. Patty's Exrs., 35 Wis. 216 Russell v. Sa Da Bandeira, 13 C. B. N. S.
[1874] ; accord. Union Stove Works v. Ar- 149; Goodyear ij. Weymoutli, IH. & R. 67 ;
noux, 28 N. Y. Supp. 23 ; accord, Snaith v. and see Roy v. Boteler, 40 Mo. App. 224.
* See Sec. 474, supra.
414 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 479.
signed by one only, and will not entitle the contractor to recover nnder it/
Likewise when an award of three arbitrators is required, an award by two
and a statement by the third that " it was all right " is not sufficient.^ If,
however, the submission provide that the decision of the majority shall be
the unanimous decision of the arbitrators, it will hold if signed by two of
three arbitrators.'
The measurements and computations recorded in the engineer's books
will not satisfy a provision requiring the work to be measured by certain
engineers, and their estimate or certificate to be rendered to the sub-con-
tractor by the contractor, which estimate is to be final and conclusive
between them. Such books may be admitted in evidence of the amount of
work done, but they are not conclusive estimates of the work done or the
compensation to be received."
Under a provision to pay for mason work "when all the works are com-
pletely finished and certified by the architect to that effect," a certificate
that the contractors " have completed the mason work to your building ''
was held sufficient/
479. Certificate Good in Part and in Part Bad. — An award may be
good in part and in part bad. In such a case it is void for so much only as is
bad. By analogy the same principle is applied to the decisions and esti-
mates of an engineer." The fact that some of the orders of an award, to be
performed by the same party, are bad is no reason for holding the party dis-
charged as to those which were properly awarded.'' If the void part can be
readily separated from the valid without doing injustice, the good will be
upheld and the bad rejected; but, if a separation cannot be made readily
and without doing injustice, the whole will be declared void.®
The fact that an engineer has exceeded his contract powers with regard
to one or more items is no ground for excluding the whole estimate or
certificate. That part only should be disregarded as to which the engineer
has exceeded his powers.' If however the award goes beyond the issues
limited by the submission and is therefore in excess of the powers conferred
on the arbitrator [engineer], and the matter in excess cannot be separated
from the residue, then the award will be invalid as a whole."
1 Adams «. The Mayor, 4 Duer (N. Y.) « Leslie v. Leslie (N. J. Ch.). 24 Atl.
295 [1855]. Rep. 319; Lincoln ?). Schwartz, 70 111. 134;
2 Weaver v. Powell (Pa.), 23 Atl. Rep. Jackson u. Ambler, 14 Johns R. 96 [1817];
2070 [1893], cases cited. many cases cited in 1 Am. & Eng. Ency.
3 Witz i). Tiegallas (Md.), 33 Atl. Rep. Law 710-11.
718. , ^ Sanders v. Hutchinson, 26 111. App.
4 Schwerin v. Da Graff, 21 Minn. 354 633; accord Mills «. Weeks, 21 111. 596;
[1875]. Drhew v. City of Altoona, 121 Pa. St. 411.
6 Stewart 'o. Ketaltas. 9 Bosw. (K Y.), 15 Atl. Rep. 636 [1888]; see also South's
261 [1862]. Adm'r v. South, 70 Pa. St. 196.
« South's Adm'r v. South. 70 Pa. St. 195; '» Glade «. Schmidt, 20 Bradwell, 157
Dln-ew v. Altoona, 121 Pa. St. 401-421. [1885]; s. c, 37 111. App. 114; Shrump v,
"< Bouck V. Bouck (Minn), 59 N. W. Partitt, 84 Him (N. Y.) 341; Leslie v.
Rep. 547. Leslie, 53 N. J. Eq. 332.
§ 480.] CONTRACT STIPULATIONS. 415
A supplemental or subsequent award that is bad for not being within the
terms of the submission does not impair the first award made according to
tlie terms of the contract; * but in accepting an award, a party cannot take
the benefits of a part of the award and complain of the illegality of another
part; he must accept the award in its entirety.'
480. Certificate should be Final and Complete when Rendered. — The
tiward may be valid as to the matters submitted and void as to matters de-
cided, but not embraced in the reference.'' If the award be not final, or is
not complete as to all matters submitted, it is void altogether, and not admis-
sible even as an account stated.* If the award refers to certain note or
account books, from which the amount of the award is to be determined,
and such notes or accounts are so incomplete that the amount cannot be
computed without other evidence, then the award is void for uncertainty.^
If certain matters within the submission are not passed upon by the
arbitrator, as when it remains for him to approve a lease of liens, it is not
-a final award. Yet though thfe award be not valid, if the contract still re-
mains in force, the contractor's remedy is open to him whenever a valid
award is made. It has been argued that a failure on the part of the engi-
neer or architect to consider all matters submitted to him was to that extent
a, fraud upon the party against whom the discrimination was made."
481. Certificate as Evidence in Court. — AYhen the acceptance and cer»
tificate of the engineer are made a condition precedent to payment for work,
they are of course admissible to prove completion and acceptance of work.'
The certificate is admissible in a suit to recover for work done, when the
contract provides that the work shall be done subject to the inspection, ap-
proval, or rejection of said engineer.' But a copy of the final estimate,
though in the handwriting of the engineer who made the original, cannot
I)e received from a subcontractor as evidence, there being no proof that the
principal contractor had ever received the original final estimate which he
ivas notified to produce.'
The unsworn statement of an engineer that a paper certified by him is a
true copy of a measurement of work done, made by his predecessor in oflfice,
is not legal evidence.'" Even though the contract make the architect's cer-
tificate conclusive on the parties, yet in the absence of such certificate, his
testimony is not conclusive, but will stand upon the same terms as other
' Eddy's Exec'r v. Nortlirup (Ky.). 23 S. Weeks, 21 111. 561.
W. Rep. 353; Edmund-on ??. Wilson (Ala.), ' Hamilton Co. v. Newlin, 132 Ind. 27;
19 So. Rep. 367. and see Mills «?. Weeks. 21 111. 561.
^ Thornton «. McCormack (Iowa), 39 N. ^ W. Chicago Park Comm'rs. v. Barber,
W. Rep. 502 [1888]. 62 111. App. 108; Gillies v. Manhattan B.
» Bogan D. Daughdrill, 51 Ala. 312. Imp. Co. (N. Y. App ), 42 N. E. Rep. 196;
* Hamilton ®. Hart, 125 Pa. St. 142 Stewart v. Carbray, 59 111. App. 397.
{1889]; \mV<\.^i.^\^, distinguished. » Reilly v. Lee, 16 N .Y. Supp. 313
^ Mather v. Day (Mich.), 64 N. W. Rep. [1891]; and see Swank v. Barnum (Minn.),
198. 65 N. W. Rep. 722.
6 Mercer v. Harris, 4 Neb. 77; School " Langford t). Sanger, 35 Mo. 133 [1864].
Dist. «. Randall, 5 Neb. 408; see Mills v.
416 ENQINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 482.
witnesses of equal knowledge and opportunity/ Certificates of an engineer
as to the amount of work done by a plaintiff under a contract, though a.
condition precedent to the right to payment under its terms, are not admis-
sible in evidence, unless the fact that they were furnished is pleaded.*
Sworn copies of estimates from the office of the resident engineer are com-
petent evidence in an action by a subcontractor against a contractor, for
the purpose of ascertaining the value of work done.'
Two interesting cases in evidence are reported, one where a contractor
had been prevented by the company from completing his contract, and he-
sued for profits he would have realized if he had been permitted to complete
it. The court held that written estimates of the amount and cost of work
made by engineers after the letting of the contract could not be placed be-
fore the jury to disprove the amount of profits claimed by contractor." In
another case where a contract provided that the engineer or architect should
decide any dispute arising as to the meaning of drawings and specifications,,
it was held that that fact did not render the engineer's admissions of defects
admissible as evidence, if such admissions were made in the absence of the-
contractor, in a suit for a balance due on the contract by the contractor.^
482. Can Engineer's Certificate be Revised or Corrected after it is Once
Rendered, — The estimate made and the certificate rendered, or a classifica-
tion made, or a dispute decided in a certain way, the question is sometimes
raised whether the engineer can subsequently change or revise it. The
question arises frequently in regard to monthly estimates or progress certif-
icates, when the contract does not expressly provide that such preliminary
estimates are approximate only and are therefore provisional, and that only
the final estimate and certificate shall be binding and conclusive on the-
parties. *
If this last condition be not expressed, it has been held in some cases
that monthly estimates will be held conclusive, even though made by an
assistant; at any rate when subcontractors have been paid according to such
estimates." It has been held that if no provision or stipulation is inserted
in the contract to the effect that the monthly estimates are only approximate
and are subject to revision and readjustment at the final estimate, then the
monthly estimates duly certified by the engineer and according to wliich
the principal contractor has paid his subcontractors, are final and conclu-
sive, and are not subject to remeasurement and reclassification to correct
aMeged mistakes and discrepancies. "The mere incompetency or mere
' Fitzgerald «. Beers, 31 Mo. App. 356; ^ Garnsey v. Rhodes (N. Y. App.), 34 N.
Boleler v. Roy, 40 Mo. App. 234. E. Rep. 199.
2 Boden v. Maher (Wis.), 69 N. W. Rep. « Price v. Chicago, etc., R. Co., 38 Fed.
980. Rep. 304 [1889]; as to classificatiou,
2 Lyon et al. v. McCadden, 15 Ohio 551 Ricker v. Collins (Tex.), 17 8. W. Rep..
[1846].* 378 [1891] ; Barker v. Belknap & V. C. IC
* Tenn. «fe C R. R. Co. v. Danforth, 13 Co., 27 Vt. 700 ; Gulf, etc., R. Co. v^
So. Rep. 51. Ricker (Tex.), 17 8. W. Rep. 382 [1891].
* See Sees. 413, 463, and 465, supra.
§ 483.] CONTRACT STIPULATIONS. 417
negligence of the division oi chief engineer does not meet the requirements
of the case, unless their mistakes were so gross as to imply bad faith;" ' but
the authorities are quite as strong and numerous that progress certificates are
merely provisional and subject to adjustment in the final certificate.' It
seems, however, that a promise by au engineer to classify in a certain way
at some future day does not amount to a classification. When he makes the
final estimate and classification he may exercise his discretion.^*
A Massachusetts case is authority for the statement that " the engineer
may revise and correct the statements within a reasonable time, if he can do
so without prejudice to the rights of either party."* In this case the en-
gineer had made an estimate of earthwork filling where there was a general
subsidence, from the measurements of his assistant engineer, and he revised
it afterwards, when he made a personal inspection.*
483. Rules as to Correction of Awards by Arbitrators. — There are in-
stances where the affidavit of an arbitrator has been admitted to s'jow some
simple error in fact, like a miscalculation ; such as a mistake in computa-
tion." The opinion has been expressed that an engineer would be entitled
to correct a clerical error apparent on the face of the award,'^ and an arbi-
trator has been allowed to insert the word " dollars " in a statement of
amount due.^ These cases would not be good law if they were simple cases
of arbitration. A mere clerical error in an award cannot be corrected by
the arbitrator himself,^ unless the correction be one that does not affect the
merits of the award, as a mere clerical error of omission,'" and a decision or
award which is expressly made subject to alterations upon the suggestion
of errors by the parties is not a valid award." It has been held that au
award may provide for the correction of a mistake in the calculation of the
interest."
484. When Award has been Made, Arbitrator's Powers are at an End. —
A mistaken calculation of figures in making an award cannot be corrected.
The arbitrator's authority, when once completely exercised pursuant to the
' Chicago, etc., R. Co. v. Price, 138 U. ^ Hazeltine v. Smith, 3 Vt. 535 ; and see
S. 185 [1891]. Clement v. Foster, 69 Me. 318.
2 O'Brien v. New York (App.), 35 N. E. ' Robinson & Rea Mfg. Co. v. Mellon,
Rep 323. 139 N. Y. 543, 142 N. Y. 671 ; 139 Pa St. 257 [1891].
and McNamara v. Harrison (la.), 46 N. W. « Smith v. Potter, 27 Vt. 304 [1855] ;
Rep. 976 [1890] ; and Cooper v. Uttoxeter Piatt «. Smith, 14 Johns. 368 [1817] ; God-
Bur. Bd., 11 L. T. N. S. 565; contra, well v. Raymond. 27 Vt. 341 [1855].
Tharsis Sulphur Co. v M'Elroy, L R. 3 ^ Mordue v. Palmer, L. R. 6 Ch. 22.
App. Cas. 1040 ; and Hartupee ®. Pitts- '<> Godell v. Raymond. 27 Vt. 241 ; Mc-
burgh, 97 Pa. St. 107 ; Crumlish v. Wil- Kinstrv v. Solomons, 2 Johns. (N. Y.) 57;
mington, etc., R. Co., 5 Del. Ch. 270 s. c , 13 Johns;. 27.
[1879]. 11 McCrarv v. Harrison, 36 Ala. 577 ;
'^ Dor win v. Westbrook, 24 N. Y. Supp. Hooker v. Williamson, 60 Tex. 524.
955. 12 McKinstry v. Solomon, 2 Johns. (N.
4 Palmers. Clark, 106 Mass. 373 [1871]. Y.) 57; hut see Gardner v. Masters, 3
"* Semhle, Reynolds v. Caldwell, 51 Pa. Jones Eq. (K Car.) 462.
St. 298.
* See Sec. 390, sttpra.
418 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 485.
terms of tl;e reference, is at an end and the award cannot be reviewed again.*
Having once made an award the arbitrator is functus officio, and he cannot
:afterwards make a second award, though the first one was defective," unless
he lias expressly reserved the power to correct errors which may be found
in it,' which might be an imprudent thing to do.* The award is complete
on delivery, and not before, and the fact that it was signed and ready to
deliver, but not delivered, does not prevent its being recalled or revoked.*
''When an arbitrator has made and published his award or report as a com-
pleted instrument his pQwer is wholly at an end. He has exhausted his
.authority. He can do nothing more in reference to the arbitration or the
subject-matter. He cannot reopen the case, nor make a new or supple-
mental award or report, nor alter or amend the award or report already
made, nor file additional, explanatory, alterative, or amendatory documents.
What he has done must stand or fall without further aid or assistance from
Lim. He can neither support it or impeach it.^' * " After the award has
been executed and published to the parties, the arbitrators have no more
to do with it ; they cannot destroy its validity as a public instrument by
wrongfully withholding it from the possession of the parties." "
485. Engineer's Certificate Analagous to an Award of an Arbitrator. —
When a final estimate has been made by an engineer, and a certificate
thereof rendered to the contractor, it is extremely doubtful if it may be
reviewed, revised, and corrected.' It has been held that there can be but
one final estimate, and that the engineer cannot revise it, nor make a new
one after he has submitted it as final.® If the engineer's certificate be re-
garded as an award and the engineer has delivered it to the parties, he
cannot recall it.' Some doubt has been expressed as to the necessity
of having an award signed and delivered to prevent the parties from
revoking the submission to arbitration, and the subsequent filing of the
award." If the engineer could recall his certificate, when would the award
be final and litigation be at an end ? If an award might be opened after a
short time has elapsed, why not after a longer period ? The law is well
settled that an arbitrator (and the same should be held of an engineer with
full powers of an arbitrator) cannot review his decisions or revise his esti-
mates if it in any way involves a reconsideration of the merits of the ques-
1 Morse on Arbitration 229 ; Woodbury ' Loeffler v. Froelich, 35 Hun 368.
D. Worthy, 3 Me. 85 [1824]. s Qo^der v. Berlin Br. R Co.. 171 Pa.
2 Flaunery «. Saba<iian (App.) 31 N. E. St. 498 ; Weeks v. Little. 47 N. Y. Super.
Rep 319 ; 1 Amer. &Eng. Ency Law 689. Ct. 1 ; and see Mercer v. Harris, 4 Neb.
=» Edmundson v. Wilson (Ala.), 19 So. 82 ; Pasbby v. Mayor, 18 C. B. 2; Jones
Rep. 367. V. Jones, 17 L. J. Q. B. 170.
4 Sbulte V Kennesy, 40 la. 352 [1875] ; ^ Robinson Rae Mfg. Co. -». Mellon
Byars v. Thompson, 12 Leigh (Va.) 550 : (Pa.), 21 Atl. Rep. 91 [1890J ; Woodbury
Butler V. Greene (Neb.) 68 N. W. Rep. 496. v. Worthy, 3 Me. 85 [1824].
^ Morse on Arbitration 226. ^" McKenna v. Lyle (Pa.), 26 Atl. Rep.
• Morse on Arbitration 228. 777.
* See Sees. 475, 480, 483, supra.
§ 487.] CONTRACT STIPULATIONS. 41^
tion or an exercise of his judgment/ He cannot reopen the case and ga
into a general rehearing to make a new estimate and certificate.'
486. An Engineer or Arbitrator can Do One of Three Things When He
has Made a Mistake. — If the arbitrator [engineer] wishes to revise or cor-
rect a manifest error in his certificate, it may be done in one of three ways:
first, he may apply to a court of equity to have the correction made.' The
court may recommit the award to have the mistake rectified.* The court
itself cannot change an award not even to correct an obvious miscalculation;
it must either confirm, reject, or recommit the award, and it is within the
court's discretion whether it will reject the award or recommit it to the
arbitrator/ The court may recommit an award to correct an acknowledged
error or informality, on the ground of newly-discovered evidence but not
upon the ground of a change of opinion of the arbitrators, and when
recommitted the full power of the arbitrators revives as to the whole cause^
their powers are restricted only by the submission; ^ secondly, the engineer
or arbitrator may advise the party of his error or they may both agree to
abandon the award made and resubmit the questions to the decision of the
engineer;" thirdly, if either party refuse to recommit the subject to the^
engineer, the other party may bring suit in a court of equity to have the
error corrected, by recommitting it to the engineer.
487. A Court of Equity will Refer Back or Correct a Palpable Mis-
take.— A court of equity will correct a palpable mistake or miscalculation,
of figures made by arbitrators.' A court of law may refuse to correct ft.
mistake even of a mathematical calculation as a mistake in subtraction,*"
but such a mistake is no ground to set aside an award.' The error in
general must appear on the face of the certificate or in some paper, letter^
or drawing delivered with it/°
If the error be one of simple arithmetic, to determine the correct amount
presents no question for a jury, the court may either perform the labor of
ascertaining the result, or it may entrust it to any competent individual*
In legal presumption the court knows the result.** The mistake should be
' Robinson Rea Mfg. Co. v. Mellon, 139 Rep. 708; Essenmeyer v. Sauter, 77X11 515-
Pa. St. 257 [1891]; Smith «. Potter, 27 Vt. [1875]; ant^ s^e Mansfield, etc., R. Co. v.
Rep 804 [1855]. . Veeder, 17 Ohio 385.
2 Robinson Rea Mfg. Co. v. Mellon, « jsfewland «;. Douglass, 2 Johns. (N. Y.)^
8upiui. 62 [1806]; Howell v. Howell, 26 111. 460.
» Mordue v. Palmer, L R. 6 Ch. 22. » Kleine «. Catara, 2 Gallison C. C. 6t
4 Kleine v. Catara, 2 Gallison C. C. 16 [1814]. The suit should not be brought
[1814], see also GrQi^nough v Ro'fe, 4K against the arbitrator, but against 1 he other
H. 357 [1828]; Roosevelt v. Thurman, 1 party to the submission, 3 Atkyns 644
Johns. Cli. 320 [1814]; and see Eisenmeyer [1748].
V Sauler. 77 111. 515 [1875]; State v. Rulon lo Sweet ?>. Morrison, 1161^. Y. 19 [1889];
(N J.), 14 Atl. Rep. 881 [1888], to ex ciiinff Fudickav v. Ins. Co., 62 N. Y. 392;
plain "to the heirs;" and Herrick v. Bel- Coal Co. v. Salt Co., 58 N. Y. 667; Woods
knap, 27 Vt. 673. v. Moncll, 1 Johns. Ch. 502; Todd v Bar-
5 1 Amer. & Eng. Ency. Law 711. low, 2 Johns. Ch. 551; Lewis v. Chicago,
•Eastman v. Armstrong, 26 111. 216; and etc , Ry. Co., 49 Fed. Rep. 708.
aee Burnside v. Potts, 23 111. 415 [I860]. » People v. Board, 125 111. 9 [1888].
" Lewis V. Chicago, etc., R. Co., 49 Fed.
420 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 488.
so palpable as to afford sufficient cause for a court of equity to reform
it.'
488. If Certificate or Award be Regular and Engineer or Arbitrator has
Not been Misled, it will Hold. — If the award is not ambiguous and is within
the scope of the submission, and tliere is no fault on the part of the arbitra-
tors, and they were not deluded, deceived, or misled, and have decided as
they intended, and as the evidence warranted, the award cannot be attacked
on the grounds of an error in computing the amount found due." It can-
not be impeached for mistake arising from error in judgment of the referee
or in drawing conclusions from evidence and observation.' If the engineer
has given different estimates to the owner and contractor, it has been held
proper to submit both of them to the jury to determine which is the correct
one."
489. Special Statutes Conferring Power to Correct Errors in Awards.
— Some states have passed special statutes conferring power on a court to
correct an award which is imperfect or when there are obvious miscalcula-
tions,^ they embody the same principles of the law as has been set forth in
the cases cited. The mistakes and miscalculations must be apparent on the
face of the award, or in some paper delivered with it, and be so plain that
they are obvious to the referee the moment they are pointed out." The
award may be referred back to the arbitrator, but not for a review of the
case on its merits, or to reconsider the evidence or any other matter on
which he has already decided. The court cannot make a new and different
award based upon a different view of the law or of the facts of the case; it
has the same power as it has over a verdict to sustain it, or set it aside as a
whole.''
490. Some Cases where Engineer has Recalled and Corrected his Certifi-
cate.— In this matter regarding the powers and duties of an engineer, the
case of O'Brien v, New York, under the stipulation making the engineer's
decision conclusive on the contractor, but not upon the city, furnishes an
unusual result. In tiiis case the engineer delivered his certificate to the
aqueduct commissioners, which to all intents and purposes was a publica-
tion of it, and then recalled it and revised it, making the allowance to the
contractor much less than in the prior certificate. It was held proper, as
the earlier estimate included work which was not properly comprised in the
contract. The progress certificates were held not conclusive, but capable of
being corrected in the final estimate."
1 Robinson Rea Mfg. Co. v. Melton, 139 717.
Pa. St. 257 [1891]. « School Dist. v. Sage (Wash.), 43 Pac.
2 Hatliaway v. Hagan (Vt.), 8 Atl. Rep. Rep. 341.
678 [1887]. ■' Ginn v. Bowers, 126 Pa. St. 552 [1889];
3 Palmer v. Clark, 106 Mass. 373. Deford v. Deford (Ind.), 19 N. E. Rep. 530
^ Keystone Brewing Co. v. Walker (Pa.), [1889].
11 AM. Rep. 650 [1888]. s O'Brien v. New York (N. Y. App.), 35
s Rev. Stat. I.id, 1881, § 846, Act of N. E. Rep. 323, 142 N. Y. 671.
Peuna. Legislature, June 16, 1836 P. L.
§ 491.] CONTRACT STIPULATIONS. 421
Another peculiar case was decided not long ago in Illinois, in whicli the
:Contractor was to be paid " upon the presentation of the architect's certifi-
■cate," which was to be final. The contractor received tlie certificate, and,
l)eing disappointed in the balance due according to the architect's estimate,
he deliberately surrendered it and returned it to the architect, who after-
wards refused to give him another. The supreme court held the contractor
could recover without the certificate,* but the court of appeals held that the
contra(;tor's act in deliberately returning the certificate was a taking of the
burden upon himself of proving his right to recover without the certificate,
and that he had willfully and deliberately disqualified himself from compli-
ance with his contract," and he could not therefore recover. This decision
was reversed in 1892, when the court held that when the certificate was
once made and signed and rendered by the architects, that the rights of the
parties were then determined and fixed, and that the fact that the builder
handed the certificate back to the architect did not change their rights or
.affect the validity of the certificate. - The certificate was compared to a
promissory note payable on demand/
Without doubt usually progress or monthly certificates may be corrected^
so as to equalize the whole at the end or correct errors.* *
491. Testimony of Arbitrator in Regard to his Award or Certificate. — -
An arbitrator is not a competent witness to prove his own misconduct ^ or
. to show a mistake in his award.' He cannot contradict an award which he
has signed,^ nor explain uncertainties in the award. * To this rule there ia
an exception in cases of fraud, and an exception has been allowed in a case
of mistake.' An arbitrator may be called as a witness to testify the time
when and the circumstances in which he made his award,'" and also concern-
ing what matters were submitted to them." One who refused to join in the
award may testify to acts of partiality and misconduct on part of the other
arbitrators." Parol evidence is not admissible to show that an award upon
which judgment has been rendered was founded upon matters not pleaded;
nor can the " understanding" of the arbitrators be shown."
The testimony of an arbitrator (architect) is competent to show that no
^ Arnold «. Bournique (111.), 33 K E. « Newhrnd v. Douglass, 2 Johns. (N. Y.)
Hep. 530 62 [18061 : ^^i ««« Eiseiimeyer «. Sauter, 77
2 Bournique v. Arnold, 38 111 App. 303 111. 515 [1875], and Klein v. Cutara, 2
{1889]. Gallison C. C. 61 [1814].
3 Arnold v. Bournique, 111. Sup. Ct., ' Campbell v. Western, 3 Paige 124
Jan., 1892. [1832].
4 Faunce v. Bnrke & Gonder, 16 Pa. 469 ; M Amer. & Eng. Ency. Law 692.
Monongaliela Nav. Co. v. Fenlon, 4 W. & ® Pulliam «. Pensoneau, 33 111. 375
S. 205; Yutzy v. Buffalo Valley R. R, 1 [1864].
Walker 463 ; Memphis, etc., R. R. «. Wil- '» Woodbury v. Northy, 3 Me. 85 [1824].
cox, 48 Pa. St. 161 ; semhle, Drhew «. Al- " 1 Amer. & Eng. Ency. Law 691.
toona. 121 Pa. St. 401 ; Gonder v. R. R. ^^ Levine «. Lancashire Ins. Co. (Minn.),
Co., 171 Pa. St. 497 [1895]. 68 K W. Rep. 855.
6 Claycoml) i). Butler. 36 111. 100 [1864] ; '^ c^^ggs ^^ 17 Amer. & Eng. Ency. Law
Schmidt v. Glade, 126 111. 485 [1888]. 422.
* See Sees. 467-469, supra.
422 ENQINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 492.
final award was made, and that although he had signed it, having subse-
quently discovered a mistake therein, he never delivered iV If the affi-^
davits of the arbitrators are in support of their award, the court may in its
discretion permit the person impeaching the award to examine them.'
Conversations and admissions between the owner and his engineer as to
defects in the work made in the absence of the contractor are not admis^
sible in an action by the contractor for a balance due if the architect in no
way represents the contractor. The fact that the contract provides that
the engineer shall decide any disputes as to the meaning of the drawings,
and specifications does not render it admissible.' The engineer is the agent
for many purposes of the owner, and his conversations and admissions ta
the contractor are generally admissible in such an action.* * A letter from
the engineer to the contractor in regard to proper mode of performing
work, written and received after completion of work, cannot be received to
change the construction of the contract.^
492. Provision that Engineer's Certificate, Estimate, and Decision may be
Made Without Notice to the Contractor.
Clause: " * * * every such doubt, dispute, and difference shall
from time to time be referred to and be determined, settled, and
decided by the engineer or architect, who shall be competent to enter
upon and investigate the subject-matter of such doubt, dispute, and
difference, either with or without reference or notice to the parties to
this agreement, or to either of them, or after such investigations or
inquiries as he may think fit to make or instigate, and who siiall judge,,
decide, order, and determine thereon, etc."
Clause: '^And as soon thereafter as the engineer may think con-
venient the engineer shall estimate, fix, and determine, either ex parte
or by and after reference to the parties, or either of them, or after such
investigations or inquiries as he may think proper to make or instigate,,
and he shall certify, * * * etc."
Clause : '^All pi-ogress or prior certificates upon which per
cent, payments shall have been made are to be regarded as mere esti-
mates, and subject to correction in the final certificate, which may be
made without notice to the contractor, and without explanation of the
measurements and data upon which it is made or based."
493. Under a Submission to Arbitration Parties Are Entitled to a
Hearing.^Without these stipulations the question whether or not the parties
are entitled to notice and to be given an audience before or at the time the
» Shulte V. Hennesy, 40 Iowa 352 [1875]. Wortliington (Ala.), 10 So. Rep. 839 ; but
2 Robinson v. Shanks (Ind.), 20 N. E. see Hiintsville, etc., Ry. Co. -y. Corpening
Rep. 713 [1889]. (Ala.), 12 So. Rep. 295 ; Burgess v. Ware-
^ Evans v. Montgomery (Mich.), 55 N. ham, 7 Gray (Mass.) 345; numerous cases^
W. Rep. 362 ; Garnsey v. Rhodes (Sup.), cited by counsel in Woodruff v. R. & P. R.
18 N. Y Supp. 484, (N. Y. App.). 84 N. E." Co., 108 N. Y. 89 [1888].
Rep. 199. 5 Braney v. Town of Millbury (Mass.),.
4 Wright V. Reusens (N. Y. App ). 31 44 N. E. Rep. 1060.
N. E. Rep. 215 ; Mobile ■& B. Ry. Co. v.
* See Sec 849^^, infra.
§ 494.] CONTRACT STIPULATIONS. 423
engineer or architect makes his final estimate, is one that has been raised
frequently. To evade the question it is customary to insert a clause by
which either one or both of the parties waives their [his] rights to a hearing
before the engineer, architect, or referee.
Without the protection of a police or military force, the impropriety of
having an open trial of the vexing questions that arise in engineering and
architecture, can be imagined. Free fights and riots would be, too often, tlie
end of such hearings with the intrepid, coercive class of men which make
up the rank and file of our contractors and builders. It may be wondered
that they are not even more roughshod when the oppression which they
undergo and the risks they assume are considered.
Under a submission to arbitration, it is well settled that either party is
entitled to a hearing by all the arbitrators, and that an award made without
due and proper notice to the parties of the proceedings under a submission
is void, and has no binding effect.' A refusal to hear evidence pertinent and
material to the controversy will vitiate an award by arbitrators in a court of
equity,' and it has been held that if either party suppress or conceal material
facts, and it be shown that such facts would have produced a different
result, it will be sufficient cause for setting aside an award." So when arbi-
trators were determining disputed boundaries, a refusal to receive and con»
sider certain deeds and maps offered to show the lines was held sufficient
reason for setting aside an award." An agreement by the terms of which the
arbitrators were "to survey the ground, take levels, and determine" lias
been held not to amount to a waiver of the right to introduce evidence.*
However, it has been held that an engineer may refuse to hear testimony of
witnesses to contradict the estimates furnished by his subordinates who
made the measurements, there being no proof of fraud, corruption, bad
faith,^ or misconduct on his part, or palpable mistake appearing on the face
of the estimate.' To avoid Un award when the arbitrators have refused to
grant a hearing, or to receive material evidence, it is not necessary to show
partiality, bad faith, or corruption of the arbitrator.'
A provision in a construction contract that any dispute as to the value
of extra work, or work omitted, shall be settled by arbitration, does not
bind the contractor or builder to a settlement without a hearing and wit-
nesses. If the owner refused to admit a clause allowing witnesses, and the
contractor insisted upon it, then both parties will be taken to have aban-
doned the provision, and the question will be a proper one for the courts.®
494. Right to a Hearing may be Waived by the Parties,— The right
1 Ingraham v. Whitmore, 75 111. 24 (N. J ), 20 Atl. Rep. 29 [1890].
[1874]; Shively^. Knoblock (Ind.), 35 N. *Hart v. Kennedy (N. J.), 20 Atl. Rep.
E Rep. 1028; cases collected, 1 Amer. & 29 [18901.
Eog. Ency. Law 685. * Sweet v. Norrison (N. Y.), 22 N. E.
2 Van Courtlaudt «. Underhill, 17 Johns. Rep. 276, 116 N. Y. 19 [1889].
Rep. 405 [18191 e Giiinq Perkins i). Giles 50 N. Y. 228.
» Hurdle 'g Stallings (N. C), 1.3 S. E. "J Insrraham «. Whitmore, 75111. 24 [1874].
Rep. 720 [1891]; accord. Hart ?7. Kennedy « Anderson «?. Meislahn, 12 Daly 150
424 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 495.
to be present at a hearing may be waived by an express agreement, or by
consent of the parties, or by failure to appear or be excused for absence,
when the party has had notice of a hearing/ * When the submission is
silent as to notice of a hearing, notice must be given." Whether or not the
contractor had notice, or waived the notice of a hearing, is a question for tlie
trial court/ It seems that if the contractor accept or perform in part the
award of arbitrators made at a meeting of which contractor had no notice,
that he will be held thereby/
An umpire who has been chosen to decide in case of disagreement of the
arbitrators, may make an award without either of the arbitrators joining with
him; yet it is his duty to hear the whole case, and to make a distinct award
thereon as the result of his judgment. If he decides the case without
a hearing, simply on the statements of the arbitrators, his award will be
void.'
495. Earlier Cases Treated Engineer as an Arbitrator, and Required a
Hearing — The same rule was generally applied to an engineer in the
capacity of a qnasi-SivhitYSitoT in the early cases, in which cases the engineer
was treated as an arbitrator. These cases held that the builder and con-
tractor are entitled to a hearing, and that both parties should be notified
and given an opportunity to be present when the estimate or certificate was
made, and that determinations made ex parte were not final and conclusive.'
Whether there was testimony to be given or not, it was held that notice
should have been given, so that the contractor could have been present, and
look out for his interests, and guard against mistakes; that if an arbitrator
who is presumed to be totally indifferent be required to give notice of a
hearing, that there was even greater reason that the selected and paid ser-
vant of one of the parties, acting in the capacity of an umpire, should give
the same notice; that as the contractor's interests were entirely dependent
upon the skill and integrit;y of the company's engineer, he should at least
have the benefit of a hearing and notice of the time and place when the
engineer will investigate the matter, with a view to rendering his decision; ^
that the conclusiveness of a decision of a third person with respect to the
rights of the parties required this unless there was something in the terms
of the agreement declaring or clearly importing that such notice had been '
waived, or was not expected or intended.® Another case [1839] held that
[1883]; Altmau v. Altman, 5 Daly 436, dis- • Collins v. Vanderbilt, 8 Bosw. (N. Y.)
anguished. 313 [1861]; Wilson i\ York & Md. Line
1 Box. «. Costello, 27 N. Y. Supp. 293; R. Co., 11 Gill & J. 58 [1839]; McMahon
semble, Ingrabam v. Whitmore, 75 111. 24 v. N. Y. & Erie R. Co , 20 IST. Y. 4<i3
[1874]. [1859]; and see Gay v. Lathrop. 6 N. Y. St.
* Sbively «. Knoblock, infra. ' Rep. 603, 2 Wood on Raihoads 999; Pack-
3 Sbively v. Knoblock (Ind.), 35 N. E. ard v. Van Schaick, 58 111. 79.
Rep. 1028. ■» McMabon v. Tbe N". Y. & Erie R. Co.,
•*Ferrier v. Knox Co. (Tex.) 33 S. W. 20 K Y. 465; Collins v. Vanderbilt, 8
Rep. 896. Bosw. (N. Y.) 313 [1861].
^ Ingrabam v. Wbitmore, 75 111. 24 [1874]. ^ Collins v. Vanderbilt, supra.
* See Sees. 414 and 417, supra.
§ 496.] CONTRACT STIPULATIONS. 425
the plainest dictates of natural justice required that no man should be con-
demned unheard; that the right, to notice was implied in the agreement to
submit/
The former case was one where the arbiter had accompanied his
■employer, the owner, over the works at the latter's request, and the owner
had said if it was all right he would pay; but they found by inspection
that all was not done, and the architect stated to the contractor what he
must do to complete the works. The arbiter subsequently visited the
works alone, and being satisfied all was done he gave his certificate to that
effect. The court held that it was not sufficient, as the subsequent in-
spection was without notice to the owner or. employer.'^
Another and earlier case had held that no notice was necessary when
measurements were to be made, but that when the engineer was to make an
estimate of certain expenses incurred by the contractor in performing extra
work, he was entitled to a hearing and an opportunity to make his repre-
sentations and suggestions, and of submitting such accounts, bills, and re-
ports as he might have, accompanied with any remarks and observations
that seemed pertinent, which, though not binding upon the engineer in
making his estimates, should have at least some weight in guiding his judg-
ment to a fair, just, and accurate result. If such an opportunity were not
given to the contractor then the engineer's estimate was not binding nor
conclusive.^
Under a provision that all disputes arising respecting the true construc-
tion or meaning of the drawings should be decided by the engineer, whose
decision should be final and conclusive, it was held that when one party
applied to the engineer for a construction of the specifications, no dispute
having arisen, there was no need of giving a notice to the other party.*
496. In Many Cases an Engineer and Arbitrator are Distinguished. —
There are many cases that distinguish a reference of questions of price,
quantity, or quality of materials to the judgment of an engineer in a con-
struction contract from a submission to arbitration. They compare such a
reference to an agreement that some third party shall make an appraise-
ment of property,^ and hold that such estimates and decisions may be made
without granting a hearing to the parties or giving any notice thereof unless
such hearing and notice be required by the express provision of the contract
or by reasonable implication; and that the engineer may make his decision
upon siich principles as he sees fit honestly to adopt or upon such evidence as
he may choose to admit. ° In the absence of any agreement for notice such
cases hold that the parties will be deemed to have waived it.' Though the
' Wilson V. York & Md. Line R. Co., [1884].
supra. * Cases collected, 1 Amer. & Eng. Ency.
2 Collins V. Vanderbilt, 8 Bosw. (N. Y.), Law 659.
813 [1861]. « Palmer ^. Clark, 106 Mass. 373.
3 Wilson 'D. The York & Mo. R. Co., 11 ^ Korf v. Lull, 70 111. 420 [1873]; and seo
Gill. & J. 58 [1839]. Taylor «?. Renn, 79 111. 181.
^Gustavcson v. McGay, 12 Daly 423
426 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 497.
architect be sole judge, yet he may not be regarded so strictly an arbitrator
as to require that the parties be given notice of the time and place he will
render his decision. ^ *
497. Intention of Parties in Regard to a Hearing should be Expressed.
— In view of the different opinions entertained as shown by the cases citc^d,
the advisability of a stipulation showing the intention of the parties witli
regard to a hearing is apparent. If there is no intention to give the con-
tractor an opportunity to present his case, then the contractor should embody
a waiver of any rights he may have to a hearing or to a notice thereof ; and
if on the contrary the parties are mutually agreed that a hearing will be
more equitable and proper it should be provided for in the contract. The
more general practice is to leave it to the judgment of the engineer, whether
he will grant a hearing to either party, as expressed in the clause given in
section 492.
No doubt when questions and disputes are to be determined and settled
by three arbitrators, or by two arbitrators with a final appeal to an umpire
selected by them, there must be a hearing and a notice thereof, f especially
where the arbitrators have to be informed of the facts of the case by
affidavits, records of measurement, testimony, etc., it could not be other-
wise ; but when the engineer has all the facts in his possession and the
uncertainty or questions in dispute can be determined by measurement,
calculation, or investigation, the necessity for a hearing is less apparent.
Such references have frequently been distinguished from submissions to
arbitration, although the decisions rendered under them have been given
the finality and conclusiveness of an award.'
498. Hearing may be said to have Been Continuous During Construction
of Work. — In cases of construction work the hearing may be said to have
continued from the time the contract was signed until the final certificate
has been rendered. The contractor as well as the owner are in almost daily
intercourse with the engineer, and bring claims and complaints to his atten-
tion as they come up in the work. In fact, the law seems to require that
they should do so. J If a hearing is to be granted, at what stage of the
work shall it be given ? Shall it be when the measurements are made,
when the quantities are estimated and the classifications made, or the
quality of work and materials determined, or when the engineer draws up
and signs his final certificate ? These are questions which the courts do not
always consider, but they should have some weight in deciding such ques-
tions. The courts have frequently held that the parties need not be notified
to be present when arbitrators meet to draw upand sign their award ; that
arbitrators, like jurors, have the privilege of consultation together in private
for the purpose of making their award. ^ Certainly for the purpose of
iKorf i) Lull, 70111. 420 [1873]. sRoloson v. Cars n, 8 Md. 208 [1855];
• * 1 Am. & Eng. Ency. Law 659. cases 1 Anier. & Eng. Ency. Law 686.
* See Sees. 526-528, infra. f ^^ Sees. 536-528, infra. X See Sees. 578-581, infra.
§ 498.] CONTRACT STIPULATIONS. 427
checking and comparing reports, estimates, and computations of his assist-
ants, an engineer in charge of extensive works has even greater need of the
privacy of his office, undisturbed by the arguments and quarrels of the
parties. . <
If arbitrators are selected with special reference to their special knowl-
edge of, or skill in, the matter in controversy, and it is apparent tliat the
parties intended to rely on their personal knowledge or skill, as is the case
with an architect or engineer, the arbitrators may be justified in refusing to
hear evidence/ A submission to perform an award is not, in general, con-
ditional upon receiving notice of the award, because both parties may
equally take notice of it. If, however, it be provided that the award should
be notified to the parties, it is no award until notice be given, and personal
notice is necessary in order to proceed by attachment for contempt in not
performing the award.'^
iHall «. Norwalk P. lus. Co. (Ct.), 17 Eng. Ency. Law 681.
Atl. Rep. 356; accord, Sweet v. Morrison, 'Leake's Dig. of Contracts 647.
116 N. Y. 19; cases collected 1 Amer. &
CHAPTER XVII.
DELEGATION OF ENGINEER'S OR ARCHITECT'S DUTIES TO ASSISTANTS
MINISTERIAL ASTD JUDICIAL DUTIES DISTINGUISHED.
499. Provision for Delegation of Engineer's Duties to his Assistants.
Clause : " And it is further agreed by the parties to this agreement,
that whenever the engineer aforesaid shall be nnable to act, in conse-
quence of absence or other cause, then such assistant as said engineer, or
the owner, or commissioner, shall designate, shall perform all tlie duties
and be vested, with full power (subject to the instructions and revisions
of the chief engineer) to decide as to the manner of conducting, execu-
ting, and estimating the said works in every particular, and that the
contractor shall follow the instructions or orders of the officers or per-
sons so appointed. ''
500. Certain Duties cannot be Delegated. — When the control, direction,
and supervision of large works is left to the engineer of the company, and it
is further provided that he shall classify, accept, or reject materials, deter-
mine quantities, decide upon the character and completion of work, and
judge of numerous questions incident to the undertaking, an engineer finds
himself so overwhelmed with work that he must delegate a large proportion
of the duties and tasks assigned to him by the contract to assistants. This
delegation is frequently made a point of attack by disappointed contractors,
and sometimes successfully, when the above clause is not inserted in the
contract.
It is a general rule of law that delegated powers cannot be delegated, and
that an agent cannot employ a sub-agent to do his principal's business.
This rule is particularly applicable to those cases where the performance of
the agency requires the exercise of special skill, judgment, or discretion.
When an engineer has been selected with special reference to his skill,
honesty, and integrity, and the special confidence that the parties place in
him, there is abundant reason why the trust should not be transferred to
another, whose fitness and capacity is not known to the parties.^
The appointment of an engineer or attorney creates a personal trust, and
the performance of his duties cannot be entrusted to another engineer or
attorney, without the express consent of the employer.'
^Mechem on Agency, Sec. 18Q, and cases Mich. 14; Monahan v. Fitzgerald (111.
cited. Sup ), 45 N. E. Rep. 1013 ; Bocock v,
"King V. Hawkins (Ariz.), 16 Pac. Rep. Pavey, 8 Ohio St. 270.
434 [1888] ; Eggleston v. Boardman, 37
428 .
§ 502.] CONTRACT STIPULATIONS. , ' 429
501. Certain Acts may be Delegated. — This rule, however, does not
require that the engineer shall perform in person all of the purely mechani-
cal and ministerial work required, such as copying, drafting, measuring,
figuring, and driving stakes. The performance of such duties through the
agency of others falls under a well-recognized exception to the general rule.
The rule against delegation applies with special force to arbitrators and to
^w«.n-arbitrators in whose personal judgment, ability, and discretion the
parties to the submission have place their confidence, but the exception seems
equally necessary in the case of an engineer or architect. There may be, and
usually are, many mechanical and ministerial acts which it is expected will
be assigned to others, and which may be delegated with perfect propriety.
The act must not require any exercise of discretion or judgment, nor should
any act be delegated which requires the exercise of any function upon which
the parties have relied upon as being perculiarly within the province of the
arbitrator, as those involving the personal skill, honesty, and integrity of the
arbitrator.^ An arbitrator cannot delegate any matter requiring his opinion
or judgment, not even to a fellow-arbitrator. The parties must have the
benefit of the joint judgment of all the arbitrators acting together."
Arbitrators may consult disinterested persons of acknowledged skill, and
obtain such information and advice in reference to technical questions sub-
mitted to them as may seem necessary to come to correct conclusions, and
they may adopt such opinions as their own, provided that the award is the
result of their own judgment.^
502. Exception to the Rule that an Agent cannot Delegate His Duties. —
There are, according to Mr. Evans in his excellent work on " Principal and
Agent," four exceptions to the general rule that the agent cannot delegate
his duties to another. They are : 1. When there is a lawful custom or usage
to authorize it; 2. When the act is purely ministerial; 3. Where the object
of the agency cannot be attained otherwise; 4. Where the principal is aware
that his agent will appoint a deputy.
The delegation of duties by engineers and architects to their assistants,
has been permitted and placed under each and all of these exceptions, and
well it may. It is well known that practically the engineer never does and
never can make the estimates, or even verify those made by others on large
works, that it is altogether impracticable, and there is a universal custom and
usage, to employ assistants to do the routine work of inspection, measure-
ments, giving lines and grades, etc. There can be but one conclusion in
respect to such a reference to the determination of an engineer, which is that
the parties in making their submission had reference to something that was
usual, or at least possible.'
> Mecliem on Agency, Sec. 188 ; Evans » Herrick v. Belknap, 27 Vt. 681 ; Pal-
on Principal and Agent, 52. mer v. Clark, 106 Mass: 373 ; Seymour v.
2 Evans on Principal and Agent [Black- Long Dock Co., 20 N. J. Eq. 396 [1869];
stone ed.] 51; and see. Benson t?. Miller Sweet r. Morrison, 116 N. Y. 19; Wiberly
(Minn.), 57 N. W. Rep. 943. v. Matthews, 91 K Y. 648 ; Billing's
430 ENQINEEItlNG AND ARCHITECTURAL JURISPRUDENCE. [§ 503.
The fact that the basis of the engineer's certificate is the measurements
made by his assistants, not in his presence, affords no ground of avoiding it,
if the duty and the known and usual mode of executing such duties
officially require the employment of assistants/ It is too narrow an inter-
pretation to insist that the measurements shall be made by the engineer or
in his presence. If estimates are made in the usual manner by assistants
according to his directions and instructions, and are thereafter revised and
verified by him, so far as the nature of the work admits, they may be made
the basis of an estimate and certificate of the engineer.'* *
603. Certain Duties cannot be Delegated except by Express Agree-
ment.— As before intimated, there are duties and powers conferred upon the
engineer which he should not and cannot delegate to subordinates. The
question is how far must the work be under his direct personal supervision.
It would hardly be expected that the engineer should hold both ends of a
tape, stand at both ends of a transit, or sight through a level and hold the
rod, and if he can employ an assistant to do one of these acts, why not both
of them ? Why cannot an assistant perform the mathematical operations
as well as to look up the logarithms? and in short, why cannot the bulk of
the field and office operations be performed by assistants, as they invariably
are, on large work ? So long as the engineer maintains a careful and con-
stant supervision over the acts and operations of his assistants, knows what
they are doing and how they are doing it, and insists that all doubtful or
disputed questions shall be referred to him, and takes pains to inform him-
self as to all questions out of the usual routine of daily operations, he may
be said to do all that was contemplated by the parties in their contract.
This argument does not apply to cases where the service requires the exer-
cise of special skill, judgment, or discretion, or where the engineer or agent
is selected because the parties repose special confidence in him; there is
abundant reason why the trust should not be delegated to another of whose
fitness and capacity the parties know not, at least not without their consent.*
There is a higher class of duties, properly called judicial acts, which the
contract should place upon the engineer, such as the determination of ques-
tions of the due and proper performance of the contract, the methods to be
employed in determining the quantities, the means of attaining certain
results, the classification and sufficiency of work done, and a tribunal for the
general appeal of all questions about which the assistant may have doubts
or which the contractor may question. These cannot be delegated, but must
Awards, 76, 77; Chicago, etc., R. Co. v. engineer as an arbitrator may consult other
Price, 138 U. S. 185 [1891]; see Evans' engineers and adopt their opinions. Evans'
Agency, pp. 52-4. Agency 52.
' Palmer?). Clark, 106 Mass. 373. 'Mecham on Agency, §186, and cases
' Palmer v. Clark, supra; Chicago, etc., cited; Evans' Agency, p. 47; American
Ry. Co. -». Price^ 138 U. S. 185 [18911; cases cited in Blackstone edition; Com.
affirming Price v. Chicago, etc., Ry. Co., Bank®. Norton, 1 Hill 505; acco7'(i Combes.
38 Fed. Rep. 307 [1889]. It seems that an
* See Sec. 529. infra.
§504.] CONTRACT STIPULATIONS. 431
l)e performed by the engineer, to whom such questions are referred by the
•contract/ The engineer or arcliitect should approve and sign the certificate,
and not his assistant.'
504. The Engineer must Do Whatever the Contract Expressly Eequires
of Him. — If the contract requires that the work shall be measured by the
•engineer it seems that the measurement of a subordinate will not answer; it
was so held in 1839. The court seems to have ignored the necessities of
the case and hold strictly to the letter of the law, that an agent has no power
to employ a sub-agent without the knowledge and consent of the principal.*
This was held notwithstanding the fact that the work was to be measured
by the engineer of the company, without naming a particular person. The
"Court said: "'In his skill and integrity, or the person who might succeed
him in the responsible position which he occupied, full and implicit con-
fidence might have been reposed, which the contractor at least might not for
yalid reasons be unwilling to repose in a subordinate officer, and the execu-
tion of the trust by a different person was an assumption of power not war-
ranted by the express terms of the contract.*
Some of the cases distinguish between a provision that the engineer
should measure and that he should estimated It would seem therefore that,
in drafting a contract, the word ^^ ?neasure" had better be omitted. Unless
this case be supported on the strict terminology of the words used — i. e.,
measured— 'it must be considered as overruled by the more recent decisions
€ited.
Under a stipulation that the work should be done under the direction
and supervision of the chief engineer and his assistants, by whose measure-
ments and calculations the quantities and amounts shall be determined and
whose decision shall be conclusive, it was held that a measurement by the
assistant engineer was not conclusive, nor his decision that the work was
done according to the contract, nor that the contractor was entitled to pay
therefor.' An estimate by a subordinate engineer will not answer the
requirement that the certificate shall be made by the chief engineer, even
though the subordinate engineer has done all the surveying, measuring, and
inspection, and estimates.''
When a contract stipulated that certain work should be paid for as
€ase. 9 Co. R. 75; Lynn v. Bnrgoyne, 13 11 Gill & J. (Md.) 38-58.
B. Mou. 400; Tibbelts v. Walker, 4 Mass. ^ 2 Kent's Commentaries, and the maxim,
■597; Emerson v. Providence Hat Co., 13 " Deligaius non potest delegare."
Mass. 241; Powell v Tuttle, 3 Comst. 396; '•The court does not, seem to have con-
Bocock V. Pavey, 8 Ohio St. 270; Stubbs sidered the effect of usage, and the fact that
^.Holywell R Co., L. R. 2 Exch. 311, the company could have promoted the sub-
19 Atner. & Eng. Ency. Law 461 et seq. ordinate to the position of chief engineer.
1 Seymour v. Long Dock Co., 20 N". J. Wilson v. York & Md. Line R. Co. (Md.),
Eq. 396 [1869]. 11 Gill & J. 58 [1839].
^ McNamara v. Harrison, 81 Iowa 486; ^ Sweet v. Morrison, 116 N Y. 19.
Snell «. Brown, 71 111. 133; Mclntyre v. « Snell v. Brown, 71 111. 133 [1873J.
Tucker (Com. PI.), 25 N. Y. Supp. 95; 'McNamara v. Harrison (Iowa), 46 N,
Monahan v. Fitzgerald (111. Sup.), 45 N. E. W. Rep. 976.
Rep. 1013; Wilson v. York, etc., R. Co.,
432 ENQINEEHINQ ANB ARCHITECTURAL JURISPRUDENCE. [§505.
certificd to by the engineer in charge, an estimate of the amount of worK
done and the value thereof made by a division engineer and 0. K/d by the
engineer in charge, was held admissible with the testimony of such engi-
neers.' In these cases it was the evident intention of the parties to have
the benefit of the chief engineer's approval and adoption of the results
obtained by his assistants, and nothing else would suffice.
506. Contract Clause Permitting Delegation of Engineer's Duties
Omitted. — Without a clause similar to that recommended, an agreement to
abide by the decision of the chief engineer is binding, though he has not
himself measured the work,^ and even though the engineer refuse to hear
testimony tending to contradict the estimates of his assistants.' Whether his.
estimates were correct or not, the parties had conclusively submitted their
rights to him, and they must abide the result. The engineer's information of
the work was furnished by his assistants, and the court held that as personal
supervision was not stipulated for in the contract it was not required.'
It is a curious state of affairs that an engineer can determine and decide
a controversy between two parties in a case in which he would not be
accepted in courts as a witness. It seems from the last case that an
engineer who has no personal knowledge of work except what he has
derived from reports made to him by his subordinates can act as judge of
the parties' rights in regard to the work, but it has been held he cannot
testify in court regarding the same work.*
A recent case has decided that when a contract makes the decision of
the chief engineer conclusive, a finding by him on a disputed point is not
conclusive if it appear that he paid no personal attention to the matter but
acted solely on the statements of subordinates.^ If the engineer be desig-
nated as a public officer the contractor is entitled to the judgment of the-
officer designated."
If the contract require the certificate to be signed by two or more, the
signature of one alone will not be sufficient.'* One of the partners of a firm
of architects may sign the firm's name to a certificate required to be made
by the two architects; ^ but an architect cannot delegate to his partner
a power to determine as an arbitrator all matters concerning the materials
and character of the work,' nor can one partner alone make affidavit to an
» Miller v. Sullivan (Tex. Civ. App.), 33 [1891].
S. W. Rep. 695; and «e« Vermont St. Ch. ^ Van Hook v. Burns tWash.), 38 Pac.
c. Brose, 104 111. 307; see Sweet v. Morri- Rep. 763.
son, 116 N. Y. 19 [1889] * United States v. N. American Com.
2 Cineago, etc., R. Co «. Price. 138 U S. Co. (C. C), 74 Fed. Rep. 145.
185 [1891]; Palmers. Clark, 106 Mass. 373; ' Adams v. New York, 4 Duer (N. Y.);
Herrick v. Be knap, 27 Vt. 681; xee also 295
McNamiira v. Harrison (la.), 46 N. W. Rep. « l^II ?;. Korf, 84 111. 225.
©76 [1890]. ^ Wright v. Meyer (Tex.), 25 S. W. Rep.
3 Sweet v. Morrison, 116 N.Y. 19 [1889]. 1122 [1894].
. * Holmes v. Oil Co., 138 Pa. St. 546
* See Sec. 530, infra.
§ 506. J CONTRACT STIPULATIONS. 433
estimate presented by a firm of engineers/ but the certificate of the surviv-
ing member of a firm of architects, if allowed to continue to act as superin-
tendent and architect, will be binding.''
506. Engineer Not Properly Designated. — Frequently the designation of
the engineer is ambiguous as to whether reference of certain questions are
made to the chief engineer or to some one of the subordinate engineers of
the staff. It has been held that work to be done to the satisfaction of the
engineer of the company had reference to the chief engineer,^ that estimates
of the " engineers in charge " of the road meant the engineers in cliarge of
the entire road and not the one in charge of the masonry in question, and
whose decision was subject to the approval of the engineer in cliief.'* When
there were three engineers, any one of whom would answer the description
of the contract, it was held a question for the jury to determine whether
the parties had, the chief engineer, his principal assistant, or sub-assistant
engineer, in mind at the time of contracting.' A reference to the chief
engineer of a company is to the person who fills the office of and is acting-
chief engineer when the adjudication is called for — he is the proper person.*
By the Scotch law the engineer must be designated by name, if he be made
the arbiter of questions and disputes arising from construction work, which
prevents this question from arising.' A reference to an engineer, ''so long
as he should continue to be the company's principal engineer,^' has been,
held to continue to the same person, notwithstanding the fact that the
company became merged in and amalgamated with another company, the
engineer continuing to be the engineer of the same division of the amalga-
mated roads, though he was not its principal engineer.*
If the certificate of the engineer be made a condition precedent, and he
die before his certificate is made, the owner may select another, and if the
contractor does not object at the time it seems he cannot object after he
has rendered his certificate.'
"When the reference is made to the engineer of the company, or to the
owner's architect, the decision and estimate should be made by the one
under whom the work was done,'" or by the one who holds the office when
the decision is called for." Under an agreement that work shall be valued
» People v. Croton Aq. Bd , 26 Barb. ' Tancred, A & Co. v. The Steel Co.,
(N. Y.) 240. 17 Scotch Law Repts. 463 [1890].
2 Davidson v. Provost. 35 111. App. 126. » In re The Wansbeck Ry. Co., L. R. 1
3 Barker v. T. & R. R. Co., 27 Vt. 766 C. P. 269.
[1885]. 9 Beecher v. Shuback, 23 K Y. Sapp.,
4Reilly v. Lee, 61 Hun (K Y.) 627 604.
[1891]. 10 Wangler v. Swift, 90 N. Y. 38.
^ Leebrick v. Lyster, 3 Watts & Serg. i' North Lebanon R. Co. v. McGrann, 33
365 [1842]. Pa. St. 530 ; Ranger v. Gt. Western R.
« Connor v. Simpson (Pa.). 7 Atl. Rep. Co., 27 Etig. Law & Eq. 35 ; Wallis Iron
161 [1887] ; North Lebanon R. Co. v. Mc- Wks. v. Monmouth Pk. Assn. (N. J.), 26
Grann, 33 Pa. St. 530 ;/■ see a7,so Wallis Iron Atl. Rep 140; and see Firth «. Midlanrl'
Works V. Monmouth Park Assn (N. J.). R Co., L. R. 20 Eq. 100, where engineer
26 Atl. Rep. 140 ; Ra- ger -y. Gt. Western died,
Ry. Co., 5 H. of L. Cas. 71 [1854].
434 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 507.
by "competent persons," it was held that the owner might name the archi-
tect as arbitrator.'
507. Delegation of Duties by Engineer as a Public Officer. — When an
'engineer is a public officer, and certain duties are by law or by the charter,
as of a city, required to be performed by him, such as the making of a cer-
tificate, he cannot delegate them to his assistant.'
The same is true of common councils and boards of public works. Any
and all duties requiring the exercise of discretion or judgment must be per-
formed by the person or persons designated by law. A common council
cannot delegate tathe board. of public works, nor to a committee, nor to the
city engineer, duties which belong to the council to determine.'
While a common council may not delegate its authority to provide or
select plans and specifications for a structure, yet it may adopt or ratify the
act of another (as an engineer) in procuring such plans and specifications,
and may provide for paying the reasonable cost thereof, even if the act of
procuring was unauthorized.* It may by ordinance delegate to a committee
authority to enter into a contract for street improvements, and the contract
jmade pursuant thereto is binding on the city.*
Where a city charter provides that the board of public works shall com-
pute the costs of public improvements, and apportion the same, it has no
authority to allow the clerk of the engineering department to make such
apportionment."
Canal commissioners have been allowed to delegate power to enter upon
lands of an individual and take materials for the furtherance of the work,'
and engineers have been delegated the power to enter upon lands and occupy
them for a station for surveying operations.®
-'Stoke V. McCiillough, 1 Cent. Rep. 55. 917; to property-owners the i ower to per-
' Bauer v. Lowe (Cal.), 40 Pac. Rep. 337; mit the location of livery-stables, Chicago
"Warren v. Ferguson (Cal.), 41 Pac. Rep. •». Stratton, 58 111. App. 539; to one of its
-417; Dowling v. Adams (Cal.), 41 Pac. members the location of street-lamps,
ilep. 413; and see McEntire v. Tucker Gulf, etc., R. Co. v. Riordan (Tex. ^, 22 S.
•<C()m. PI ),25 N. Y. Supp. 95; McNamara W. Rep. 519; and see 19 Amer. & Eug.
nc. Harrison, 81 Iowa 486. Ency. Law 461-469.
2 To a board (;f public works. Workmen * Koch v. Milwaukee (Wis.), 62 N. W.
-et ol '0. Chicai^o, 61 111. 463 [1871]; Floss Rep. 918; see also Re Em. I. Sav. Bank,
Union Bldg. Assn. v. Chicago, 56 111. 354; 75 N- Y. 388.
to a committee to sell property, Beal v. * Reuting^. City of Titusville(Pa. Sup.),
Hoanoke (Va.), 17 S. E. Rep. 738; to a 34 Atl. Rep. 916.
township to build a bridge, Pleasant View ® McQuiddy «. Vineyard, 1 Mo. App.
Tp. «). Shawgo (Kan.). 39 Pac. Rep. 704; Rep. 264. *
to a mayor to sell bonds, Blair «?. Waco ' Lyon v. Jerome. 13 Wendell 569 [1836]
<Tex.) (C. C. A,). 75 Fed. Rep. 800; nor to « See Orr v. Quimby, 54 N. H. 590
1874];
^rant licenses. Day ». Green, 4 Cush. s^e a^so Nevin «. Roach (Ky.), 5 8. W. Kep.
♦(Mass ) 433; to one not a qualified clerk of 546 [1887]; and United States v. Ormsbed
4he probate judge, the issuing of marriage- (D. C), 74 Fed. Rep. 207.
flicenses, Ashley 'o. State (Ala.), 19 So. Rep.
CHAPTER XVIIL .
INTEREST OF ENGINEER OR ARCHITECT IN COMMON WITH THE
OWNER OR CONTRACTOR.
HE SHOULD HAVE ITO SECRET INTEREST IN THE CONTRACT.
508. Provision that Engineer's Interest in the Works shall not Aflfect
his Decisions.
Clause: "No objection shall be made to, nor any attempt be made to
set aside, any decision, direction, estimate, award, etc., of the engineer
or architect, on account of or by reason of any (ordinary) interest,
which the said engineer or architect may have or hold in the company
in common with others, such as that of a stockholder in an incorporated
company, or a property-holder whose estate is subject to a tax or assess-
ment to pay for the contract work, or that of a subscriber to contribute
to its cost."
609. What Interest may an Engineer have in the Contract— Should
have No Secret Interest in the Works. — By the law of arbitration, an
arbitrator can have no interest in the award. If the engineer be strictly an
arbitrator or judge, he can have no secret interest in the result of his decisions,
nor can he be secretly allied to either party. Since different courts have
diverse views as to the real capacity in which an engineer acts, we may
expect to find the decisions various as the opinions entertained.
Since the decision in Ranger v. The Great Western R. Co.,* the principle
is pretty well established in the English courts that a general interest in the
company, such as any one might ordinarily possess, as the holding of shares
of stock in a company, will not disqualify a person from acting in the capacity
of an engineer to determine questions, differences, and disputes, or make
estimates of work done as between the company and the contractor, even
without the foregoing stipulation.
The grounds of this decision were, that the engineer was not an arbitra-
tor, but was a representative of the company; that as its representative
servant it was known to both parties that the engineer was interested on
the side of the company and that he largely profited by his connection
with it; and that the contractor having contracted with this knowledge, and
with his eyes open, put himself to a certain degree in the hands of the com-
pany, he cannot later object. It was known that the engineer might hold.
» 5 H. of L. Cas. 71 [1854].
435
436 ENGINEEUma AND ARCHITECTURAL JURISPRUDENCE. [§ 510.
shares of stock; it was an ordinary circumstance for officers to hold stock of
the company which employed them. He might have become possessed of
ishares any day; and whether he purchased them or inherited them, or they
came to him by devise, it cannot be maintained that the whole operations of
the company must at once have become convulsed by such an incident as
the engineer's becoming a transferee of shares of stock, or that he should be
required to resign therefor. This is the substance of the opinions of the
judges and lords in deciding this case, in which large sums of money were
involved. The engineer was declared to be the servant of the company, and
it was shown that the contract did not hold out or pretend to hold out to
the contractor that he could look to the engineer in any other character
than as the impersonation of the company; that he was a kind of referee
to whom certain matters were by the agreement of the parties to be referred,
not for his arbitration, but for his report and decision; that to some extent
he may be said to act judicially, but he must be considered the officer of
the company, and his decision as such accepted.
The engineer in this case was not a particular person, but was designated
as the " principal engineer for the time being," and might have been any
engineer the company appointed to make the estimates and give the certifi-
cates. Furthermore, the engineer's decisions were not made final and con-
clusive, but provisions were made for an appeal from his decisions to a board
of three arbitrators. However, the opinions expressed and the decision of
the case have been favorably commented upon, and followed in later cases
in both England and America.
In the New York Aqueduct cases,' before referred to and dwelt upon,
the court seems to have taken the same view of a similar provision, which
made the decision of the engineer conclusive upon the contractor, but ex-
pressly provided that his certificate should not be conclusive upon the city.
It therefore lacked the essential elements of an arbitration.
In a later English case it was said that " the broad principle laid down
in Ranger v. The Great Western By. Co., should not be frittered away by
attempting to draw distinctions between the nature and character of the
interest which the engineer may have in different cases." It was therefore
held that an engineer who was a lessee of a railroad, at a rent depending on
the amount to which he certified, was not disqualified to make certificates of
payments to the contractor.' This, it would seem, was a stretching to its
elastic limit the rule laid down in the case referred to.'
510. The American and English Courts Agree as to Interest an Engi-
neer can have in his Company. — Previous to the decision of Ranger v.
The Great Western Ry. Co. (1854), it had been held in Pennsylvania that
an engineer might be a stockholder in the company which employed him,
> O'Brien u New York, 142 N. Y. 671. Liverpool, 1 De G. «fe J. 369.
2HilU. South Staff. Ry. Co., lljurist ^ m\\oi v. S. Devon Ry. Co., 12 Jur.
(K 8.) 192; and see Scott v. Corp. of 445.
§ 510.] CONTRACT STIPULATIONS. 437
and still be legally competent to discharge the ordinary duties confided ta
him, if the contractor knew at the time he entered into the contract that
the engineer was a stockholder.' The court made it an exception to the
Tule when the interest was known to the parties [the contractor]. This ex-
ception is not confined to engineering and architectural work, but it is a
universal rule of arbitration. The interest must be a secret interest to dis-
qualify the aibitrator from acting judicially. The doctrine of the Pennsyl-
vania ciise has been followed by a line of cases in the courts of that state."* *
The courts maintain that any objections to the fact that the company is*
enabled to choose its own judge, and one directly interested, to decide or
sustain its quarrel are waived by the stipulation which creates the powers',
that it is competent for a contractor to agree to the decision of an interested
party if he choose so to do, and when with full knowledge he does so, hd
must abide the result.'
These cases have been referred to with approval in the Virginia courts,
^nd the same doctrine upheld. Decisions of engineers have been upheld
and made conclusive in the absence of fraud, gross mistake, or a failure te
exercise an honest judgment — not strictly upon the rules of arbitration,
but distinctly upon the authority of earlier decisions and by analogy to au
award by an arbitrator.*
If these stipulations be regarded strictly as submissions to arbitration,
the decisions of the courts cited cannot be sustained, unless the contractor
knew that the engineer was interested, as when he is a stockholder or lessee.
It was therefore held under a submission " to some disinterested third party '*
which consists of two arbitrators, one of whom is a stockholder in one of
the parties, that the award was void, unless knowledge of the fact can be
proved; and information given to a director of one of the parties a year
before was held to be no notice to that party.^ In this case it was expressly
stipulated that the parties should be disinterested; but it is submitted
that in any reference to arbitrators it is implied that the judges shall be dis-
interested.'
In the appointment of an engineer there seems to be no such implication,
and if parties want a disinterested engineer they should stipulate for it.
Yet in some courts, if the engineers interest exceeds the knowledge of the
contractor — ?*. e., if he be a stockholder in the company — his decisions and
estimates may not be obligatory and conclusive between the parties. It was
so held in Georgia in 1848.'' So where an architect with the usual powers
* MonongahelaNav. Co. v. Fenlon, 4W. Gratt. 459 [1858]; citing Ranger v. Great
& S. 205. Western Ry. Co.
2 See 4 Hiuris 469, 5 Casey 82, 4 Casey <* B. & O. R. Co. v. Cranston Co. (Md.),
224, 306. 17 Atl. Rep. 394.
2 The Memphis, etc , R. Co. v. Wilcox, • 1 Amer. & Eng. Ency, Law 672.
48 Pa. St. 161. ' Milnor v. The Georgia R. & Bkg. Co..
* B. i& O. R. Co. Polly Woods Co., 14 4 Ga. 385 [1848].
* See Sees. 363-365, supra.
438 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 511.
had guaranteed to his employer that the total cost of the structure should
not exceed a certain sum, which fact had not been disclosed to the builder
at the time the contract was entered into, the court held that the con-
tractor was not bound by the architect's decisions.^ The agreement, it
seems, need not amount to a guarantee on the part of the architect, but a-
simple assurance that the work shall not cost above a certain amount has
been held sufficient to relieve the contractor from the binding effect of the
architect's certificate.'
611. Moral Obligation of Engineer Forbids any Secret Interest. —
Though the binding effect of the decision of engineers has been estab-.
tablished beyond a doubt, when it expressly agreed that it shall be so by
and between the parties, yet if the engineer has any secret interest that
might prevent him from exercising a free and unbiased disposition and judg-
ment, and to give the contractor his just dues, he should not be allowed to-
hold the position, nor act as a referee.
One can hardly believe that an engineer who holds a few thousands of
dollars' worth of stock in a large corporation would be induced to sacrifice
his sense of honor, and perhaps his professional reputation, if detected, by^
making a low estimate of the contractor's work. To benefit himself a few^
dollars he must rob the contractor of thousands. An engineer whose
avarice was so prominently developed would not content himself with such,
trifling gains, but would be seeking larger game in darker fields of action,
and his true character would not remain long undiscovered. Whatever th&
law may be, no engineer that has the interests and success of his com-
pany truly at heart will maintain relations with it or the contractor which^
if discovered, may destroy its contractual relations and subject it to expen-
sive and ruinous litigation. Any efforts on the part of the engineer to con-
fer benefits upon his company to which the contract does not justly and
clearly entitle them may result in the company's loss and his own disgrace.
If the engineer desires to manifest his loyalty to his company and prove-
the value of his services, let him demonstrate it in drafting and letting the
contract, in the making of preliminary tests and investigations so as to
enable contractors to bid understandingly and closely, and by securing the
best location and the most economical design and construction. If sharp
practices are to be indulged in let the parties each for themselves carry^
them out; it is not or should not be the office of an engineer to encourage
them nor give his support to them, much more be a party to them. This.
is, without doubt, the general feeling and sentiment of the engineering
profession."
» Kimberly «. Dick. 41 L. J. Ch. 38. 369; Elliot v. 8. Devon Ry. Co., 2De G. &
'Kemo «. Rose, 1 Giff. 258 [I860]. S. 17; Mcintosh v. Midland Cos. Ry. Co.,
• The fact that the engineer hasan interest 14 M. & W. 548; Russell's Law of Awards,
"With t e company or his employer as a p. 116; Monon. Nav. Co. v. Fenlon, 4 W.
Stockholder, Ranger v. Gt. W: R. Co., 5H. & S. 205; B. & O. Ry. Co. v. Polly Wooda
L. Cas. 72; Scott v. Corpn. of L., 1 De G. «& J. Co. , 14 Gratt. 459, and see Union R. Co. «,
§ 514.] CONTRACT STIPULATIONS. 439
The fact that the architect was called as a witness in an action between
the parties involving the matter in dispute does not disqualify him as a
referee/ The possible bias of an engineer in favor of the plans and specifi-
cations he has drawn or revised is not sufficient to disqualify him from
acting as an umpire of questions referred to him in the contract.''
612. Provision that Contract may be Rescinded if the Engineer or Any
Officer of the City or Company is Interested in the Contract.
Clause: "And the contractor further declares and agrees that no
member of the engineering department [corps of engiiieers] is now,
nor shall become, interested in this contract, nor in the works under-
taken under it, nor in the supply of work or materials in connection
herewith; and it is further agreed on his part that if it shall be known,
or discovered, that any such person or persons is [arej interested as
aforesaid, the city, company, or owner may rescind, annul, or cancel
this contract at any stage of its performance, and the rights, liabilities,
and relations of the parties shall be the same as if the contractor had
committed a material breach of his contract, the sums denominated
liquidated damages shall be forfeited to, and belong to, the said city,
company, or owner, as provided in Sees "
513. Provision that Gifts, Presents, and Bribes shall Be Sufficient Cause
for Canceling Contract.
Clause: "And it is further provided and agreed that should the con-
tractor or his agent offer or giwe any gratuity, presents, or bribes to
any officer, agent, or servant of the corporation, such act or acts shall
be sufficient cause for the cancellation of this contract and of every
agreement and obligation herein contained, and for such act or offer
the contractor shall forfeit to the said company or city the full amount
of damages assessed and described in this contract, as liquidated dam-
ages for the nonperformance of his contract in the manner hereinbefore
referred to and explained.^'
514. The Engineer can have No Interest in the Contractor's Business. —
Although an engineer may be an employee of the company or owner of the
works, and may have and hold individual interests in the company or em-
ployer's business, yet the decisions are unanimous in forbidding any mutual
Dull, 124 U. S. 173 [1888]; (6m< see Smith 15. [1848]; B. & O. R. Co. v. Canton Co.
B. C. & M. Ry., 36 N. H. 459; Milnor v. fMd.), 17 Atl. Rep 394. It must not be
The Georgia R & Bkg. Co., 4 Ga. 385 such an interest as shall amount to a fraud
[1848]; B. &0. R. Co. v. Canton Co. (Md.), to conceal from the contractor, Kimberly
17 All. Rep. 394), or as a lessee of the com- ■». Dick, L R. 13 Eq. 1; Kemp v. Rose, 1
pany, Hill v. So. Staffordshire Ry. Co., 11 Gift'. 258; Pawley v. Tnrnbull. 3 Gift. 70.
Jurist N. S. 192, has been held not to be ^ Barclay «?. Deckerhoof (Pa. Sup.), 33
sufficient to impute bad faith to him in Atl. Rep. 71.
making his estimates or to disqualify him ^Farquhar v. Hamilton, 20 Out. App.
from acting as referee. Numerous cases 86 [1893]; McNamee ®. Toronto. 24 Ont.
express the opinion that the interest should Rep. 313 [1894]; Adams v Railway Co.,
nut be secret, nor such as is inconsistent 16 Scotch Sess. Cas. 843 [1889], but see
■with an impnrtial find unbiased decision. Connell i). Canadian Pac. R. W. Co., 16
Elliot V. S. Devon Ry. Co., 2 De G. & S. Ont. Rep. 689; and see Jackson v. Barry
17; Russell's Law of Awards, p. 116; Smith R. Co., 9 Times L. R. 90; a wcf Hudson on
tJ. B. C. & M. Ry., 36 N. H. 459; Mil- Building Contracts 290.
nor V. The Ga. R. & Bkg. Co., 4 Ga. 385
440 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§514.
interest or any secret relations between the engineer and contractor. He
may not accept gratuities nor profits from the contractor.*
If the engineer were an arbitrator merely, it would be diOcult to explain
why the company should demand a disinterested judge and the contractor
should accept one that was not disinterested. Here, as in so many other
particulars, the status of the engineer is modified and distinguished by his pe-
culiar relations to the parties. With regard to the company and the outside
world, the engineer is the trusted agent of the company. His relations to
the company are defined by the laws and principles of agency, and except
so far as his duties as an umpire and §'t^«5i-arbitrator require him to be
unbiased and disinterested, he is the agent of the company, and for many
purposes the impersonation of the company itself.' The law does not
recognize or tolerate conduct on the part of an architect which is hostile to
his employer and in the interests of an adverse party with whom he is
dealing.' f
If an agent who is authorized to enter into a contract on behalf of his
employer or principal accepts a secret payment or gratuity from the party
with whom he is to negotiate, it will vitiate the contract.' The corrupt
practice of giving commissions to agents, engineers, and officers who select,
adopt, or purchase certain materials of constructions or certain styles of
machinery and appliances is a system of doing business that is certain to
lead to the most pernicious results. Such contracts are not enforceable by
the party offering or giving the gratuity, and the commission or contract to
pay a share of the profits is not enforceable." An engineer who accepts
such bribes or presents, is constantly under a cloud, and his reputation is in
the hands of parties from whose power he should be absolutely free. As to
the object of the commissions or gifts there can be but one conclusion: they
are given to gain the engineer's favor, — whether at the expense or loss of
the company or employer or not, does not matter. A charge made in writ-
ing against a supervising architect that he had given work upon a certain
building to certain parties who paid him a commission therefor is not
actionable as slanderous or libelous.' A covenant by the architect with the
builder to receive payment from him is sufficient to discharge the owner
from his obligation to pay him his salary or commissions.' J
The engineer is in a position of trust in relation to his employer, having
1 Ranker v. Great Western Ry. Co., 5 H. 856 ; O'Brien v. Mayor of N. Y., 139 N. Y.
of L. Gas. 72 : Williams v. Chicago, etc., 543.
Ry. Co., 113 Mo. 463. ^ Smith v. Sorby, L. R. 3 Q. B. D. 552.
2 Lewis V. Slack, 27 Mo. App. 119. He ^ Atlee v. Fink, 75 Mo. 100 ; see Com-
is so far the agent of the company that monwealth v. Phila. (Pa ), 35 All. Rep.
notice to him of matters pertaiuiu^ to tlie 195 ; Mason «. Bauman, 62 111. 76.
work is notice to the company. Danville ^ ^^^g ^. Dunleavy, 80 Mo. 558. •
Bdge. Co. V. Pomeroy, 15 Pa. St. 151 « Tahrland i). Rodier, 16 L. C. I. Rep.
[1850] ; see also, as to engineer's agency, 473 ; and see Norris v. Dav, 10 L. J. N. 8.
Snaith v. Smith, 27 KY, Supp 379; Mul- 43; Lloyd's Law of Building (2d ed.), §
holland v. Mayor (N. Y.), 20 N. E. Rep. 11 ; and see Gillraan v. Stevens, 54 How.
* See Sees. 8.4 and 85, supra. f See Sec. 849a, infra. X ^^ Sec. 42, supra.
§ 514.] CONTRACT STIPULATIONS. 441
been employed with special reference to his skill, judgment, and integrity.
Any acts or circumstances that tend to deprive the employer of the free and
unbiased exercise of an honest discretion will destroy the effect of what has
been done. It is not necessary that the agent or engineer shall have
yielded to the influence of the bribe, or that he shall have been induced to
act corruptly ; the fact that he might have been biased is sufficient reason
for the employer to rescind the contract. Even though it be proved that
the company has not actually been injured, and that the bribe has failed to
have its intended effect, the principle of the rule is the same, and such con-
tracts cannot be enforced.^
Collusion and fraud between contractor and engineer for contractor's
benefit and to company's prejudice in making up of estimates will vitiate
and avoid the same." Any secret interest of the engineer in the contract
unknown to the company or his employer being inconsistent with the
fiduciary relations supposed to exist between him and his employer will
avoid his estimate, and this is so, even though his decisions and estimates
are correct, and notwithstanding the fact that the mind of the engineer has
not been biased by the relations he has held to, or by the commissions he
has received from, the contractor." *
It therefore follows that an engineer cannot be a subcontractor of works
which he must estimate, and in respect to which he is to certify. A contract
between the engineer of a telegraph company and the construction company
who had contracted to lay the cables of the telegraph company, by which the
engineer, who was to certify to the satisfactory and successful completion of
the line, was to lay the cable for a sum of money, constituted a fraud, which
entitled the telegraph company to have their contract rescinded, and to
receive back money which they had paid under the contract. It was held
that an agreement with the engineer which had the effect of depriving the
company of a disinterested engineer and of the full benefit of their contract
was sufficient to relieve the telegraph company from the obligations of their
agreement. The fact that there was no concealment, nor any intention to
conceal on the part of the contractor, did not change the rule. There must
be not only an absence of concealment, but a full and complete disclosure of
the relations of the engineer and contractor. Upon every principle of jus-
Pr. (N. Y.) 197, where the architect had Pa. St. 497 ; Kemp v. Rose, 1 Giff. 258 ;
ttccepted advances or loans from the con- Kimherly v. Dick, L. R. 13 Eq. 1.
tractor ; and see Marsh v. Masterton, 101 ^ Panama & So. Pac. Tel. Co. v. Tel.
N. Y. 401. Works Co . L. R. 10 Ch. App. 515 : Har-
' Ha-rington v. Victoria G. Co., L. R. 3 rington v. Victoria Dock Co., 39 L. T. Rep.
Q B D. 549. 130 [1878] ; Scott v. Liverpool, 3 De G. &
^'Hosteller v. Pittsburgh, 107 Pa. St. J. 334; Smiths. Sorby, L. R. 3 Q. B. D.
419; Hartupee v. Pittsburgh, 131 Pa. St. 552 [1878] ; see, Jiowever, Cox v. McLaugh-
535 ; Lucas Coal Co. «. Del. & H. C. Co., lin. 76 Cal. 60; and see Union R. Co. v. Dull,
148 Pa. St. 227 : McCauley v. Keller, 130 124 U. S. 173 [1888] ; Largey v. Bartlett
Pa. St. 53 [1889]; Glessner v. Patterson, (Mont.), 44 Pac. Rep. 962.
164 Pa. St. 224 ; Gonder v. R. R. Co., 171
* See also Sec. 42, supra.
442 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 514.
tice and fair dealing it is absolutely necessary that the company be informed.*
Nor are the consequences relieved from, by the fact that the company woald
have adopted and acquiesced in the arrangement had they been informed.
They should have had the option of deciding whether they would or would
not acquiesce in their engineer being placed in an anomalous and dangerous
position in which his interests would necessarily conflict with his duty.' If
the cable, or any part of it, had been laid, the contractor probably could
have recovered for what had been done, but not under the contract, nor by
i^he certificate of the engineer/
A seemingly contrary decision has been rendered in California in a case
in which the facts are very similar, but the court was divided, and the minor-
ity of the justices delivered a strong dissenting opinion. The suit was
brought by a 5wZ>contractor against the principal contractor for the price of
Work done, so it will be seen at once that neither party to the suit held the
relation of employer or principal to the engineer. The work in question was
a railroad, which was to be built according to a general line and profile, sub-
ject to such variations as the chief engineer of the road might direct. A
subcontractor was to receive a fixed price for the work whether the varia-
tions ordered by the engineer made the work heavier or lighter. During
the progress of the work the subcontractor entered into a secret agreement
with the engineer by which he was to receive ten per cent, of the profits of
the contract if he would, without impairing the character of the road, or
doing anything to the disadvantage of the railroad company, make such
variations wherever possible as would make the work less expensive. It was
proved that both the principal contractor and the company were willing that
the engineer should make the work lighter, without injury to the company's
interests. It was proved further that the changes in some instances were
made at the request of the company and principal contractor, and that all
variations were submitted to and approved by them. It was shown that by
extraordinary diligence and application on the part of the engineer that it
was possible to so perfect the final location of the road as to suit the con*
venience and interests of all the parties concerned. The changes were made
openly in all respects, and were indorsed by the parties, and the majority of
the court, while admitting that the agreement was one not proper to have
been entered into, allowed a recovery upon the ground that they could not
see how the principal contractor had been injured by the arrangement, and,
therefore, why it should prevent the subcontractor from recovering the con-
tract price from him.*
If this case had been a suit by the contractors to recover from the com-
* Panama & So. Pac. Tel. Co. i). India ' Panama, etc., Tel. Co. v. India TeU
R. G. P. & Tel. Works Co., L. R. 10 Ch. Works Co.. supra.
App. 515. The owner cannot complain ^ Panama, etc., Tel. Co. v. India, etc.,
"when he has knowingly employed one of Tel. Works Co., L. R. 10 Ch. App. 515.
the contractors as a superintendent, Shaw *Cox v. McLaughlin, 76 Cal. 60.
t>. Andrews, 9 CaU 73.
§ 515.] CONTRACT STIPULATIONS. 443
pany there is little doubt but that the facts of the case would have pre-
vented a recovery upon the contract. The fiduciary relations between an
agent and his principal forbid any such compact between the agent and
other parties interested.
Though the engineer was not the confidential agent of either contractor,
he was the umpire between them and between either of them and the com-
pany. He was to ascertain the proportion of work performed and to certify
to installments due, and was supposed to be a disinterested umpire. When
he became a secret partner of one of the contractors employed, he disquali-
fied himself from acting as an umpire and thereby rendered the performance
of the contract impossible. The principal contractor was injured by being
deprived of an impartial engineer, and by the risk of losing his own contract
rights with the company, on the ground that the company would not be
bound by alterations assented to under the advice of a corrupted engineer.
There can be no doubt but that the share in the profits of the subcon-
tractor tended to bias the free and honest judgment of the engineer. His
profits would be increased as much by "changes to the injury of liis company
as by those which were indifferent or advantageous to the company. The
fraud constituted such a breach of the contract as should have prevented a
recovery upon it, and although the subcontractor properly may have been
allowed to recover to the extent that the principal contractor had been
benefited by their work not exceeding the contract price, it should have been
distinctly held not a recovery upon his contract.*
It is the policy of the law to deal severely with any crooked transactions
between an agent and those with whom he negotiates on behalf of his prin-
cipal, and the same policy is pursued in dealing with arbitrators who have
allowed themselves to be placed in compromising positions.
515. Profits Made by an Engineer or Agent in the Conduct of His Em-
ployer's Business Belong to the Employer. — It is a well-established principle
of law that the profits, directly or indirectly made in the course of, or in
connection with, one's employment as a servant or agent, without the sanc-
tion of the employer or principal, belong absolutely to the employer or
principal. If an engineer be an employee or agent of his employer the
same rule of law must hold, and whatever commissions an engineer receives
for the selection or adoption of certain materials or appliances or by reason
of certain purchases belong to the company, and he may be made to ac-
count to his company for the full amount received. An agent can acquire
rights in the property of his principal only through a personal contract
with him.'
An interesting case is one where a ship was consigned to a party to be
sold for not less than $90,000. An agent was employed by this party to sell
the ship, who having vainly attempted to sell the ship on the terms stipu-
^ Dissenting opinion in Cox V. McL^wgh.- 'Paige v. Akins (Cal.), 44 Pac. Rep.
lin, 76 Cal. 60 [1888] ; s. c, 18 Pac. Rep. 100. 666.
444 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 516.
lated, took it to himself at $90,000, and soon afterwards sold it for $160,000 —
$75,000 cash and the remainder on credit. The agent neglected to inform
the owners that he had taken the ship to his own credit or that he had
resold it. He paid the $90,000 to the parties and it was remitted to the
owners. In a suit in equity by the owners to compel the agent to account
for the profits he had realized by the resale of the ship, the court held that
the relation of agent and principal was established between the owners and
the broker, and that the latter must account to the former for the profit
made in the transaction.*
A case more directly in point with the practice that is in vogue in con-
struction of receiving and accepting commissions, is one in which a broker
was authorized to purchase a particular ship on the basis of an offer of
£9000. The vendor of the ship had authorized his broker to sell the same
ship for £8500, with permission to retain to himself all that he received
above that amount. The brokers agreed to divide the profits, and the
agent of the purchaser received £225 as his part of the profits. In an ac-
tion at law it was held that the broker was an agent of the purchaser to
secure the ship as cheaply as it could be got, and that he must pay over the
amount received from the other broker to the purchasers; that there
was a legal duty imposed upon the agent to pay the profits that have
reached his hand to his employer as belonging to him absolutely, and that
where the amount is ascertained a court of law will take the case, there
being no necessity for an accounting.'
This case is not unlike the ordinary cfse in construction work where an
engineer is directed to recommend an equipment or to purchase the requi-
site materials, as in the case cited. He is expected to exercise his best judg-
ment and discretion in the selection of the equipment and materials, and it
is required of him that he shall purchase them as cheaply as they may be
had. If he accepts two, three, or five per cent, of the amount paid for stuff
from the seller, he is paying that much more for it than he need pay, and
may be compelled to account to his emplover for the excess paid. •
A surveyor and superintendent of a cemetery association has been held
not such a fiduciary as one who could not purchase and speculate in the
lots of his employer.' A city surveyor has been allowed to recover a reward
for discovering, locating, and describing real estate belonging to the city, in
absence of proof that it was part of his official duties."
516. Conspiracy or Collusion Between Contractor and Engineer. — Con-
spiracy and collusion between the contractor and engineer to give false
certificates will prevent a recovery in an action by the contractor or his
assigns for payments due under the contract. It is a good answer to a sub-
1 DeBuscshe v. Alt., L. R.8 Ch. D. 286 » Palmer v. Cemelery, 122 N. Y. 42&
[1877-8]. [1890].
* Morris «. Thompson, L. R. 9 Q. B. 480 " Pilie v New Oileans 19 La. Ann 274
[1874]. ' [1867J ; see ^//so Wills v. Abbey, 27 Tex. 202.
§517.] . CONTRACT STIPULATIONS. 446
sequent collateral guaranty to pay for the work done, if the fraud be dis-
covered after the promise was made to pay. It seems there is no obligation
upon the company to notify thq assignees of their discovery of the en-
gineer's fraud, and his conspiracy with the contractor, until steps are taken
to enforce the agreement.*
An employer or owner has a good cause of action against an architect or
engineer who has falsely and negligently, and acting in collusion with the
builder, represented to the owner that a certain amount of labor and mate-
rials have gone into the house, whereby the owner was induced to pay the
builder an amount of money called for by the contract.'
517. Engineer should Be a Disinterested Person and the Agent of Neither
Party.— Contractors will in many cases fail to appreciate a rule by which
an engineer may be interested with the company or owner in the work pro-
jected, and under which he can have no interest whatever in the contrac-
tor's business. As an umpire or arbitrator alone there is no just reason
why he should not be allowed to have the same interest in the one side as
in the other side, if the parties are both informed of the interest held, but
an engineer has a deeper relation and a further duty to his employer than
he owes the other party. That this duty and obligation is inconsistent
with the character and duties of a judge cannot be denied, and it is much
to be regretted; yet so long as owners and companies having work to be done
they will insist upon making the terms of the contracts, and require that
such relations shall exist, and so long as contractors are willing to submit
their rights to his judgment and forego an appeal from his decision, they
will remain in use.
A custom resorted to in some localities of stipulating for a disinterested
engineer named, whose fees and salary shall be shared equally by both par-
ties, does avt^ay with many of the objections, and secures all the advantages
that the parties pretend to provide for in the contract. Engineering under
such a system becomes a profession in its strictest sense, and engineers be-
come arbitrators, or umpires, in every sense of the word. That such a
practice should become general cannot be denied. It would certainly be
satisfactory to engineers and to contractors, and it would save a great
amount of litigation that is now being carried on. When the construction
contract provides that the expenses of the arbitration shall be borne by the
contractor and owner equally, it is no defense to an action by the engineer
against the party who selected him for the value of his services, nor is it
error for the court to exclude the contract, as its admission would not ben-
efit the defendant.*
' Wakefield & B. D. Bank v. Norman- ^ Corey v. Eastman (Mass.), 44 N. E.
town Local Board, 44 L. T. 697 ; see Rep. 217.
O'Biien v. Mayor of N. Y., 139 N. Y. 543, » Alexander v. Collins (Ind. App.), 28 N.
142 N. Y. 67. E. Rep. 190 [1891].
446 ENGINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 518.
518. Company or Owner may Employ an Engineer Known to be Inter-
ested in the Contract. — If an owner or company knowingly employ a con-
tractor as a superintendent or engineer, payment upon his certificates
cannot be avoided on the ground of inconsistency.* In such a case the con-
tract of employment must be clearly proven. The nature of the duties of
the two positions being inconsistent, a contract of employment of the con-
tractor as superintendent of his own work cannot be implied.^
In England, statutes have been passed making it a penal offense for a
public surveyor to be " concerned or interested " in a contract for work
which he is to estimate or to which he is to certify. A contract by which
the surveyor was to receive a percentage of the amounts he should certify
to be due was held to be within the act, and that the surveyor was liable to
a penalty in respect to each contract.'
618a. Differences Between the Engineer in Charge and His Associate or
Superior Officers. — Pertinent to this subject of " interest " of an engineer is
a circumstance or position into which any engineer's experience may place
him. It is that of dictation or coercion of superior officers, or persuasion of
associate officers, who display and even onay have an unusual interest in the
success of the contractor. Such cases come up most frequently in govern-
ment or city work, where the engineers and officers are appointed under
civil-service rules, and where the subordinate officers are required to swear
to the accuracy of their measurements, estimates, and inspections. Under
civil service, subordinates do not feel that they owe their positions entirely
to the good-will and favor of their superiors, and they are less likely to be
servile to political machinations. The. dictation usually takes the form of
suggestions as to quantities or classifications which, if not acted upon, may
be given the formality of orders to classify materials in a certain way, or to
increasie the quantities to suit the fancy or profit of the resident or division
or chief engineer. Such instances have occurred in the experience of most
engineers, maybe when they were younger in the profession and were per-
haps less experienced in the ways of the world, and when they would hardly
believe, or scarcely realize, the real motive or inwardness of the suggestions
and orders. The author's experience has been no exception, and he can
clearly recall orders issued from a carriage driven along the line of works to
allow a uniform depth over the whole line for the mucking or grubbing in-
dependent, and irrespective of, accurate measurements to the contrary,- — to
the profit of the contractor.
In such a position the engineer* — i.e., the real engineer in charge —
must either swear to what is untrue or he will incur the displeasure of his
1 Shawu. Andrews, 9 Cal. 73 ; McCarthy » Whitely t?. Barsley, L. R. 21 Q. B. D.
V. Loupe 62 Cal. 299. 154 ; and see 19 Amer. & Eng. Ency. Law
2 Friedland v. McNeil, 33 Mich. 40 470, note.
[1875].
* The word eiagineer is used because in most cases the officer above will be a commis-
sioner or political appointee who has no rigkt to the title.
§ 518a.] contract stipulations. 447
superior officers, for by the contract terms frequently, and by the rules of
the government department having the work in charge, it will be required
that the engineer in charge, and the other officers through whose hands his
estimate passes, shall take oath to its accuracy and truthfulness. His rafusal
may even endanger his position if the supreme officer of the department
•be also in strong sympathy with the contractor, or has been trained in those
methods of engineering. In such a case there can be but one straight and
narrow path under any circumstances, whether it be one of military dis-
cipline or one of civil construction, and that is to either execute a correct
estimate and swear to it, or to decline to act and to even resign if required
so to do, in preference to committing one's self to such dishonest practices.
If there is anything that the engineering profession demands more than any
other profession, it is honesty. It requires square men with backbone and
unflinching courage, and no man need fear, nor regret the loss of a position
which requires him to be dishonest, and much less need he regret the asso-
•ciation of men given to dishonorable and fraudulent practices, however high
their position.
A doubting saver of souls, a hesitating guardian of the health, or a timid
public prosecutor can better be tolerated than a civil engineer who knows
not the weight of unadulterated honesty. Parsons, doctors, and counselors
can be judged, but the engineer knows no higher authority. He is the judge.
If there be any one thing that every young man who aspires to become a
successful and self-respecting member of the honorable profession of
engineering should base his career upon, it is honesty, pure and simple,
unwavering and undoubted.
That conflict does exist between assistant and chief engineers, or between
•city engineers and street commissioners or superintendents of public
works, or between city or state engineers and the comptroller, is evident
irom the cases that have been cited in various parts of this book.*
* See cases in Sec. 445, supra.
CHAPTER XIX.
MATTERS OF DOUBT AND DISPUTE SUBMITTED TO ARBITRATION.
THE APPOINTMENT OF ARBITKATORS AKD AN UMPIRE.
519. Provision that Disputes shall be Submitted to Two Arbitrators and
an Umpire.
Clause: "It is further agreed that if any dispute or difference shall
arise between the said owner or his architect and the builders with
respect to any matter or thing arising out of or in anywise relating
to the contract, and not by these conditions expressly agreed to be
determined by the architect, that such difference or dispute shall^
immediately after it has arisen, be referred to the final determination
and award of two competent persons or arbitrators, one of whom shall
be chosen by the said owner and the other by the builders, and of aa
umpire to be named by the two arbitrators, and the award of the arbi-
trators, or of their umpire, if they disagree, shall be final and con^
elusive as to the matters referred to them for so much as such award
shall be made in writing under their or his hands or haiid, and ready
to be delivered to the said owner and the builders within calen-
dar months after such reference, or within such further time, not
exceeding calendar months, from the time of such reference, as
the arbitrators or their umpire shall by writing, under their or his
hands or hand, from time to time appoint. Such award of said arbi-
trators or umpire shall be condition precedent to a final settlement for
the work done under this contract and to any liability on the part of
the owner, company, or city for any sum or sums of money not pre-
viously and voluntarily paid by him [it]. The costs and charges
attending such reference shall be in the discretion of the arbitrators
or their umpire, and shall be paid as they or he, by their or his awards
shall direct.
"And it is hereby further agreed that if either party shall fail,,
neglect, or refuse to choose or select an arbitrator as above provided
within ten days after written notice from the other party, or the twa
arbitrators shall be unable to agree upon an umpire within ten days
after they have failed to come to an agreement, then it is mutually
agreed that the president of the American Society of Civil Engineers
shall be and hereby is authorized to select such arbitrator or umpire,
at the request of either party to the contract, and without notice ta
the other party, which arbitrator or umpire so chosen shall be and is
hereby endowed with all the powers of those selected and appointed as
described hereinbefore [or hereinafter].^'
Clause: "If on the completion of the work there shall remain
448
§ 520.'] CONTRACT STIPULATIONS. 449
between the engineer and the contractor any difference or dispute upon
any of the matters or things referred to or specified in clause No. ,
"Engineer's Determination/' or as to payments to be made to the con-
tractors, the same shall be referred to the award and decision of Mr.
, Mem. Am. Soc. 0. E., or, failing him, to some other
engineer to be mutually agreed upon, or in case of failure to agree
upon an engineer, to some other engineer to be appointed by the presi-
dent of the American Society of Civil Engineers, whose decision shall
be final and conclusive between the parties. The arbitrator shall have
power to determine the costs of any proceeding under this clause."
It will not be out of place to discuss come of the difficulties met in
such a submission and some of the safeguards to be observed.
In leaving such questions to arbitrators it would seem best to name
them, and to provide for their selection in case of failure to act, as in case
of death or incompetency. If their appointment is merely provided for
and requires in any way the assistance and co-operation of the contractor,
and he refuses to take part in the selection of arbitrators, there is no way,
it seems, to compel him to do so. Moreover, he may revoke the submission
at any time before the award is made. When the decision of all matters is
left to the engineer in charge, he usually acts at once without the formality
of having to qualify or of being selected, and when he has rendered his
estimate it is then too late to question its validity and conclusiveness, or to
revoke the power conferred upon him to settle the disputes.
To avoid these questions in a submission to arbitration, the award
of the arbitrators should be made a condition precedent to liability on
the part of the owner, and to any right to recover on the part of the con-
tractor.
To be entitled to the protection of such an arbitration clause, the party
seeking its protection must show that he took steps for the selection of
arbitrators.* *
620. Certain Matters to be Considered in a Submission to Arbitration.
— In adopting this clause, which submits important questions and disputes,
to arbitration, several questions arise which should be ascertained and settled
before.it is finally inserted in the contract. It should be ascertained, first,
that the subject matter is a proper one for arbitration ; secondly, have the
parties to the contract power to submit the questions in dispute to arbitra-
tion ? thirdly, are the arbitrators named competent to act in that capacity ?
fourthly, the agreement should be made a submission to arbitration, and
not a mere appraisal ; fifthly, the rules or laws by which the arbitrators are
to be governed and the means by which the award is to be enforced should
he described and set forth.
» Williams v. Shields (Com. PI.), 9 N. Y. Supp. 502.
* See also, in regard to arbitrators, the following sections, viz.: Revocation of Sub-
mission, Sees. 347-357 and 400-406: Decision of Questions of Law, Sec. 436; Fraud.
Partiality, Corruption, or Wilful Misconduct, Sees. 418-443 and 516; Correciion of
Mistake in Award, Sees. 483-490, supra.
450 ENGmEEUlNG AND AUCIIITECTURAL JUIUSPEUBENCE. [§ C21.
621. What Questions may be Submitted to Arbitration. — Any matter
that is the subject of a dispute or controversy and that is a lawful subject
matter of a legal contract may become a proper question to submit to
urbitration by the proper authorities. The dispute should not be, though
perhaps it could be, one which is a matter of fact ; the courts hold some-
times that there must be the element of doubt or ignorance as to the
matter in dispute, in order to make the arbitrator's decision final and con-
clusive.^ *
A finding of a referee on conflicting evidence that a contractor had
performed extra work, for which he was entitled to compensation, will not
be reversed, as against evidence, merely because the contractor did not
present his bill for extras till after he had received his final payment on
the contract."
522. What Parties may Submit Questions to Arbitration. — In general
any person who can contract may be a party to a submission to arbitration
as to his own affairs. If he be incapacitated from making a contract, he
certainly cannot be held under a contract to abide the award of arbitrators.
The liability of any party under an award may in general be measured by
Lis contract obligation. An infant may avoid it or not, according to his
election when he becomes of age ; with a married woman it depends upon
whether she has the independent and individual power to contract with
regard to her own estates, and whether she can convey her own property.
Bankrupts, insane persons, idiots, and other like persons cannot submit
their affairs to arbitration without the consent and approval of their assigns
or guardians.'
An agent cannot without express authority submit his employer's affairs
to arbitration, not even when he has instructions to settle out of court. A
iactor, broker, or commission merchant cannot bind his principal by a sub-
mission, nor can matters of public interest and trust be submitted to arbi-
tration by an oflBcer to whom they are intrusted.* An officer of the United
States cannot submit the affairs of the government to arbitration unless
authorized so to do by special act of Congress.^ However, a principal
may adopt or ratify the unauthorized acts of his agent in submitting his
affairs to arbitration, and such ratification may be implied from circum-
stances.'
It may be doubted if authority to an engineer or public officer to pre-
pare and enter into a contract for the construction of works would author-
ize him to insert in the contract such a clause for the submission of disputed
questions to arbitrators unless the contract form employed had been adopted
1 Amer- & Eng. Ency. Law, vol. i. p. 658 *Mann v. Richardson, 14 Amer. Law
and vol. xxix. p. 943, and cases cited. Reg. (N. S.), 578.
« Porter v. Swau (City Ct. Brook.), 35 ^ 1 Amer. & Eng. Ency. Law 652.
N. Y. Supp. 10S7. « 1 Amer. & Eng. Ency. Law 653-4.
« 1 Amer. & Eng. Ency. Law 648-9.
* See Sec. 525, infra.
§522.] CONTRACT STIPULATIONS. 461
by the city or department of the government on whose behalf it was ex-
ecuted. It seems that the engineer or officer should be specially authorized
to make such a stipulation for arbitration. Contracts containing clauses for
arbitration and referring matters to the engineer's determination are fre-
quently made, and so far as the author knows the question of their validity
has never been raised or decided in the higher courts.
In the contract forms adopted by some of the governmental departments
and by nearly every municipal corporation, it is the custom to provide that
the engineer, or a board of three or. more disinterested persons, shall de-
termine all questions in dispute, and these are usually held to be valid
and binding in our courts. The bringing suit by the government or city
against the contractor, or the use of such a stipulation as a defense, might
be such an adoption of that part of the contract as would constitute a
ratification of the engineer's act in embodying it in the contract;' but if
a contractor brought suit against the government or a city, and the latter
sought to avoid the clause by pleading that the engineer had no power to
make such a submission, there is nothing to prevent it from so doing*
How far the existence of a general custom to employ such a clause in con-
struction contracts might prevail in establishing authority to insert such a
clause would depend upon the justice and the usage of the government or
city in previous contracts for similar work. This may be a good reason
why disputes and questions arising in government work are rarely left to
disinterested arbitrators, but to the engineer in charge of the work, and it
may be cited as some evidence that the decision of an engineer is not re-
garded strictly as a submission to arbitration.
A corporation which can sue, be sued, appear in court, defend, and
prosecute to final judgment and execution, has power to submit a demand
made against it to arbitration. It is well settled that private and municipal
corporations, towns, and villages, unless forbidden by their charters, can
submit matters in dispute to arbitration.'' Selectmen, supervisors, county
courts, overseers of the poor, and the common councils of cities have been
accorded powers to compromise suits and to submit questions to arbitration.*
It has even been held that the council of a city could intrust the selection
of the arbitrators to the city attorney." It has been held, however, that th&
charter of the city of New York gave the Common Council no power to
settle claims against it.^ A committee made up of delegates from the
selectmen of two or more towns cannot bind their respective townships by
a submission if each one is not expressly authorized to submit the affairs
of the township to arbitration." If a city attorney, without authority;
' Connett v. City of Cbicaco, 1 14 111. 233; ingham, 26 Vt. 345 [1854].
Ande;-.-on v. Mil'er (Ala.). 19 So. Rep. 303. M Amer. & Eiig. Ency. Lnw 650-654.
«1 Amer. & Eng Ency. Law 649 ; 15 < Kane v. Fond du Lar. 40 Wis 495.
Amer. & En</. Ency. Law 1051, and refer- ^ McGuinness v. New York, 26 Hun 142.
ences given; Walnut Tp v. Rankine (la.), * Hjiddam v. East Lyme (Conn.), 5 AtL
23 Re'ptr. 750 [1886]; Dairy mple v. Wbit- Rep. 368.
452 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 523.
submits a question to a reference, the other party cannot defend a suit
by the city to enforce the award on the ground of its illegality, since
the action brought by the city is a ratification of the agreement by the
attorney.^
An award and decision that a contractor was entitled to pay for extra
work rendered by a board of health who had been designated by a street-
cleaning contract as a board of arbitration to decide disputes in regard to
the work done, was held binding upon the city.'
A partner has no power by virtue of his relation as a partner to bind his
co-partner by a submission to arbitration of a co-partnership matter so as to
make the award in pursuance of such agreement binding on the firm. So
"when a firm of mason contractors had a dispute as to the meaning of the
expression "face of the work that shows to be measured, and none else," it
was held that one partner could not bind the firm by agreeing that a certain
person should decide it.' The award would have been binding on the
partner signing the submission,* and he would have been individually liable
for the whole of the award. "^ Persons who are joint heirs and joint tenants
Jbind themselves only when they submit matters of joint interest and joint
liability to arbitration.*
The powers and duties of executors, administrators, and guardians
legally appointed are such as to authorize them to submit to arbitration
matters over which they have control." Parties having capacity to submit
to arbitration cannot object to an award because some of the parties to it
were married women and minors.'
523. What Parties may Act as Arbitrators. — Before naming certain
parties as arbitrators in a submission it should be ascertained that they are
■competent to act as such, which raises .the question as to who may be arbi-
trators. Any person may be an arbitrator if he be mutually selected by the
parties to the dispute. He can have no secret interest in the matter to be
<ietermined, and should be guilty of no misconduct.*
A remote or trifling interest in the controversy will Rot disqualify the
arbitrator, and misconduct may be any acts or relations cultivated that may
tend to bias the arbitrator or to influence him in his judgment. Such acts are
manifest partisanship, cultivation of intimate relationships, nccepting hospi-
tality of one party, or expressing an opinion before the hearing, etc.
Competency to act as treated above has reference oi?iy to the legal
capacity; that parties should select arbitrators of ability and integrity, com-
petent to skillfully and intelligently investigate, consider, and decide tha
J Coiuiett X. Chicago, 114 III. 233. * * 1 Amer. & En^. Ency. La\^, 053.
■^ Smith V. Philadelphia, 13 Phila. (Pa.) « Russel on Arbitration, p. 20.
177. « 1 Amer. & Eng. Ency. U\Vf 654
3 St. Martin v. Thrasher, 40 Vt. 461 ' Fortune v. Killebrew ^Tex.), 21 B. W.
[1868]. Rep. 986.
* See Sees. 365, supra, and 508-518, infra.
§ 524.] CONTUACT STIPULATIONS. 463
questions before them, and able to make ^nd properly execute a complete
award, need hardly be suggested.
624. What Constitutes a Submission to Arbitration. — At common law a
submission to arbitration could be oral, in writing, or under seal. The laws
of some states require that it be in writing, and if the validity of a sealed
instrument is to be determined, or if the title to real estate ' is to be affected
by the award, the submission must be under seal. A submission to determine
or settle the boundary line between two estates where no land is conveyed
need not be in writing.'
If the submission be a part of a construction contract it will be in writ-
ing, and usually under seal, so that the question will not often arise as
regards the contract stipulation, but parties to construction contracts fre-
quently get into disputes over questions arising about the works, and then
and there verbally agree to submit it to other parties, and almost before
they realize it have committed themselves to an arbitration. In general
such an agreement wall hold, although revocable at any time before the
award is made, and the award has frequently been upheld although the sub-
mission did not comply with the requirements of the statute as to the
number of arbitrators or by being in writing." A simultaneous or a sub-
sequent written submission will supersede any former verbal agreement to
refer.*
A parol submission must be clearly established. A common law sub-
mission may be in any form of words; it need only express an intention to
submit certain questions to the determination of certain arbitrators and to
abide by their award. It must be clear that the submission is for the pur-
pose of settling the question in dispute, or it is not a submission to arbitration.
The submission must contain the essential elements of a contract: it must
I)e definite in its terms as to the parties, the matters submitted, the number
and names of the arbitrators,* or their mode of selection, and an under-
taking clearly expressed or implied to abide by the result of the arbitra-
tion." The submission must be mutual, and be made by all the parties
to the controversy.' It must be certain as to the subject-matter and def-
inite as to what it includes, though the courts will try to supply deficien-
cies so far as the circumstances will permit.' The documents and papers
submitted to arbitration may be considered in determining the extent of
the submission.*
If there are statutory regulations governing submissions to arbitration,
such agreement should conform strictly with the requirements of the
» Fort V. Allen (N. C), 14 S. E. Rep. 685 « Greiss v. State Invest. & Ins. Co. (Cal.),
[1892]. 33 Pac. Rep. 195; Des Moines v Des
2 Stewart v. Cass, 16 Vt. 663; Bowen v. Moines W. W. Co. (la,), 64 N. W. Rep.
Cooper, 7 Watts (Pa.) 311. 269; Reeves v. McGlochlin, 2 Mo. App.
' 1 Anier & Eng. Ency. Law 655. Rep. 1154.
* Symonds v. Mayo, 10 Cush. 39 [1852]. ' 1 Amer. & Eng. Ency. Law 657.
** Northwestern G. L. Co. v. Channel * Com. «. Peiepscut Props., 7 Mass. 399L
<Minn.), 55 N. W. Rep. 121.
454 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 525*
statute, notwithstanding the fact that the courts have frequently shown a
disposition to give a liberal and comprehensive construction to submissions,*
and though awards insufficient to authorize the entry of a final award under
the statute have been upheld as a common -law award.''
525. A Submission to Arbitration should be Distinguished from an
Appraisal. — In drafting the agreement to arbitrate, care should be taken to-
make it a submission to arbitration and not a mere appraisal. " To constitute
a submission to arbitration there should be at least a matter of doubt or a
controversy which requires more than a mere operation of measurement^
calculation, or investigation to determine. A matter of uncertainty which
merely requires the services of an engineer or accountant or of an expert to-
determine is not usually regarded as a subject of an arbitration, and the-
results obtained are frequently held not to have the conclusiveness of an
award." ' Mr. Fry, in his book on '* Specific Performance of Contracts,'*
says that "the persons nominated to value are sometimes, though inaccu-
rately, spoken of as arbitrators. Arbitrators are appointed to settle a pre-
existing dispute — valuers to ascertain the value of the subject-matter of a
sale.* *
In regard to matters left to engineers on construction work the decisions
cannot be reconciled, they are so much at variance. Some hold the deter-
mination of the engineer final to the extent of his employment, even when
his decision is not made a condition precedent to recovery by the contractor.'^
A like difference of opinion exists in regard to appraisals.'
The binding effect of a contract stipulation to refer all questions and dis-
putes that may arise in the course of the construction of works to the engineer
in charge or to a board of arbitration is not recognized as a submission to
arbitration by some courts on the ground that no dispute has arisen, and
therefore there could never have been any submission of a dispute or diffi-
culty that has never arisen. Many cases hold that the stipulation of a
construction contract for the determination of disputes not yet arisen, but
which may come up in the course of the work, is not a submission to arbitra-
tion, because there can be no submission of a controversy that has not arisen, or
that has no existence. J If, however, the parties have attended such a hear-
ing under such a stipulation or have allowed the engineer to render his decision
or award under it without protest or revoking the 5'^^«5^-submission, the award
made will be valid and binding, for they will be held to have adopted the sub-
mission previously drawn up and executed. After the award has been made
^ 1 Amer. & Eng. Ency. Lfiw 654-57 ; eases cited.
Kendiick v. Tarel, 26 Vt. 416 [1854]. * Fry's Spec. Performance, § 341, p. 152.
2 Dockerv v. Randolph (Tex.), 30 S. W. ^ Amer. & Eng. Ency. Law 659.
Rep. 270 ; Greer v. Canfield (Neb.), 56 N. « 1 Amer. & Eng. Ency. Law 659, M.. K.
W. Rep. 883. & T. Ry. Co. v. Elliot, 56 Fed. Rep. 772.
2 1 Amer. & Eng. Ency. Law 659, and
*8ee Sec. 348, supra. f See CliRp XII, nnd Chap. XIII, Sees. 335-417, snpra.
X See Chap. XII, Sees. 335-366, supra.
§ 527.] CONTRACT STIPULATIONS. 466
neither party can retain the benefits of the arbitrators' decision and avoid
its effect as a bar to the original cause of action based on the controversy,
by showing the arbitrator's misconduct/ If either party has notice of mis-
conduct of an arbitrator, and instead of revoking the submission he goes on
to a final hearing and finding by the arbitrators, he must be regarded as
waiving his right to object.' In a contract for the purchase of machinery
by a railroad it was recited that "if a satisfactory price cannot be agreed on
between the parties, each shall select an arbitrator, and these shall select a
third, who shall fix the price of the machines, and whose decision shall be
final," it was held that this was a submission to arbitration and not a stipu-
lation for a mere appraisal.''
The way to avoid the question as to arbitration is to make the appoint-
ment and certificate or award a condition precedent to any right to pay-
ment to the contractor and to any liability on the part of the company or
to any action by the contractor for the price or value of his work done or
materials furnished by him. Such a condition precedent must be per-
formed before any action can be brought, for the debt in that case does not
arise upon the completion of the job, but upon the performance of the con-
tract and the condition precedent which it contains.* *
The conclusiveness and binding effect of an engineer's decision often
fails when disputes have been left to his decision on the ground that no
dispute has arisen as described in the contract, and therefore no award could
properly be made, f
526. What Rules Govern the Arbitration. — In the absence of statutory
requirements the parties may by the terms of their submission agree that
the hearing shall be conducted and that the award be made in accordance
with the rules and regulations and by-laws of any association or society or
by any professional code of ethics, as those of a church or engineering
society to which the parties belong,^ and the award is none the less binding
when made pursuant to such rules and regulations.' They may agree that
no oaths shall be administered to arbitrators and that, the testimony of
unsworn witnesses shall be received.'' Likewise the oaths of the arbitrators
may be waived by the parties, but if the 'statute require that the oath be
administered, the consent to waive it must be in writing.^
627. Parties are Entitled to a Hearing and to Notice of the Same.— In
the absence of a stipulation to the contrary the arbitrators must grant the
parties a hearing, and in each other's presence, and they should have ample
' Orvis V. Wells F. & Co. (C. C. A.), 73 « Payne v. Crawford, supra.
Fed Rep 110. ' ' Russell v. Seery (Kau.), 35 Pac. Rep.
2 Seaton v. Kendall, 61 111. App. 289. 812. .
3 M., K & T. R. Co. V. Elliott, 50 Fed. » Flannery v. Sabagian (N. Y. App.), 31
Rep. 772. N. E Rep. 319 ; In re Grening, 26 N. Y.
4 1 Ainer. & Eng. Ency. Law 669-70. Snpp. 117 ; Erie Tel. & Teleph. Co. ?>.
6 Payne v. Crawford (Ala.), 10 So. Rep. Bent, 39 Fed. Rep. 409 [1889].
911.
* See Sees. 342-343, 345 and 407-417, »npra. f See Sec. 369, 414, supra.
456 ENQINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 528.
notice of the time and place, and no hearing should be granted to one party
without notice to the other party. Affidavits, statements of account, esti-
mates, and other documents should not be received by one party without
the knowledge of the other party/ . ' ' -
Notice need be given and the attendance of the parties requested only
at meetings at which evidence oral or written is received. At the consul-
tation or when the award is drawn up and signed, or at a meeting for the
sole purpose of viewing the works or premises, the parties need not be in-
vited.^
It has been held that notice should have been given of a meeting called
solely to inspect the works, but which was attended by one of the parties,
and at which various inquiries were made of persons present." The sure-
ties under a contract it seems are not entitled to notice, if the parties them-
selves or their attorneys are notified.*
If a party attends a hearing and presents his case he cannot afterwards
object to the award, for the reason that he had no formal notice of the
meeting." Either party may waive his right to a notice of a hearing. An
agreement in the submission that the arbitrators may proceed ex parte,, if
either party fails to appear, does not render the submission irrevocable.^*
528. Conduct of the Hearing. — So long as an arbitrator or umpire con-
forms to the submission and to the statute law governing arbitrations, he
may conduct the hearing at such time and place, and in such manner as
seems to him most fair and reasonable, and the courts will not review his
discretion if he has acted according to the principles of justice and with
fairness to both parties. He may change the time and place of hearing or
adjourn it at the request of either party as he sees fit, or he may refuse to
postpone it if he has good reason.
If he has good reason to believe that either party is absenting himself
from the hearings to defeat the arbitration, he may give peremptory notice
of his intention to proceed with the hearing without him. If the party does
not then appear or give a very satisfactory excuse, and if the party continue
to absent himself, lie may for good cause proceed without him.' The fact that
one party has caused some needless delay is not sufficient cause for the arbi-
trator to close the case without giving him due notice. He should not at
any time unexpectedly make an award without some notice to the parties
that the hearing is at an end.' He should hear all the evidence offered by
both parties that is material to the question at issue.*
^ 1 Amer. & Eng. Ency. Law 685. * 1 Amer. & Eng. Ency. Law 686.
2 Adams v. Busliey, 60 N. H. 290; Straw » Boston & L. R. Corp. i). Nashua & L.
^. Truesdale. 59 N. H. 109 , Roloson v. R. Corp., 139 Mass. 463.
Carson , 8 Md. 208 [ 1 855] . « Ca&es cited in 1 Amer. & Eng. Ency. Law
3 Wood v. Helrae, 14 R. T. 325; Knowl- 682.
ton '0. Mickles, 29 Barb. (N. Y.), 465; hut "^ 1 Amer. & Eng. Ency. Law 681.
see Hall v. Norwalk F. I. Co. (Ct.), 17 All. « 1 Amer. & Eug. Ency Law 680.
Rep. 356.
* See iSees. 492-498, supra, Clauses waiving the right to a notice.
§ 529.] CONTRACT STIPULATIONS. 457
Sometimes the stipulation recites that the engineer is appointed on
account of his skill and knowledge of the subject in dispute, and although
not generally expressly so stipulated, yet in fact it is almost universally the
oase in engineering and architectural contracts that the arbitrators are
selected because of their special knowledge and understanding of the sub-
ject independent of any evidence presented by the parties. When it has
been so declared expressly, it has been held that the arbitrator might
properly refuse to hear evidence and decide the questions presented
upon his own knowledge and skill/ So it has been held that an engi-
neer or arbitrator might in his discretion comply with a request of either
party to go and view the premises." His refusal to hear testimony that
estimates furnished by his assistants were wrong, has been upheld by the
courts.'
529. Arbitrators must Determine Questions Themselves, Cannot Leave
Them to Others. — Arbitrators cannot delegate their powers and duties to
others, nor can they elect or appoint a substitute to act for one of their
number who fails or refuses to serve. They may not delegate their power
to decide matters embraced in the decision to others, not even to the court
which appointed them. They cannot provide for the settlement of future
disputes by another tribunal, or agree to abide the decision of a third party
or to be bound by the decision of some other engineer as to a question of
construction, or that of some lawyer on a point of law.*
It is no objection to an award that the arbitrators took advice relative to
the questions before them if they decided on their own judgment. They
may secure the assistance and council of engineers, surveyors, lawyers, ac-
countants, and experts, and may employ their opinions and results as evi-
dence, and adopt them as their own conclusions if assured that they are
correct. They must not leave matters to the final determination of others,
bat the decision rendered must be the result of the arbitrator's own delib-
erations and judgments.'
The valuation of a mine may be founded upon the report of an expert
sent by the arbitrator to visit it, and certificates of work may be based upon
estimates made by assistant engineers, surveyors, and accountants, these
duties being held purely ministerial, and therefore capable of being
delegated.^ *
Under a reference to two disinterested persons together with W., as sur-
veyor, with the privilege to call in a third party, it was held not to make the
surveyor an arbitrator, but to designate him merely as a surveyor to assist
them in their estimates and measurements."
' Cases collrcted in 1 Amer, & Eng. * 1 Amer. & Eng. Ency. Law 678-686.
Encv. Law 681. M Amer. & Eng. Encv. Law 678.
» Mundy v. Black, 9 C. B. N. S. 557. « Crawford v. Orr, 84 IST. C. 246; hut ses
» Sweet V. Morrison, 116 N. Y. 19 [1889]. State v. Bayonne (N. J.), 8 Atl. Rep. 295.
* See Sees. 500-505, supra.
458 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 530,
530. The Arbitrators must Act Together. — When a dispute is left to the
judgment and determination of three arbitrators, or to two arbitrators and
an umpire to be selected by the arbitrators, the three must act together as a
body in determining any and all questions. A finding by two only will not
be binding on the parties/ If the submission provide for the concurrence
of the three arbitrators an award signed by two will not be final, even
though the third, while refusing to sign, state that "it is all right.''* If
private matters be submitted to three persons, and there is no express nor
implied authority that a less number may decide questions submitted, an
award by two of them will be void." In public matters a majority may make
the award, but they must act together and all take part in the proceeding.*
Therefore, if the arbitrators are appointed in pursuance of a company's char-
ter and a majority sign the award, which purports to be the act of all, it is
valid. ^ An award made under a submission to two arbitrators and an umpire
to be selected by them, is valid, although it is signed by only one arbitrator
and the umpire." It should be clear that the reference is to the three as arbi-
trators, and that the umpire is regarded as an arbitrator merely, and not as
a judge between the two arbitrators selected.^
Under a submission to three arbitrators, with power to any two to make
the award, and notice of a meeting is sent to one who refuses to attend and,
take part, it was held that the other two may proceed, and their award will
be valid ; ® but if the submission provides that an award of the majority
shall be final, all three must be present at every stage of the hearings.* If
one refuse or fail to act, the others can make no valid award. It is well
established that all must be present throughout each and every meeting,
not only for the purpose of hearing the evidence and arguments, but for
consultation and the determination of the award. Both parties are entitled
to the exercise of the judgment and discretion and to the benefit of the
views, arguments, and influence of each one of the arbitrators they have
selected at every stage of the arbitration.^"
When questions are left to the judgment of two architects, the judg-
ment cannot be rendered solely upon the knowledge and inspection of one
of the architects, though the other architect had been fully informed
thereof. Each must be informed independently and from his .own exami-
nations and inspections."
' Stose V. Heisier (111.), 11 K E. Rep. 161 26 [1889].
[1887]. i Savannah, etc., R. Co. -». Decker (Ga.),
2 Weaver v. Powel (Pa.), 23 Atl. Rep. 21 S. E. Rep. 372.
1070. « 1 Amer. & Eng. Ency. Law 684.
3 Hubbard i?. Great Falls M. Co. (Me.), » Doherty v. Do lerty (Mass.), l'.> N E.
12 Atl. Rep. 878 [1888] Rep. 352 [1889] ; Kent v French (In ). 40
^ 1 Aimr. & Eng. Ency. Law 684: hut see K W. Rep. 713 [1889] ; ai,d see Balles v.
Moore v. Mattoou (111. Sup.), 45 N". E. Rep. Bass F. & M. W'ks (Iiid.), l8 N. E. Rep.
567. a report by three commissioners. 319 [1891].
^Darma v. Horicin I. M. Co., 22 Wis. '« 1 Amer.&En<r. Ency. Law 688; Bvxv.
691; see also Newcomb v. Wood, 97 U. S. Chandler (N. J ).' 20 Atl. Rep. 783 [1890].
581 [1878]. "Benson v. Miller (Miun.), 57 N. W.
6 Sllringer v. Toy (W. Va.). 10 S. E. Rep. p. 943.
§ 531.] CONTRACT STIPULATIONS. 459
531. Matters Left to Two Arbitrators, with Power to Call in an Umpire.
— When matters are left to two arbitrators, and in case of dispute or disagree-
ment it is provided that a third arbitrator or umpire shall be called in, the
umpire must sit with the arbitrators and hear testimony oifered. An award
by the umpire without hearing the case anew is invalid.' The parties are
entitled to notice of the time and place of such hearing,' but they may
expressly waive their right to a rehearing when the umpire may use the evi^
deuce offered the arbitrators.' The award may be signed by the umpire
alone, or by the umpire and one of the arbitrators.'
When the contract requires that in case the arbitrators cannot agree
they shall appoint an umpire or referee, it is the duty of the umpire to
decide those matters only which the arbitrators failed to determine or
agree upon.* The umpire and one arbitrator cannot return an award con-
clusive upon the parties about matters with respect to which no differences
have arisen.^ Without express authority in the submission, the arbitra-
tors have no implied power to call in an umpire to make a decision as to
their differences."
The award must be the result of the arbitrator's or umpire's judgment; '
it must not be determined by lot or by chance, or by striking an average.
In the selection of an umpire the appointment must be the joint act of all
the arbitrators, and be based upon the concurrent judgment of them all, and
should be in writing.' The appointment may be embodied in the award.*
Therefore when questions are submitted to three arbitrators, of whom two
were to be selected by the parties, and those two were to choose the third,
all three to be competent civil engineers, and the two could not agree upon
a third, it was held that a choice by lot was not made in the exercise of the
judgments of both arbitrators, but was a result of chance, and therefore
was invalid.' A somewhat different rule seems to have been held in
the English courts, which have held that when two persons have been
proposed to which neither arbitrator made objection, a choice by lot was
valid.'"
So when two arbitrators were unable to agree as to the amount of the
award, and they arrived at a decision by dividing by two the aggregate sum
"which each thought the contractor was entitled to, the award was held void,
both from the method adopted and bepause the submission provided for the
choice of a third arbitrator in case of a disagreement." However, there are
numerous cases in which arbitrators have awarded the average or exact
1 In re Grenlng, 26 N. Y. Supp. 117. lus. Co. (Cal.), 33 Pac. Rep. 633.
2 1 Amer. & Eng. Ency. Law 691. ^ 1 Amer. & Eng. Ency. Law 681, et seq.
2 Sheffield v Clark, 73 Ga. 93.- « Hart v. Kennedy (N. J.), 20 All. Rep.
* 1 Amer. & Eng. Ency. Law 689. 29 [1890].
5 Manufacturers' & B F. Ins. Qo.v. Mul- ^^ Cases collected, 1 Amer. & Eng. Ency.
len (Neb ). 67 N. W. Rep. 445. Law 690.
6Allen-Bnulley Co v. Aderson & N. "Luther «. Medbury (R. L),26Atl. Rep.
Dist. Co. (Ky.), 35 S W. Rep. 1123. 37.
■" Harvester, etc., Works v. Glens Fulls
460 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 532.
mean of several suras named by witnesses, and they have been held valid,
the presumption being that the arbitrators exercised their own judgment
and were convinced that their decision was right.' Likewise, the decision
of an umpire must be the result of his judgment. He may not adopt th&
opinion of one of the arbitrators, but must hear the case and come to his
own conclusions.' The award of the umpire should be in writing and
signed; if one or both arbitrators sign it, it will amount to their approval of
his decision."
The mode or method adopted by the umpire and by which he arrives at his
conclusions cannot be questioned in the absence of collusion, corruption, or
partiality.''
532. The Award. — The award or certificate must be possible, and must
not require the parties to do an illegal act, as to change the course of a river
or to obstruct navigation; but an award which orders one party to pay a sum
of money which he does not possess is not an impossibility in the eyes of the
law.*
The award should be so certain and explicit as to the amount of money
to be paid or the acts to be performed that a specific performance can be
ordered and enforced. If the award is in regard to the title to real estate
or boundary lines, it should be so definite that an officer can give possession
and designate the limits by metes and bounds. It must be certain as to per-
sons required to perform the award, and as to those who are to receive its
benefits, and as to the time of performance.*
All the questions in dispute and submitted must have been considered
and decided, or the award will be void." It will be presumed that the award
disposes of all matters submitted, and includes nothing else.' An award
is set aside by an agreement in writing between the parties to submit the
matter in controversy to different arbitrators made subsequent to its
rendition.'
533. Compensation of Arbitrators and Costs of Arbitration. — An arbi-
trator, or engineer acting as such, may make a reasonable charge for his ser-
vices, and is entitled to pay for every day he is necessarily employed on the
case, including the time of deliberation.' He may collect the full amount
from either party to the submission, and each arbitrator should sue for his
, own fees and charges.' He may award fees to himself and he may have a
lien on the award for the amount of his fees. He may even retain the
award in his hands until his fees are paid." If two cases are identical as to
» 1 Amer. & En<r. Ency. Law 685; Hart- [1817].
ford F. I. Co, ®. Bonuer M. Co. (C. C. A.), ' Seaton v. Kendall. 61 111. App. 289; and
56 Fed. Rep. 378. see People v. Beuton, 7 Barb. 209.
2 1 Amer. & Eng. Ency. Law 691. « Payne v. Crawford (Ala.), 14 So. Rep.
=» Hartford F. I. Co. v. Bonner M. Co., 854.
9uvra. ® 1 Amer. & Eng. Ency. Law 686-88; 8e»
* 1 Amer. & Eng. Ency. Law 704. «;s<? Alexander v. Collins (Ind. App.), 28 N.
6 1 Amer. & Eng. Eucv. Law 699. E. Rep. 190 [1891].
« Jackson v. Ambler, 14 Johns. Rep. 96
§ 533.] CONTRACT STIPULATIONS. 461
the subject-matter, and they are tried in the same time that one would re-
quire, the arbitrators are, it seems, entitled to fees as for but one case.'
The court may on motion or exception inquire into the fairness of the
charges made even when the arbitrators were authorized to fix their own
compensation.'
Generally, but not universally, it is the law that the arbitrator may award
the costs of the arbitration.^ If the award makes no mention of the costs,
it seems they may be recovered from the defeated party.* The compensa-
tion of an arbitrator should not depend upon the amount of the award.'
' Butcher v. Scott, 1 Pa. L. J. Rep. 311. ' Stewart v. Greer (Del.), 32 Atl. Rep. 328.
2 Kelly V. Lynchburg & D. R. Co. * 1 Amer. & Eng. Ency. Law 687.
(N. C), 15 S. E. Rep. 200. » Thomas v. Caulkett, 57 Mich. 393.
CHAPTER XX,
EXTRA WORK OR EXTRAS. ALTERATIONS, ADDITIONS, OMISSIONS^
AND SUBSTITUTIONS.
EXTKA TVOEK OR EXTRAS. STIPULATIONS TO AVOID EXTRA WORK.
534. Provision that Extra Work shall Be Ordered in Writing, and that
Owner or Engineer may Make Alterations, Additions, and Omissions to the
Work.
General clause : " No part of the works shall be altered from that
shown on the drawings, or described in the specifications, nor shall any-
work in the nature of extra or additional work, or any work not con-
templated by the specifications, drawings, or plans be performed with-
out the express written order of the owner or engineer; but should it
be deemed expedient by the engineer, at any time while the works are
in progress, to increase or decrease the dimensions, quantity of material,
or work, or alter the situation or levels, or vary the form or dimensions
of any part of the said work, or vary in any other way the work herein
contracted for, the owner or engineer shall have full power so to do, if
done in accordance with the said contract, and to order and direct any
such increase, diminution, alteration, or extra work to be made or per-
formed, and without in any way vitiating or affecting the said contract;
and the contractor shall, in pursuance of such order and directions
as he may receive in writing from the said owner or engineer, execute
the works thereby ordered and directed, and the difference in expense
occasioned by any such increase, diminution, or alteration so ordered
and directed shall be added to or deducted from the amount payable
under this contract, and the said engineer shall ascertain the amount of
such additions or deductions; but if any extra, additional, or different
works be proceeded with or executed by the contractor, without previous
orders given in writing under the hand of the said engineer, as herein-
before referred to, no charge for the same will be allowed.^'
535. Extra Work or Extras should be Avoided or Controlled. — When a
tricky contractor discovers that he has a determined engineer or architect to
deal with, one who is a competent judge of good materials and of good work,
and who requires him to live up to the terms of his contract and specifica-
tions strictly, his scheme is usually to work the job for all the " extras "
there are in it.^ So successful and profitable has the practice been to a cer-
tain class of contractors, that works are frequently taken at the bare cost of
* An interesting little book on the subject is "Scamping Tricks." By John New-
man, 1891.
462
§ 535.]
CONTRACT STIPULATIONS.
463
construction, the contractors depending for their profits upon the extras
that the job will afford. In view of these facts it is a study in drafting con-
struction contracts to make stipulations like the foregoing clause that shall
keep extra work within reasonable limits and prevent unreasonable charges
for work rendered necessary by changes due to unforeseen difficulties and
dangers or, if possible, to avoid all extras of whatever description.
A variety of provisions, stipulations, and conditions have been employed
to effect this purpose, but only a few will be given as being in general use
and deserving special notice. Some have limited the compensation which
the contractor should receive strictly and absolutely to the price named in
the contract; while others have provided that no extra pay whatever should
be demanded or allowed unless the work was ordered in writing and weekly
or monthly estimates [statements] rendered therefor, or except for work
ordered by the owner [or by his engineer or architect duly authorized], and
the price or value thereof agreed to by the parties, and the agreement
endorsed upon and made a part of the original contract. Yet another form
has left the question of what were extras, and the compensation the con-
tractor should receive, to the determination of the engineer or to arbitration.
Any one of these conditions, clearly expressed, would answer its pur-
pose if literally enforced, i.e., if not modified or changed by subsequent
agreements, and if both parties insisted upon its performance and execution.
Pretty much all the trouble over extra work, under a contract containing
such clauses, comes from parol agreements substituted and which change
the terms of the provision, or from a lax enforcement of its terms, amount-
ing to a waiver.
It is very dangerous to the binding effect of a construction contract to
be content with a lax enforcement of its terms and: stipulations. One
instance of indulgence leads to another, and several instances may consti-
tute a waiver of the whole effect of a provision. Assenting once unquali-
fiedly to dispense with the performance of a provision requiring written
orders for extras may open the door to a suit for a whole bill of extras. An
owner or an officer of a company cannot be too careful in the exercise of
his powers as dictator on works in the process of construction which have
been placed in charge of and under the immediate superintendence of an
engineer or architect. Any interference or change either in the contract or
the works without notifying and consulting the person in charge and con-
sidering the express terms and provisions of the contract are certain to
cause trouble and unlooked-for complications.
The question as to what are extras must, of course, depend upon the
particular circumstances of each case, examples of which will be given in a
section following, but it is proposed now to consider the effect of the
ordinary provisions of a construction contract whose object is to determine,
limit, or avoid extra work. If the question of extras cannot be deter-
mined, and it is impossible to ascertain whether the work was within the
46^ ENGINEERING AND ABCHITECTUIiAL JURISPBUBENGE. [§ 636.
tjontract or in excess of it, the presumption of law is that it was required
by the contract/
536. Provision Limiting the Recovery of the Contractor to the Contract
Price.
Clause: "It is distinctly understood, intended, and agreed that the
said sum of dollars ($ ) shall be the price of, and be
held to be the full compensation for, all works embraced in or con-
templated by the said contract, or which may be required by virtue of
any of its provisions or conditions, and the contractors shall not,
upon any pretext whatever, be entitled, by reason of any change,
alteration, or addition made in or to such works, or in the said plans
or specifications, or by reason of any, or the exercise of any, of th&
powers vested in the governor by the act entitled ,
or in the commissioners or engineers by this contract or by law, to
claim or demand any further sum for extra works or as damages or other-
wise, the contractors hereby expressly waiving and abandoning all and
every such claim or pretension to all intents and purposes whatever,
except as provided in the section of the contract relating to alteration
in grade or line of the location/^
537. Express Waiver of All Claims for Extra Work. — Such a clause is a
waiver of all claim for payment of extra work,^ but the adoption of it is an
expensive one to the owner and onerous to the contractor. The owner
may depend that the contractor will allow a very liberal estimate for every-
thing in a contract by which he undertakes to overcome all the obstacles
and unforeseen difficulties that may be met, and in which he may be called
upon for alterations and additions for which he will receive no extra com-
pensation. The proprietor loses the advantage of a close estimate of the
cost of the work, and it is therefore not a favorite stipulation.
538. No Claims for Extra Work unless Ordered in Writing and Notice
Given Thereof. — The provision that has found the greatest favor is that
which provides for extra work, and which, requires the price thereof to be
agreed upon and indorsed in writing upon the contract. Some good
examples of such clauses are given in the sections following.
539. Provision that Extra Work must be Ordered in Writing, Signed,
Prices Agreed upon and Indorsed, and Periodical Statements Rendered.
Clause: "It is mutually agreed and understood that no claim what-
ever will be made by the said party of the second part (said contractor)
for any extra work or extra materials, or for a greater amount of
money than is herein stipulated to be paid, unless in each and every
case such extra work and materials shall have been previously ordered
in writing and the price agreed upon and entered therein, and the
agreement duly executed and signed, by the owner, commissioner,
board, or company, or by his [its] engineer or architect, duly authorized
in writing, and notice of such claims shall have been given to the said
owner or company within ten days after the beginning of such
' Crocker u. United States, 21 Ct. of CI. ^^erlinquet v. The Queen, 13 Canada
255. . . Sup. Ct. 26ri8771. ^ -
§ 543.] CONTRACT STIPULATIONS. 465
extra work or the furnishing of such extra materials. The cost of
such extra work or materials shall be included in the progress cer-
tificate next succeeding the completion of such extra work or the
delivery of such extra material.
"And the said contractor(s) hereby expressly waive(s) all claims or
demands to any pay or allowances for any alterations, additions, or
extra work or extra materials, unless in each case such extra work or
materials shall have been furnished upon said written order, the price
therefor, and the time of completion thereof agreed upon and entered
therein, the same order signed or duly authorized in writing, and due
notice of said work given. ^*
540. Provision that Extra Work shall be Ordered in Writing and the
Price Determined.
Clause (short form) : " No claims for extra work will be allowed
unless ordered in writing and signed by the owner or commissioner or
board of public works, and the price for such agreed upon in advance;
and all claims for extra labor or materials, or for damages, or for any
other matter or thing for which the contractor may consider himself
entitled to extra remuneration, must be made in writing before the
extra labor or materials are furnished, or at the time the damages
occur or the cause for the claim arises, and no claim will be considered
which has not been so presented to the engineer or owner, or
board."
641. Provision that Extra Work shall be Ordered and Claim Presented.
Clause (short form) : " The contractor further agrees that he shall
have no claim for compensation for extra work, unless the same is
previously ordered in writing and endorsed in writing upon the con-
tract by said engineer, and unless the claim for the same, when so
ordered, is presented to the said owner, commissioner, or board before
the day of the month following that during which each specific
order is complied with (or as soon as practicable after work is done and
before the final estimate)."
542. Provision that Extra Work shall be Certified to Be for Public Good
and the Price Thereof Limited.
Clause: "No claim for extra work shall be considered or allowed
unless the same is approved and ordered by the engineer, and the said
commissioner or board shall authorize in writing such extra work,
and shall certify that it is, in their opinion, for the public interest that
such extra work be done, stating in a certificate their reasons there-
for. The aggregate price to be paid for extra work authorized or
ordered under and by virtue of the foregoing provision of this con-
tract shall not exceed the sum of one thousand dollars on any one
order. All claims for extra work done in any month shall be made to
the engineer, in writing, before the 15th day of the following month."
543. Provision that if Parties are Unable to Agree upon Price, Contractor
shall Not Interfere with Third Party Doing Work.
Clause: "And the said part... of the second part further agrees
that if he [they, or it] and the said commissioner are or shall be
unable to agree, as aforesaid, upon the price or prices to be paid for
46(5 ENOINEERINO AND ARGHITEGTURAL JURISPRUDENCE. [§ 544.
any extra work which may be authorized as aforesaid, the said part . . .
of the second part will not in any way interfere with or molest such
other person or persons as the said engineer, commissioner, or board
may employ to do such extra work; and that the said part. . . of the
second part will suspend such part of the work herein specified, or will
' carry on the same in such manner as may be ordered by the said
engineer, so as to afford all reasonable facilities for doing such extra
work; and no other damage or claim by the said part. . . of the second
part shall be allowed therefor, other than an extension of the time
specified in this contract for the performance of said suspended work,
as much as the same may have been, in the opinion of the engineer,
delayed by reason of the performance of such extra work."
544. Provision that Contractor will Not Interfere with Other Con-
tractors.
Clause: "And it is further expressly agreed and understood that if
the contractor[s] is [are] unable or refuse(s) to undertake, perform, and
complete the additional or extra work required by reason of such altera-
tions or otherwise, or the parties cannot agree upon a price for such
extra work, or upon the time to be allowed for its completion, he [tliey]
will not in any way interfere with or molest such other person or per-
sons as the engineer, owner, board, or company may employ to do such
work, and will suspend such part or parts of the work herein specified,
or will carry on the same in such manner as may be ordered by the
engineer, owner, , or company, to afford all reasonable facili-
ties for doing such work; and no other damage or claim by the said
contractor therefor shall be allowed, except such extension of the time
specified in this contract for the performance thereof as shall be agreed
upon, or as the engineer or architect may deem reasonable."
545. No Recovery can be Had for Work Done, and Not Ordered as Re-
quired by the Contract.— These stipulations are in very common use in
engineering and architectural contracts. They are inserted to insure that
a record shall be kept of all extra work and to protect the company or
owner from claims for extra work that have been completed, and perhaps
covered up and concealed, or so incorporated with the other work as to be
no longer distinguished. Without such provisions the proof of the amount,
character, and value of the extra work would' depend upon oral evidence, in
the production of which the contractor would be supported by a courtroomful
of employees and servants, while the company might be limited to the testi-
mony of their engineer, and he perhaps regarded as an interested party.
The provisions are manifestly for the protection of the company, and are
reasonable and equitable to all parties concerned. Their validity cannot be
doubted, and such a provision is a condition precedent to any liability on
the part of the company for work done outside of the contract,* the non-
performance of which will preclude recovery by the contractor.'
1 Hoscoe's Digest of Biding. Cases 32, Woodruff v. R. & P. R. R. Co., 108 N. Y.
and English cases cited; Howard v. Pensa- 39 [1888J ; Shaw v. Wolvertou W. W. Co
cola & A. R. Co., 5 So. Rep. 356 ; White 6 Exch. 137.
V. S. R. & S. Q. R. Co., 50 Cal. 417 [1875] ; ^ yiood v. Morrisey, (N. B.) 4 Pugsley
§ 546.] CONTRACT STIPULATIONS. 467
The stipulations when taken alone, unqualified by subsequent agreement,
have always been held binding and conclusive. When the contract provides
that no claim shall be made or allowed for extra work unless it is performed
under written contracts or under orders signed by the engineer or architect, no
contract can be implied, or presumed, to pay for work done without such
written order, in contradiction to the provision.* Nor can evidence be in-
troduced to prove labor and materials furnished beyond the requirements
of the contract, without procuring the written agreement and the price and
signature of the superintendent, as required by the contract.'
The fact that the company has taken possession of the works, or of the
structure containing them, when completed, and has had the benefit of the
extra work, will not render it responsible for its value.'
If extra work has been done without observing the formalities required
by the contract with regard thereto, and it has been paid for through a mis-
take of the engineer in including it in his estimate of work regularly done
under the contract, the excess so paid for extra work may be recovered back.*
If it is required by a special act of legislature that work shall be ordered and
undertaken in a certain manner, and extra work has been done which was
not ordered in the manner prescribed by the act, no recovery can be had for
it, though done with the approbation of the engineer.^
646. Conditions Precedent to Liability must be Strictly Performed. — The
general rule of contruction, " that when certain requisite forms or conditions
are prescribed that are to be executed or to be performed precedent to lia-
bility or the promise to pay on the part of the company, they must be
strictly complied with and performed,'' applies here as to other provisions
and stipulations." Their terms must be carefully executed or expressly
ifc B. 5 [1880] ; Thames I. Wks. v. Royal ruff v. Rochester & P. R. Co., 108 N. Y.
Mail Co., 13 C. B. (N. S.) 358 ; Baltimore 39 ; Ferrier v. Knox Co (Tex.), 33 8. W.
Cein. Co. V. Coburn, 7 Md. 202. Rep. 896 ; and see Abbott v. Gatch, 13 Md.
» Vanderwerker v. V. C. R. Co., 27 Vt. 314 ; Fianklyn i?. Darke, 3 F. & F. 65 ;
130; Russell V. Bandeira, 13 C. B (N. S.) Miller u. McCaffrey, 9 Pa. St. 245; Hous-
149 ; Baltimore Cem. Co. v. Coburn, 7 Md. ton R. Co v. Trentem. 63 Tex. 442 ; Fitz-
202 ; Gillisou v. Wannamaker, 140 Pa. St. gerald v. Beers, 31 Mo. App. 356.
358 [1891] ; Wortman v. Kleinschmidt. 12 ^ Sutherland v. Morris, 45 Hun 259
Mout. 316; Shaw ®. First B. C, 44 Minn. [1887]; Wortman v. Kleinschmidt, 12
22 ; White v. S. R. & S. Q. R. Co., 50 Cal. Mont. 316.
417 [1875] ; Thames Iron Works v. The R. ^ Woodruff «. R & P. R. Co., 108 K Y.
M. P. Co., 8 Jurist (N. S.) 100 ; Kirk «. 39 [1888] ; Hommersham «. Waterworks, 6
Bromley Union, 2 Phill. 640 ; Richards v. Exch. 137 [1851] : Sharpe v. San Paulo
May, L. R. 10 Q. B D. 400 ; O'Keefe v. Ry. Co., 8 Ch. App. 607 ; Boston Elec. Lt.
St. Francis Church, 59 Conn. 551 [1890] ; Co. v. Cambridge (Mass.), 39 N. E. Rep.
O'Brien v. New York, 139 N. Y. 543, 142 787 ; semhle Wortman v. Kleinschmidt
N. Y. 671 ; Lee v. Brayton (R. I.), 26 Atl. (Mont.), 30 Pac. Rep. 280 ; hut see Tyron
Rep. 256, the contractor can have no lien ; v. White & C. Co., 62 Conn. 161.
Meyers v. Sari, 3 El. & El. 306 ; Howard *Duluth v. McDonnell (Minn.). 63N.W.
V. Pensacola, etc., R. Co., 24 Fla. 560 ; II- Rep. 727.
linois Inst. v. Piatt, 5 111. App. 567 ; Dun- ^ Hommersham v. Water Works Co., 6
can « Miami Co., 19 Ind. 154; Taff Vale Exch. 137 ; O'Brien v. Mayor of N. Y.,
R. Co. v. Nixon, I H. L. Cases 111. 7 Hare 139 N. Y. 543.
136; Bently v. Davidson, 74 Wis. 420; « Vanderwerker v. Vt. Cent. R. Co., 27
Condon «. Jersey City, 43 N. J. Law 452 ; Vt. 130 ; Russell v. Bandeira, 18 C. B. (N.
Ahern v. Boyce, 19 Mo. App. 552 ; Wood- S.) 149.
468 ENOINEERtNG AND ARCHITECTURAL JURISPRUDENCE. [§ 547.
waived to give the contractor any rights to recovery. If the contract pro-
vides that no extra charges shall be made unless a written agreement be
attached to the contract, it has been held to require the order not only to be
written, but to be attached as stipulated, and that the contractor could not
recover (on the contract), even though the work was done at the request of
the ov/ner. ^ *
5i7. An TJnsigned Sketch or Plan is Not a Written Order. — A stipulation
that the cost of changes or extra works should be determined by supple-
mental contract was held to require them to be specified in writing, or an
express waiver of the provision shown, or no claim for extra work could be
maintained.'' So the giving of a plan of extra work which is necessary to
the security of the work is not a compliance with a stipulation requiring
that no alterations should be paid for unless ordered in writing. The owner
,is not bound by such a direction and order.^ When it was stipulated that
for all extra work written directions should be given under the hand of the
architect, a sketch made by the architect, and not signed by him, is not such
a direction as complies with the contract;* but when city building inspectors
ordered changes, a sketch of which was prepared by the architect, and the
contractor was directed to make such changes so that the building should
conform to the city ordinances, it was held that there was no express con-
tract in writing for the extras, yet it was the duty of the owner to see that
the order was obeyed, from which arose an obligation to pay for the work
necessary therefor, done with his consent under the direction of his archi-
tect.'
548. Progress Certificates of Work Done are Not Written Orders for Extra
Work. — Certificates of work performed are not written orders, and will not
satify the clause requiring work to be ordered in writing. They have been
held insufficient, even when the contract has made the certificate pre-emin-
ent." Thus under a clause "that no alterations or additions shall be made
without a written order from the engineer, and that no 'allegations by the
contractor of knowledge of, or acquiescence in, such alterations or additions,
on the part of the company or their engineers, shall be accepted or available
as equivalent to the certificate of the engineer or in any way superseding the
necessity of such certificate as the sole warranty for such alterations and
additions, it was held that the neglect to order extras in writing, as required
by the contract, was not cured by the engineer's having included them in his
certificate.'
1 Abbotts. Gfttch, 13 Md. 314. «Tlmrsus S. & C. Co. v. McEleroy, 3
2Trus ees v. Piatt, 5 Bradw. (111.) 567. App Cas. 1040 [1878], in which the engi-
3 Stuart V. Cambridiie, 125 Mass. 102. neer's decisions were not final and couclu-
4 Myers v Sari, 30 L. J. Q. B. 9 [1860] ; sive
hvt see Wood v. Fort Wayne. 119 U. S. 312 ' Tharsus S. & C. Co. v. MoElroy, 3
[18^6] App. Cas. 1040; Lamprell v. Billcricay
5 Cunningham «. Fourth Bap. Ch. (Pa ), Union, 3 Exch. 283 ; Gillison ??. Wana-
28 Atl. Rep. 490. maker, 140 Pa. St. 358 [1891] ; Brunsdon
* See Sec. 559-568, infra.
§ 549.] CONTRACT STIPULATIONS. 469
549. Want of Written Order may be Cured by Final Certificate, if Certifi-
cate Partakes of the Nature of an Award.— Some of the English cases have
made a distinction between progress certificates and the final certificate.* Pro-
gress certificates have been regarded as simple statements of matters of fact,
such as the weight or measure of the materials delivered, or of the work done,
and their contract prices, and the payments under them as provisional and
subject to adjustment and revision when the contract is completed and the
final estimate rendered/ Interim or progress certificates are not given tlie
weight of adjudications, the final estimate alone being accorded the final and
conclusive effect of an award.' If such extras are included in the progress
certificates the omission to order them in writing is not cured, but if
included in the final certificate, or the award, the necessity of a written
order is done away with.* *
When the engineer had been made sole umpire with respect to the
amount, state, and condition of the works actually executed, and also of any
and every question that may arise concerning the construction of the pres-
ent contract, or the said plans, drawings, elevations, and specifications, or
the execution of the works thereby contracted for, or in anywise relating
thereto, should be final and without appeal ; and where a submission has
been made to the judgment and discretion of the engineer, the English
courts have repeatedly held that the engineer's or architect's certificate was
conclusivejorthe sum certified, even though it did include extra work which
had not been ordered in writing as required by the contract.^
It is equally conclusive upon the company and the contractor, and neither
party can raise the question whether there was suflftcient order in writing."
The ground upon which the decisions were supported was the finality of
the engineer's decisions, he having been made a §'?^«5z-arbitrator of not only
the nature, quality, and quantity of the works, but also of the meaning and
construction of the contract and specifications. In every case known to the
author where this decision has been rendered, the engineer's powers have
been extended to the interpretation of the contract, and his judgment
thereof has been made final and conclusive.^
V. Staines Local Bd., 1 Cab. & El. 272 ; 233, part payment had been made ; but see
Goodyear v. Weymouth, 35 L. J. C. P. 12. Brunsdon v. Staines Local Bd., 1 Cab. &
' Emden's Law of Building and Building El. 272, where the fact that weekly bills
Leases, 215. were to be delivered for extras was re-
2 jliarsus S. & C. Co. v. McElroy, L. R. garded as a saving clause.
3 App. Gas. 1045. 'Lepthorne v. St. Aubyn, 1 C. & E.
^But see Chicago S. F. & C. R. Co. -». 486 [1885] ; Commissioners r. Water Corn-
Price, 138 U. S. 185 [1891] ; and Price v. missioners, 5 Irish Rpts. C. I. 55 [1871];
Chicago, etc., R. Co., 39 Fed. Rep. 307 Goodyear i;. The Mayor, 35 L. J. C. P. 12;
[1889]. see also Kirk & R. v. The E. & W. India
4 Tharsus Sulphur & Copper Works v. Co.. 55 L. T. R. (N. S.), 245 [1886].
McElroy & Sons, L. R. 3 App. Ca«. 1040 ; ^Emden's Law of Building, etc., 217,
Lamprell •». Billericay Union, 3 Ex. 283 ; and English cases cited.
Abells V. Syracuse (Sup.), 40 N. Y. Supp. ' Commissioners ■». Water Commissioners,
* See Sees. 465-490, supra.
470 ENOINEEBINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 549.
If the architect's or engineer's decision as regards the value of the
extras and addition is made final and conclusive, it might be that the courts
would ignore the stipulation for a written order and allow the contractor to
recover for all that the certificate included; but to say the least, it is doubtful.
Justice Willes in one decision said : " It is true that the architect, if he
does his duty, has no power to certify for extras not ordered in writing; but
by the terms of the contract, if he has allowed for extra and additional
work without the production of such an order, though he has decided
■ erroneously, that is a matter for which the company have to blame them-
selves for selecting him." " Suppose," said he, " that in dealing with the
extras the architect had disallowed an item for which the contractor had
r jceived a written order, would that be binding on the parties ? Certainly
it would, for they put him in the position of an arbitrator having power to
disallow it." '
The court seems to have regarded the denial of any liability on the part
of the company as an effort to affect the contractor by the breach of duty
of the engineer for giving certificates for work not ordered in writing as
required ; and to have applied the rule that a contract should be so ex-
pounded as to carry into effect the intention of the parties, and that the
intention was to be collected not from the language of a single clause of
the covenant, but from the entire context. That if the contractor had
safely omitted a thousand dollars' worth of work by direction of the engineer^
and the engineer had so certified, there would be no doubt that the con-
tractor could not recover for the omissions, and that it was a poor rule that
did not work both ways; that, therefore, the obligation should be extended
equally to additions as to omissions.' The justice who delivered the opinion
said : "By their agreement the parties have constituted the architect their
tribunal to decide whether there was a written order for extra work and
what was the nature of it, and his certificate assumes that there was such a
written order," and against it there is no appeal.' The agreement referred
to was the ordinary clause making the engineer the exclusive judge of the
execution of the works and of everything connected with the performance
of the contract, and that his certificate should be binding and conclusive
on both parties.
In another case, where the architect's decisions were to be final only as
to the measures made during the progress of the work and other questions
and disputes, including the allowance of extras and additions and any other
matters arising under or out of the contract, were left to further arbitra-
tion before another person, it was held that a certificate for final balance
supra; Goodyear v. The Mayor, supra; Co. (C. C. A.), 76 Fed. 941.
LepthoTiie ?). St. Aubyn, swp-a. 2 QQjyiQ^igslQjjgi.g ^ Commissioners, 5-
1 Goodyear v.- The Mayor, 35 L. J. C. P. Irish R. (C. L.). 55-66.
12; and see Marks •». Northern Pac. R. ^ Commissioners «. Commissioners, swj?rrtc
§551.] CONTRACT STIPULATIONS, 471
could not include extras that had not been ordered in writing and weekly
bills delivered as required by the contract,'
When a contract, after specifying certain works to be done for a gross
sum, provided that extra work which the company or its engineer should
by any writing under his hand require to be executed, should be deemed to
be included in the contract, and should be paid for at a certain rate, and
that the contractor should not be entitled to make any claim for any altera-
tion or addition which he made without such written and signed instruc-
tions, it was held by the Vice-Chancelor of England and affirmed by the
House of Lords that a suit for an account of the moneys due to the con-
tractor, in respect of the works done under the contract, was a proper sub-
ject of jurisdiction in equity.*
550. English and American Practice Compared. — These English cases
illustrate the difference in the status of American and English engi-
neers. In England the parties are held strictly to their agreement to abide
by the engineer's decision. It is a frequent practice to refer any and every
question as to the work and the contract to the engineer, and the courts
enforce the obligations assumed by the parties as they would any other
contract obligation. The American courts have often given a less rigid
^ construction to this provision of contracts and have been more indulgent ta
contractors, and tlie effect may be seen in our public works and our general
construction. English engineering works are said to be executed strictly in
accordance with the plans and specifications and tlie contract. If the attor-
ney through ignorance or inadvertence has failed to express things clearly,
then the engineer interprets them as they should be. The English courts
seem to have been more alive to the interests involved and to have encour-
aged enterprise and development and to protect capital. While it is pre-
sumed that the American courts have less need to encourage the rapid
progress of our country they have had more sympathy with the weaker
party and on the side of the oppressed, an inherent trait of a democratic
people. The American cases cannot be reconciled; some having followed
the more liberal American decisions and others having adopted the more
stringent and rigorous application of the English law.
551. Provision Relating to Extra Work, Alterations, and Omissions,.
Ordered by the Owner or Engineer.
'^Clause: It is further agreed by and between the parties hereto that
should the said owner, board, committee, council, or company require any
alterations, changes, deviations, omissions, or additions in, to, or from
the said plans and specifications or works, or any extra work to be done,
which may be deemed necessary for the proper construction and com-
pletion of the whole work herein contemplated, they may authorize and
empower the engineer or architect [or the engineer or architect, with
the written consent in every case of the said owner or company, shall
«Bnindsen v. Local Board, 1 C & E. ^ Nixon v. Taff Vale R. R. Co., 7 Hare
■rt'2 [1884]. 136.
472 ENQINEERINQ AND ABCEITECTURAL JURISPRUDENCE. [§ 552.
have the full power and authority], from time to time and at all times
to make and issue such further drawings, and to give such further
instructions and directions in writing and over his hand, as may appear
to him necessary or proper for the guidance of the contractor, and for
the good and sufficieut execution of the works, according to the terms
of the specification; and the contractor shall receive, execute, obey,
and be bound by the same, according to the true intent and meaning
thereof, and as fully and effectually as though they had accompanied
or had been mentioned or referred to in the specification; and the
engineer or architect may [within limits consistent with the nature of
the contract], make such changes in the forms, dimensions, grades, and
alignments or position of any of the works as the interest of the work
shall seem to require; or he may order any of the works to be omitted,
without the substitution of any other works, in lieu thereof, or may
order additional works to be executed; and the contractor [s] shall, in
pursuance of such orders and directions, execute the works in con-
formity therewith, but he [they] shall not otherwise make any altera-
ations, variations, omissions, substitutions, or additions in, from, or to
the works."
662. Engineer's Authority to Direct Alterations, Additions, or Omissions
is Not Authority to Order Extras except in the Manner Required by Con-
tract.— The existence of a clause in the contract to the effect that the work
shall be under the supervision and direction of the engineer,^ or that the
engineer may direct alterations in, additions to, or deductions from the
work, or that he may make other modifications in the amount and character
of the work contracted for, authorizes the engineer to order extra work,
but only in the manner required by the contract terms. If the contractor
execute work outside of the contract without insisting that it be ordered in
the manner required by his contract he cannot recover either at law or in
equity.'
Express stipulations are rigidly construed by the courts, and even though
a contractor has bound himself to perform certain works according to
specifications and drawings, and the architect has power to direct additions
and omissions, he cannot recover for work done under the direction of the
architect unless he can show that the architect had authority to order the
work.' If such autjiority is not shown the contractor has no case, even
though he plead that the deviations were by direction of the company's
architect or engineer.* In the United States court a different rule has been
maintained in at least one case, where it was held that a provision which
required that claims for extra work must be made within ten days after the
^ Mnrpliy «. Albiua(Oreg.), 29Pac. Rep. Gatch, 13 Md 314; Stuart v Cambridge,
353 [1892]. 125 Mass. 102; Sutherland v. Morris, 45,
2 White V. R. R. k S. Q. R. Co., 50 Cal. Hun 259.
417 [1875]; Trustees v. Piatt, 5 Bradw. » Rex «). Peto, 1 Y. & J. 37.
567; and see also 1 Red field on Rys. (4tli ■'Cooper -». Langdon. 9 M. & W. 60 ;
«d.) 411; Kirk v. Guardians, 2 Pliila. 640; Emden's Law of Building, etc , 220 ; and
Thayer «. V. C. Ry. Co., 94 Vt. 440; Her- see Denver & R. G. Rv. Co. v. Nets (Colo.),
rick V. V. C. Ry. Co., 27 Vt. 673; Richards 14 Pac. Rep. 105 [1887].
t>. May, L. R. 10 Q. B. D. 400; Abbott v.
^ DD'd.J CONTRACT STIPULATIONS. 473
completion of the work, or before the next monthly payment, did not pre-
vent the contractor from recovering for extra work caused by alterations of
the plans made by one party m pursuance of a clause empowering it to
make such alterations. That though the work required to make such an
alteration was in one sense extra work, yet, if it was caused by an alter-
ation of the plan by the proper authorities, it was to be paid for at the
contract rate for work of its class, and that orders to make alterations
under such circumstances was equivalent to a written order by the party or
the engineer.^
If the architect has by agreement or orders induced the sub-contractors
to use a different material for plastering from that specified in the con-
tract, without the knowledge of the contractors, the latter have been held
not liable for damages because such substituted material was defective;'
and though the building contract requires a written order for any change
which affects the cost of the building, or time of its completion, yet the
contractor is not responsible for a delay caused by a change in the plans of
the building, made at the owner^s oral request."
553. Without Special Authority, the Engineer or Architect cannot Render
His Employer Liable for Extra Work.* — The fact that the engineer, archi-
tect, or superintendent has orally ordered extra work to be done, when the
contract requires that it shall be ordered in writing, will not render the com-
pany or owner liable therefor, nor enable the contractor to recover for such
extra work performed.* If the contractor has performed extra work upon
the assurance of the engineer or architect that it will be allowed by the
company or owner without the requisite formality, he must look to the en-
gineer or architect for compensation. He cannot recover from the company
cither in a court of law or a court of equity;^ and it seems that the archi-
tect may render himself personally liable for the value of extra work or-
dered by him without authority of the owner, whether he falsely or in
good faith and under a mistaken belief represents to the contractor that he
has the requisite authority.' f
However, verbal assurances by an engineer of a bridge company to a
1 Wood V. Fort Wayne, 119 U. S. 312 Rapids (Mich.), 41 N. W. Rep. 263 [1889];
[1886]. hut see Elgin v. Joslyn, 136 111. 525 ; mid
2 Robinson x. Baird (Pa ), 30 Atl. Rep. see Commissioners v. Motherwell, 123 lud.
1010. 364.
3Focht 'D. Rosenbaum (Pa. Sup.), 34 » Woodruff «. R. «fe P . R. Co., 108 N.
Atl. Rep. 1001. Y. 39 ; Randell v. Trimmen, 18 C. B. 786
4 Vanderwerker «. V. C. Ry. Co., 27 [1856].
Vt. 125 [1854] ; Woodruff v. R. & P. R. « Randell v. Trimmen, 18 C. B. 786 .
Co., 108 N. Y. 39 [1888] ; Pasbby «. The and see Woodruff v. R. & P. R. Co., 108
Miiyor, 18 C. B. 2 [1856] ; Barker v. Troy N. Y. 39 ; also Hall v. Crandall. 29 Cal
& R. R. Co., 27 Vt. 766 ; O'Keefe v. St. 567 [1865] ; Ludbrook v. Barrett, 46 L. J.
Francis Church. 59 Conn. 551 [1890]; Ahern C. P. D. 798.
■0. Boyce, 19 Mo. App. 552 ; Rens v. Grand
* See Sees. 37, 39, 370-380, supra, and Sec. 768, infra.
\ See also Sues. 275, 515, supra, and 842, infra.
474. ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 553.
materialman that if he would supply lumber to the contractor for the
bridge, he would get his money as soon as the contract was completed, does
not render the engineer liable for the bill of the lumber, as it is a verbal
undertaking to answer for the debt of another and is void, being within the
statute of frauds/
An engineer has no power by virtue of his position to bind the city, his
company, or employer by his contracts.' There is nothing in his general
duties that will authorize him to order alterations or additions, or to employ
others to do work which, by express contract, belongs to the contractor to
perform.' He must have special authority to bind his company and to ren-^
der them liable. As Judge Redfield of Vermont, in a very early case, has said :
*'No one could for a moment be led into any misapprehension as to the
extent of an engineer's authority to charge his company by varying its exist-
ing contracts and making new ones. The engineers were there (upon the
works) for no such purpose; they had- no such agency except under specific
limitations and restrictions contained in the contract." * Though the engi-
neer be an agent of the company, if he is not a party to the contract and
takes no part in the negotiations, and is intrusted with no special duty with *
regard to it, he cannot bind his employer by any statement or representa-
tion which he may make with reference to it,* *
Such a special duty is conferred by a power of attorney authorizing an
engineer or agent to act for the owner in all matters relating to a building
contract and the construction of the building. Under such a power of
attorney the engineer is authorized to order the removal of stones which
1 Engleby v. Harvey (Va.), 25 S. E. Rep. 125 [1854] ; accord. Rex v. Peto, 1 Y. & J.
235. 37; Cooper v. Langdon, 9 M. & W. 60;
2 Gardner v. B. & M. Ry. Co., 70 Me. Dist. of Columbia v. Gallagher, 124 U. S.
181 [1879] ; Mclutosh v. Hastings (Mass.), 505.
31 N. E. Rep. 288; Rens v. Grand Rapids ^ Wolf v. The Des Moines & Ft. D. Ry.
(Mich.), 41 N. W. Rep. 263 [1889]; Merid- Co., 64 Iowa 380; Campbell v. Day, 90 111.
ian W. W. Co. v Schulber (Miss.), 17 So. 363; but see Becket's Building, pp. 17-20;
Rep. 167; Sexton v. Cook Co., 114 111. 174; and Adlard v. Muldoon, 45 111. 193; Kim-
Murphy V. Albina (Oreg.). 29 Pac. Rep. berly«. Dick, L. R. 13 Eq. 1; Hall v. Holt,
353 [1892] ; Woodruff v. R. & P. R. Co.. 2 Vern. 322; Wyatt v. Marq. Hertford, S
108 K. Y. 40 [1888] ; Shaw v. Wolverton East 147. The latter cases are English
W. W. Co., 6 Exch. 137; O'Brien©. Mayor cases, which give more extended powers to
of N. Y., 139 N. Y. 542; Baltimore Cem. engineers than do the American contracts.
Co. V. Coburn, 7 Md. 202; Starkweather v. Some English cases have held that the ar-
Goodman, 48 Conn. 101; Sexton v. Cook chitect could employ all proper and rea-
Co., 114 111. 174; Hommershaw v. Wolver- sonable means to carry out the intention of
ton W. W. Co., 6 Exch. 137; Reg. ■». his employer. Johnston ®. Kershaw, L. R.
Starrs, 17 Can. Sup. Ct. 118; Sharpe IJ. San 2 Ex. 82; Richardson v. Anderson. 1
Paulo R. Co., L. R. 8 Ch. 605, note. Camp. 43, note; Robinson v.. Mollett, L. R.
3 Vanderwerker v.Y. C. R. Co., 27 Vt. 7 H. L. 802. It has been held that be
125 [1854] ; Baum v. Covert, 62 Miss. 113 could employ a surveyor to make out the
[1884] ; Engleby v. Harvey (Va.), 25 S. E. quantities. Moon v. Guardians, etc., 3 Bing.
Rep. 225; Alexander v. Robertson, 86 Tex. N. C. 817; Mayor v. Eschbach, 17 Md. 276;
511; McKey v. Nelson, 43 111. App. 456: and see Taylor v. Hall, 4 Ir. R. C. L. 467;
and see Wendt iJ.Vogel, 87 Wis. 462; Bowe Wigglesworth^. Dallison, 1 Sm. L. C. (7th
v. United States, 42 Fed. Rep. 761. ed.) 606.
*Vanderwerker v. V. C. R. Co., 27 Vt.
* See Sec, 849a, infra.
§ 505.] CONTRACT STIPULATIONS. 475
were sunk below the surface of the building site unbeknown to either the
owner or contractor/
Even in the absence of a clause requiring extras to be ordered in writing
or weekly accounts to be rendered, the engineer cannot order extra work or
change the contract terms without special authority, which must be shown
by the contractor. When orders have been given for additional work by the
engineer, either within or entirely without the contract, the ordinary prin-
ciples of the law of agency will apply. In general, the architect or engi-
neer is an agent entrusted only with power to see that the works contemplated
by the contract are properly executed and completed; he cannot therefore
bind his employer to pay for any additional work." It is also true of a city
engineer.'
554. Who May Authorize Extra Work or Order Alterations on Behalf of
the Parties. — It has been shown that the engineer or architect cannot,
unless expressly or impliedly authorized, order work or materials outside of
or in addition to those called for in the contract, whether the contract
requires that such extras shall be ordered in writing or not; and notwith-
standing he has power by the terms of the contract to direct alterations,
additions, and changes, he cannot render his company liable for extras by
Terbal orders when the contract forbids their being ordered in any other way
than in writing. A provision that work shall be under the supervision of a
committee on streets and the engineer in charge, confers no authority upon,
them, or any of them, to change or modify in any essential particular the
provisions of the contract." * Modifications of contracts by unauthorized
officers are not binding upon the city.' Extra work done at their request
cannot be recovered for.'
555. Boards, Councils, Committees, and Corporate Bodies must Act as a
XJnit.f — In law nobody can make changes in a contract or create new obli-
gations thereunder, except the parties thereto or their authorized agents.'
It is sometimes important to know who are authorized agents to order extra
work or alterations in the contract, plans, and specifications.
Cases in which doubt most frequently arise are those of associations, in-
»Michaud ??. McGregory (Minn.), 63 N. « Dillon's Mun. Corp., 8 451, note 1;
W. Kep. 479. Bonesteel v. Mayor, 22 N. Y. 162 [1860] ;
2 Emden's Law of Building, etc , 220. Hague v. Philadelphia, 48 Pa. St. -527;
3 Murphy v. City of Albina (Oreg.), 29 O'Harra «?. New Orleans, 30 La. Ann. (Pt.
Puc. Rep. 353; semble, Reus v. Grand 1) 152.
Rapids 'Mich.), 41 N. W. Rep. 263 [1889]; « Addis v. Pittsburgh, 85 Pa. St. 379
but see Mulholland v. Mayor (N. Y.), 20 N. [1877] ; O'Brien v. City of N. Y., 139 N".
E. Rep. 856. Y. 542; Sexton v. Cook Co., 114 111. 174;
* Bonesteel v. Mayor, 22 N. Y. 162; Rens Benton Co. v. Patrick, 54 Miss. S40; Camp-
V. City of G. R., 73 Mich. 237; Dillon v. bell v. Day. 90 111. 363; Gibson Co. v.
Syracuse. 9 N. Y. Supp. 98; Genovese v, Motherwell I. Co.. 123 Ind. 364, contra;
Mayor, 55 N. Y. Super. Ct. 397; but see and see 'Eigemsm v. Fostj Co., 82 Ind. 413.
Boartl V. O'Connor (Ind.), 35 N. E. Rep. ' Bray v. Loomer (Conn.), 23 Atl. Rep.
1006. 831.
*&e Sees. 38-39, 370-380, supra, and Sec. 768, infra, f See Sees. 39, 40, and 48, supra.
476 ENGINEERING AND AllCHITECTURAL JURISPRUDENCE. [§ 555.
corporated or otherwise, where the contractor has to deal with boards or
committees, who are themselves the representatives or agents of a city, com-
pany, church, or society, or its governing board. It is a well-settled rule
that the affairs of a corporate body, private or municipal, can be transacted
only at a corporate meeting, regularly convened, and that the acts of indi-
vidual members in no way bind the corporation. The only existence of the
common council of a city is as a board, and its members can do no valid act
except as a board/ The board must act as a unit, and only at meetings
regularly called.' Promises by individual members of a municipal board to
pay existing debts of the board made at different times and places, and
without that joint official deliberation which the law requires, are not binding
upon the city/ A written order for materials and supplies signed by the
majority of the members of a school board with promises to ratify the con-
tract at the next meeting of the board is not binding, if the board fail or
refuse to ratify the contract, even though the materials have been delivered.*
The agreement to ratify is void, being against public policy,^ and the
members have no authority to act except when together in session. The
same rule has been held for street commissioners ' and for county commis-
sioners,' and may be taken to be general.®
If the power to contract is conferred upon two or more bodies they must
all meet for consultation and deliberation and act together. When they
have done so the vote of the majority will control, even if one of the bodies
did leave before the vote was taken.'
Knowledge obtained by members of a city council as individuals, that a
demand had been made for extra compensation for work done, is not to be
charged to them when they voted to accept the work, unless the demand was
made of the council when the vote was taken.^" Yet a notice to a council-
man of a defect in a street has been held a notice to the city, although the
1 Mmpby^j. Albina (Ore^.). 29 Pac. Rep. 115 111. 502; Miller v. McCaffrey, 9 Pa. St.
?55 [1892]; ci^/n^'l Dillou'sMunic. Corpus. 245; Board of Com'rs. v. Bunting (Ind),
A^)i), note; Board of Com'rs. v. Bunting 12 N. E 'Re^.\^\\l^Sl'\, changes in plans.
(Ind.). 12 N. E. Rep. 151; 15 Amer. & * McCortlev. Bales, 29 Ohio St. 419; and
Eng. Ency. Law 1028; Dey ^. Jersey City, see Manfs. Fur. Co. v. Kreiner (S D), 64
19 N. J. Eq. 412; Butler v. Charleston, 7 K. W. Rep. 528.
Gray 12; Turnpike v. Craver. 45 Pa, St. * -S^d Mayor «. Britton, 12 Abb Pr (N".
38(V; In re St. Helen's Mill Co., 3 Sawy. Y.) 307, note; and Briitou t). Mayor, 21
88; Zottman v. Sas Francisco, 20 Cal. 96; How. Pr. (N. Y.) 251.
Gash weiles^. Willis, 33 Cal. 11; Schunira^?. ^ Schumm v. Seymour, 24 N. J. Eq. 143.
Seymore, 24 N. J. Eq. 143; Commonwealth "' Potts v. Henderson, 2 Ind. 327.
V 'Hurd (Pa.), 35 Atl. Rep. 682; City of » See Moser v. White, 29 Mich 59; nnd
Waco V. Prather (Tex.), 37 S. W. Rep. see Heman Const. Co. v. Loevy 2 Mo.
312. App. Rep 1123; Eigeman v. Posey Co., 82
''15 Amer. & Eng. Ency. Law 1029; Ind. 413; Campbell d. Brackeiiridge, 8
cases cited in Fleming v. Village of Sus- Blackf. (Ind.) 471; Archer v. Allen Co., 3
pension Bridge. 92 N. Y. 368 [1883]. Blackf. (Ind.) 501.
3 Strong «j. Dist. of Columbia, 4 Mackey » Gildersleeve v. Bd. of Ed., 17 Abb.
(D. C.^ 842; accord, Shaw v. First B. C. Pr. (N. Y.) 210.
(Minn.), 40 N. W. Rep. 146, 44 Minn. 22: '<> Murphy v. Albina (Oreg.), 29 Pac.
and see Kerfoot ■». Cromwell Mound Co., Rep. 353.
§ 556.] CONTRACT STIPULATIONS. 477
member was not at the time sitting in the council/ Knowledge of a council-
man is not knowledge of the council/ *
It therefore follows that the assent of individual members of a city
council or board to changes ordered by the engineer is not binding upon
the city unless ratified by the council at a regular meeting, nor is a ratifica-
tion of such orders to be implied from acceptance and use of the works.'
If the charter provides that no improvement shall be ordered " except by
ordinance, which shall set aside a specific appropriation for the work ordered,
based upon an estimate of its cost," the contractor is bound to take notice
of the amount of the appropriation, and he cannot recover for extras
ordered by the engineer in excess of the appropriation/ If a corporation or
association act through a building committee, and a major part of that com-
mittee concur or act in making a contract o/ changing its terms, it will be
binding upon the committee and company within the scope of the com-
mittee's authority/ The majority of such a committee may constitute a
quorum to do business/
If an act creating a board of commissioners empowers them to contract
for specific works, and further provides that the work may be intrusted to
engineers of the department of public works, as the commissioners shall
direct, but declares that in no event shall the city be held in any action
brought under any contract made by the commissioners to any greater or
other liability than that expressed therein, it prohibits the contractor from
bringing an action for the increased cost of the work contracted for, and
occasioned by errors of the engineer in giving erroneous grades, lines, and
centers/
556. Ordinances, Resolutions, and Appropriations cannot be Changed
by Members of the Bodies Creating Them. — Contractors doing public work
under the supervision of a committee or engineer, but authorized by ordl
nance or a resolution of a public board, should keep strictly within tho
ordinance or resolution directing the work. The work undertaken by the
contractor should comprise only those things authorized by the act or reso-
lution, and the appropriation made should not be exceeded by the cost of
the work performed. Orders and directions by the committee or engineer
1 Logansport i\ Justice, 74 Ind. 378; 322; Louisiana v. Miller, 66 Mo 467,
Frazier v. Borough of B. (Pa.), 33 All. where engineer undertook to order a side-
Rep. 691. walk.
2 Frazier tj. Borough of B. (Pa), supra; ^ McNeil v. Boston Chamher of C.,154
see also cases cited vi Woodruff v. Roch. & Mass. 277; Howard v. School, 78 Me. 230.
P. R, Co , 108 N. Y. 39. « Damon v. Granby, 2 Pick. (Ma^s.), 345;
3 Murphy v. Albina (Oreg;), 29 Pac. Rep. see also Meth. Epis, Parish v. Clarke, 74
353; Sexton i). Cook Co.. 114 111. 174; Me. 110.
Benton Co. v. Patrick, 54 Miss. 240; Shaw ^ O'Brien v. City of New York (N. Y.
t). 1st Bap Cb., 44 Minn. 22: see Mur- App.), 35N.E Rep. 323; accord, Trenton
douirh V. Revere (Mass.), 42 N. E. Rep. Loco. Co. v. United States, 12 Ct. of CI.
502.^ 147.
*Perkinson v. St. Louis, 4 Mo. App.
* See Sec. 849a, infra.
478 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 557.
in charge should be carried out with caution, for authority to contract, or
to make important changes increasing the cost of the work, or doing away
with important parts of the work, are acts which councils, boards, etc., can-
not delegate to others/ The committee having such work in charge cannot
order work to be continued beyond the stage named in the resolution, nor
can they by approving such an extension ordered by the architect render
the city or county liable for such work or for damages suffered by under-
taking such work.'' They cannot require nor properly request the con-
tractor to stop work pending an injunction suit, and the contractor cannot
recover for delay due to granting such request.' * 'They cannot change
the site of a structure and render the county responsible for the extra
expense attending the change, even when they have been authorized to
select and submit the site to the county board before the contract was
awarded."* f In an action for extra work under a contract, it is error to exclude
evidence tending to show that the extra work was either directly forbidden
or unauthorized by the only responsible officials empowered to authorize
such extra work.*
557. The Acts of Individual Members may be Ratified or Adopted by
the Board. — When a contractor has in good faith performed his contract
and the city has had the benefit thereof, there is a strong equity in his
favor entitling him to the benefit of a ratification upon slight evidence if
the ratifying body has general power over the subject-matter of the con-
tract.' The formal action or resolution of the common council is not there-
fore always necessary to establish the assent of a municipal corporation to a
change and modification of a contract; but such assent may be implied
from its acts relating to the contract work, unless the contract is required
to be made in a prescribed manner by statute or charter, when it must be
annulled in the same manner.''
Acts of the engineer or of individual members of a council or board
may be ratified by an express vote of the board at a regular meeting or by
some acts which amount to an adoption of the unauthorized act.^ An
action brought upon the contract made by an unauthorized person,' or the
^appropriation of the benefits of such a contract, when restitution is possible,
' Potts V. Henderson, 2 Ind. 327; Ma- (Minn.), 46 N. W. Rep. 146.
thews ■». Alexnndii.'v, 68 Mo. 115. ^ Fisher v. Williamsport, 1 Pa. Super.
2 Sexton '0. Cook Co. (111.), 114 111. 174 Ct. Rep. 386.-
[1891]: and see Bass Fd'y Wks. v. Parke « Moore i}. Mayor, 73 N. Y. 238.
Co., 115 Ind. 234. ' Dillon's Munic. Corp'ns (4tli ed.), §
•'' Math ewson I?. Grand Rapids (Mich.), 50 453; Norwalk Gas. Lt. Co, '«. Norwalk
N. W. Rep. 651 ; hut see Walker v. Fitch- (Conn ). 28 Atl. Rep. 32.
hurg, 103 Mass. 407; and see Phila., etc., R. ^ Silsby Mfg Co. v. AUentown (Pa.), 26
Co. V. Howard, 13 How. 307 ; so, 1 Am. All. Rep. 646.
Ry. Cas. 70. » Buffalo v. Bettingen, 76 N. Y. 393;
4 Hague V. Philadelphia, 48 Pa. St. 527 Jones v. Gilchrist (Tex.), 27 8. W. Rep.
[1865] ; and see Damon v. Granby, 2 Pick. 890.
'(Mass.) 345; and Shaw 'd. First B. C.
* See Sec. 689, infra \ See Sec. 48, supra.
§558.] CONTRACT STIPrLATI0N8. 479
may amount to an adoption of that contract. * Therefore when a committee
of a common council employed a builder to prepare plans and gpecifica-
tiona for a structure, which they had not the power to do, it was held that
-an appropriation and use of the plans by the council was a ratification of
the committee's act in employing the builder.*
Acceptance and occupancy of a public building by a cournty is not such
a ratification as will enable the builder to recover an amount in excess of
that appropriated, though caused by changes and additions in the original
plan;' but if the extra work and materials ordered by a commissioner,
under whose direction the work was to be done, are rendered necessary by
the action of the city authorities subsequent to the making of the contract,
and if without such extra work and materials the contract requirements
could not have been fulfilled, then the city is liable.^ f
Acts of acquiescence do not, as is sometimes carelessly said, ratify an
unauthorized contract; but, in the language of the better authorities, they
<lo authorize judges and juries to presume consent or ratification. A man's
oonduct may be such as, in the light of human experience or of business,
accompanies or indicates consent or approval." The use of a structure alone
may not be evidence of acceptance, but it may be evidence if accompanied
by silence and the absence of complaint, where to complain would be natural
and suitable, or if accompanied by circumstances indicating acquiescence.'
A void contract may be ratified and made binding by the action of the
school district in completing the building left unfinished by an absconding
contractor; by furnishing the same with seats, desks, and other necessary
schoolhouse furniture; by occupying the same for school purposes; and by
insuring the same/
If extra work has been done for a corporation with knowledge of the
majority of the directors, and upon assurances of one of them that the
company will pay for it, and upon the after assurance that there had been
a meeting at which the company had in fact agreed to pay it, this is suf-
ficient to raise an obligation on the part of the company to pay for such
work as it has received the benefit of, regardless of whether the director
had authority to make such assurances or whether he told the truth or not/
558. Engineer's Authority to Order Extras may be Established by Impli-
cation, Ratification, or Adoption. — Authority to make changes in the speci-
» Peterson v. Mayor, 17 N. Y. 449. » Wilson v. School Dist., 32 K H. 188 ;
• Ricbnrd v. Warren Co , 31 Iowa 381. and see Davis v. School Dist., 24 Me. 349.
» Dillon's Miinic. Corp'ns (4th ed.) § 451, « School Dist. v. Sullivan (Kan.), 29 Pac.
note 1 ; Messenger v. Buffalo, 21 N. Y. 196 Rep. 1141 ; but see Nichols v. State (Tex.),
[1860]; Board v. Newlin (Ind.), 31 N. E. 32 S. W. Rep. 452; and Reichard tj. Warren
Rep. 465 ; and see Cunningham -». Fourth Co., 31 Iowa 381.
B. C. (Pa.), 28 Atl. Rep. 490; senible, Stef- ^ Tryon v. White & Co., 62 Conn. 161,
fin V. St. Louis (Mo.), 36 S. W. Rep. 31. two justices dissenting; see also Cunning-
< Delafield v. Illinois, 26 Wend. (N. Y.) ham v. M. S. & F. C. R. Co., 18 N. Y.
193 ; Mayor v. Reynolds, 20 Md. 1. Supp. 600 [1892], and cases cited.
* See Sec. 377, supra. t iSee Sees. 643 and 701, infra.
480 ENOINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 558.
fications or contract and to order extra work or additional materials may
be implied sometimes by reason of the parties' acts or consent, expressed or
implied, before or after the order was given. Such authority may be im-
plied from previous orders that have been honored and settled or paid for^
or it may be established by a subsequent ratification or adoption by the
parties. If an engineer or architect has been allowed on several prior oc-
casions to make similar changes or orders at an extra cost to the contractor,
and the owner has, without protest or reservation, paid for such work or
materials or delay, then he cannot, in fairness, refuse to pay for a later order
or charge without notice to the contractor of an intention not to pay. Such
is the law. It was so held when the owner of a building had ratified the acts
of his architect as many as seventeen times, in making changes in i;he
plans and specifications, and even when the change in question entailed an .
extra expense of over $4,000.' The fact, however, that the owner has on
one occasion paid for work done without proper authority does not create
a contract to pay for other unauthorized work ordered by the architect."
The fact that there has been a course of dealing in which the engineer
has made purchases and ordered things, and the contractor, acting on the
faith of his having proper authority, has supplied work and materials, i&
sufficient to make the owner or employer responsible for such orders, and
neither can abrogate the contract made by the engineer on the ground that
he did not possess such authority in fact.' The ratification must be fully
established, and the mere act of the company taking possession and making
use of the works will not amount to a ratification of the engineer's acts or
agreements on behalf of the company, in the absence of knowledge on its
part of the engineer's promises on its behalf.*
If the engineer assumes to act as agent of the owner and makes orders
with his knowledge and consent, such knowledge and consent will amount
to a ratification and the owner will be bound.^ The owner must have full
knowledge of the material facts concerning the engineer's acts on his behalf,,
and if with such knowledge he does not disavow them within a reasonable
time he will be held to have ratified them." He must have had an oppor-
tunity to repudiate or ratify the engineer's unauthorized acts,^ and the fact
» Jnckson A. I. Wks. «. Rouss, 15 N. Y. Exoh. 137 [1851] ; Woodruff v. R. & P.
Supp. 137. R. Co., 108 N. Y. 39 [1888] ; semble, Baum
"Sexton v. Cook Co,, 114 111. 174; v. Covert, 62 Miss. 113 [1884]; and see
Starkweather v. Goodman, 48 Conn. 101 ; Michigan S. Co. v. Iron Rang- & H. B. R.
O'Ktefe V. St. Francis' Cb., 59 Conn. 551 Co. (Mich.), 59 N. W. Rep. 646; and see
[1890]. Keim ^. Lindley (N. J.), 30 All. Rep.
3 Levy V. N. Y. Cent. & H. R. R. Co., 1063.
24 N. Y. Supp. 124 ; Mo. Pac. Ry. Co. v. * Crockett?). Chattahoochee B. Co. (Ga.),
Simons (Tex.), 25 S. W. Rep. 996 ; see also 21 S. E. Rep. 42; Wallis v. Robinson, 3-
Shinn v. Hicks (Tex.), 4 S. W. Rep. 486 F. & F. 307.
[1887] : Smith v, Bd. Miami Co. (Ind.), 33 * Gases collected in 1 Amer, &Eng. Ency,
N. E. Rep. 243 ; and see Tall man v. Kim- Law 441.
ball (Sup.), 26 N. Y. Supp. 811, a me- "^ Williams v. Storms, 6 Cold. (Tenn.)
ch(i"ic. 203.
* Horamersham v. Water Works, 0
§ 558.] CONTRACT STIPULATIONS, 481
that he did not instantly repudiate them on being informed is not of itself
a ratification.* Neglect to give notice of a disavowal does not amount to a
ratification unless the party who keeps silent when he ought to speak is
benefited or the other party is injured thereby.' As to what is a reasonable
time must depend upon the circumstances of each case and the conditions
in which the parties are placed. It would seem proper that an owner
should have time to confer with his architect and get his side of the story.
The fact that an owner has received a written statement or bill of extras
without objecting at the time will not, it seems, estop him from afterwards,
within a reasonable time, making objections to them, or to afterwards deny
his architect's authority to order them, it not appearing that the owner had
committed any act to induce the contractor to expect or to rely upon his
paying for them.^
If the unauthorized acts of the engineer are to the advantage or profit
of his company, it seems his employer may elect to adopt them or not;
and so long as the condition of the parties is unchanged tKe contractor can-
not prevent such acts from being adopted because he prefers to treat the
agreement as invalid.* It was so held where a city engineer changed the
grade of a street that had been fixed by ordinance. The court held that
the city might repudiate the act of the engineer or ratify it by adopting
the irregular grade, and having done so, no third person as a propert}
owner could intervene to avoid the contract.^ Part payment of an esti-
mate containing extra work ordered without authority has been held to
amount to a ratification."
The fact that the company has paid other claims created by the engineei
without authority, but to other parties than the contractor, will not rendei
the company liable to pay Mm for unauthorized work unless the fact had
been known to the contractor at the time he did the work, and was a factoi
in inducing him to believe that the engineer had the necessary authority.'
To establish the authority of the engineer to hire and discharge his
assistants, it may be shown that the person who formerly held the posi-
tion of engineer had, with the employer's knowledge, hired and discharged
his assistants.®
It seems that authority to enter into a contract on behalf of a company
confers authority to extend the time of performance."
It has been held that a submission to arbitration of a claim for extra
' Miller v. Excelsior Stone Co., 1 111. 273 [1879].
App. 273 ; Caswell i). Cross, 120 Mass. « Abells v. Syracuse (N. Y. Sup.), #
545. N. Y. Supp. 233 [1896], Follett aud Green,
2 Whittemore v. Hamilton, 51 Conn. J..T., dissenting.
153 . Johnston v. Berry, 3 111. App. 256. ' Vnnderwerkeri). V. C. Ry. Co., 27 Vt.
2 Starkweather v. Goodriian, 48 Conn. 125 [1854].
101 [1880]; and see Sharpe v. San P. Ry. « White v. San Antonio W. W. Co.
Co., 8 C II. App. 607. (Tex.), 29 S. W. Rep. 252.
* Andrews v. ^tna Life Ins. Co., 92 N. ^ Locust Mt. W. Co. v. Yorgey (Pa.), 13
Y 596. Atl. Rep. 956 [1888].
« McKnight v, Pittsburgh, 91 Pa. St.
482 ENGINEERINO AND ARCHITECT VRAL JURISPRUDENCE. [§ 559.
work which had been ordered by a superintendent of the works was a rati-
fication of his agreement to compensate the contractor for the extra work.*
559. Liability for Extra Work may be Assumed by a New or Supple-
mental Agreement. — Liability for extra work is probably most frequently
created by the employer or company agreeing or undertaking to regard cer-
tain work as extra or to pay the contractor an additional sum or price for its
performance when the question is raised as to who shall bear the expense
of work not strictly and clearly within the terms of their contract. When
the employer has so agreed to pay an extra price, he cannot insist after the
work is done that the written contract included it and required the con-
tractor to do it at his own expense.^ Such an agreement is regarded either
as an independent collateral agreement or as an abandonment or waiver of
the original contract, or such part of it as the new agreement refers to, and
a substitution of the new terms agreed to; more often the latter."
660. Contract Stipulations Modified or Rescinded by Subsequent Agree-
ment.— Evidence of a prior or contemporaneous agreement or understand-
ing between two parties to a contract is not admissible to vary the terms of
a written agreement, because it is presumed that the contract contains all
the terms of the agreement, but evidence of subsequent agreements modify-
ing, changing, or even rescinding a written agreement is admissible.*
Illustrations are afforded in almost every piece of construction where
the parties, acting upon previous understandings, undertake to do certain
things in a written contract that they would not have assumed to do if
they had realized the worthlessness of their claims for remuneration there-
for. An instance is shown in the case where a company had verbally
promised the contractor, either at the time the contract was executed or in
the preliminary negotiations concerning it, to construct a slope wall against
an embankment as his work advanced which would have prevented damage.
It was held that the promise could not be shown because of the rule that
such parol evidence_was_jnadmissible to control_or_vary_a contract in
writing.*
"*" The owner of a building which had been erected under a contract and
specifications that did not require the builder to do the papering was not
allowed to prove an oral agreement made at the time of the written con-
tract that S50 should be deducted from the contract price in consequence
of the omission of the papering.'
» Jones V. Gilchrist (Tex.), 27 S. W. Rep. v. Everhard, 52 Wis. 205; hut see Chicago
890; see also DdiVh V. Ford (Md.), 32 Ail. «fe Gt. E. R. Co. v. Vosburg, 45 111. 311;
Rep. 280. McGraw v. P. & L. E. R. Co., 2 Cent.
2 Stewart v. Keteltas, 9 Bosw. (N. Y.), Rep. 565.
261 [1862]. 4 Boyle ?j. Airawam Canal Co., 22 Pick.
3 Lynch v. Henry (Wis.), 44 K W. Rep. (M'lss.i, 881 [1839].
837; see also Osborne v. O'Reilly (N J ). 9 ^ McGiiinness v. Shannon (Mass ), 27 N.
AM. Rep. 20;-^ [1-^871; Rir^^e v. Gates E. Rep. 881 [1891]: see <lso to the same
(Wis.), 38 N. W. Rep. 181 [1888]; Brown effect Hills v. Rix (Minn.), 46 N. W. Rep.
* See Chap. V, Sees. 122-131, swgra.
§ 661.] CONTRACT STIPULATIONS. 483
561. Simple Contracts and Those Under Seal may be Changed by Parol. —
If the contract is written but not sealed, and it is not one which the law
requires shall be executed in writing, the parties themselves may, at any
time before it is performed, by mutual consent, agree orally either to waive,
dissolve, rescind, or annul the original contract or in any manner agree to
amend, add to, or subtract from, or change or qualify the terms of the
former agreement. ^ *
By the common-law contracts under seal could not be modified, waived,
or discharged by a new parol agreement; but to-day in England and in the
United States, where the new procedure prevails, and where the use of
private seals is abolished, an executory sealed contract may be modified,
discharged, or rescinded by a subsequent parol agreement founded upon a
sufficient consideration/ By ignoring this rule of the common law the
chief object of executing a contract under seal has been frittered away. A
contract under seal was an instrument of a higher dignity than a simple-
agreement, and it could be changed, released, or rescinded at law only by
an instrument equally ceremonious and important. A court of equity was.
not bound by the same rules as a court of law, and in it the rule was other-
wise, and where the jurisdictions of law and equity are blended and an
equitable defense can be interposed a parol release of a sealed contract will
be respected.^ The tendency throughout the United States is to apply the
same rule to sealed instruments that is applicable to simple instruments.
In many cases it is held that the new parol agreement must have been car-
ried out in full in order to discharge the former sealed contract;" that the
agreement must be executed or have been followed by actual performance.
The ground of these decisions is probably that the parol contract is lacking
a consideration if there has been no performance.^ It is frequently held in
construction contracts where the undertaking to make changes or furnish
297; Bupp«. O'Connor (Tex.), 21 8. W. ler(Md.), 11 Atl. Rep. 174 [1888]; Kalman
Rep. 619; but see too Pishkos v. Wortek v. Bnylis, 17 Cul. 291; McCreery v. Day,
(Tex ), 18 S. W. Rep. 788; Thomas ?;. Hunt 119 N. Y. 1; Robinson «?. Hyer (Fla.), 17
(N. Y.), 3 Transp. App. 191 [1867]. So. Rep. 745; and see cases under seal which
^ 28 Amer. & Eng. Eucy. Law 537; cases have been varied b^/ parol, McCreery v. Day,
in 17 Amer. &'Eui^. Ency. Law 447, note; supra; Badders v. Davis, supra; Cook v.
Badder^ v. Davis, 88 Ala. 367 [1889] ; Bart- .Murphy, 70 111. 96: Randel v. Chesapeake
let. T. Stanchfield, 148 Mass. 394 [1889]; & D. C. Co. 1 Harrinirton 233 [1833];
O'Donnell v. Clinton, 145 Mass. 461; Morrill v. Colehour, 82 111. 618.
Bishop V. Bus«e, 69 111. 403; McGran v. N. ^ Cases collected in Amer. & Eng. Ency.
Lebanon R. Co., 29 Pa St. 82; Toledo S. Law, vol. 3, p. 890; vol. 20, p. 742; vol.
L. & K. R. Co. V. Levy (Ind ), 26 N. E. 21, p. 68; vol. 28, 539.
Rep. 773 [1891]; Greene v. Paul, 155 Pa. » McCreery v. Day, 119 N. Y. 1.
St. 126; West I'. Piatt, 127 Mass. 367: On- * McCreery v. Bay, -supra; Voege v.
derdonk v. Gray. 19 N. J. Eq. 65; Malier Ronalds, 31 N. Y. Siipp. 353; Sigourney
V. Davis, etc., Co. (Wis.), 57 N. W. Rep. v. Sibley, 21 Pick. (Mass.) 101: Monroe v.
357; West Haven W. Co. v. Redfield, 58 Perkins, 9 Pick. (Mass.) :a98 [1830]; Ben-
Conn. 39; Baum v. Covert. 62 Miss. 113 son v. Shotwell (Cal.), 37 Pac. Rep. 147.
[1884]; Fitzgerald v. Fitzgerald Constn. ^ Hasbrouck v. Winkler, 48 N. J. Law
Co. (Neb.), 59 N. W. Rep. 838; Groflfam 431; Albert v. Ziegler, 29 Pa. St. 50.
V. Pierce, 143 Mass. 386; O'Brien v. Fow-
* See Sees. 130-131, supra.
484 ENGINEERING AND AROHITECTURAL JURISPRUDENCE. [§ 562.
extras is the consideration for the parol agreement to pay additional com-
pensation, that a sealed instrument may be modified or rescinded by parol.*
562. The Agreement to Waive or Rescind should be Supported upon
a Sufficient Consideration. — Without doubt a contract to waive, dissolve,
rescind, or annul a contract in writing or under seal, or to in any manner
alter, add to, or subtract from, or qualify its terms requires a consideration
to support it as much as does any other contract.' If no consideration
passes at the time the contract is made — i.e., if nothing is paid to induce the
owner to consent to the changes proposed, and it is not clearly proven that
the agreement was bilateral, a mutual exchange of promises — then the con-
sideration must be the performance of the work required by the alterations,
and until the contractor has performed such work he cannot demand com-
pensation therefor. It has been held that the original consideration may
be imported into the oral agreement," and that no consideration was neces-
sary; but at best such decisions must be regarded as doubtful law, and they
have not been followed.*
Where the agreement to vary or rescind is mutual between the parties,
the consideration for the promise of either party is the renunciation by the
other party -of his rights under the contract. Each party abandons his
rights in consideration that the other party will do likewise." If the con-
tract has been executed and wholly performed on one side as by the con-
tractor, then the owner no longer has any such rights to forego, and the
contract cannot be rescinded by a simple agreement unless it is founded
upon some new consideration, which would amount to an accord and satis-
faction." If the change is entirely on one side — i.e., imposes new obligation
upon only one party only — it will not hold unless the contract has been
rescinded, for it lacks the necessary consideration.''
So in case of a breach of tlie original contract, the rights of either party
may have been destroyed, so that the consideration would be wanting.^ If
the change be followed by actual performance of the substituted agreement
it will hold, whether made before or after breach of the original contract.^ *
563. Consideration may be Founded upon a Claim. — As there are no
degrees of validity in valuable considerations, it follows that almost any
pretense to a claim will be a good consideration, whether the claim would
^ See cases in 3 Amer. & Enir. Ency. Law and vol. 3, p. 889.
891; and Hallenbeck v. Kindred (N. Y.), ^ See Foster v. Dawbcr. 6 Exch 839-
15 N E. Rep. 887 [1888]. Hill v. Smith, 34 Vt. 535; McCoiraick
^ Anier. & Eng. Ency. Law, vol. 20, p. Harv. M. Co. v. Wilson (Minn ), 40 N W
744; vol. 21, pp. 69, 70; vol. 28, p. 538. 571 [1889], and eases cited.
3 Lynch «. Henry, 75 Wis. 631. ' 3 Amer. & Eng. Ency. Law 890.
^ Eq. L. Assur. Soc. ■». .Smith, 25 111. ^ Semble, 28 Amer. & Eng. Ency. Lhw
App. 471; Brown v. Catawba Riv. Lumb. 537.
Co. (N. C), 23 S. E. Rep. 253. » McCreeder v Day, 119 N. Y. 1; Mc-
^ Brown v. Catawba Riv. Lumb. Co., Clay «. Gluck (Minn.), 40 N. W. Rep. 875
supra; 21 Amer. & Eng. Ency. Law 69, [1889].
* See Sees. 69 and 122-131, supra.
§ 5G3.] CONTRACr STIPULATIONS, 485
have been successful or not.* The contractor, when he finds he is not.
making any money on a job, may under the plea of misrepresentations or
some other frivolous pretense refuse to proceed with the work, or threaten
to rescind the contract; and if the owner or principal contractor promise
jidditionul compensation under such circumstances, it will be supported
upon the claim as a consideration.' So when a contractor claimed that he
had made a mistake of $500 in his estimate of the cost and price of a build-
ing which he was under contract to erect, whereupon the owner verbally
agreed to pay him $500 in addition to the contract price, it was held that
the new and subsequent agreement was founded upon sufficient considera-
tion, and was therefore binding on the owner;" and when a contractor has
undertaken to do work which turned' out to be different and much more
difficult than was expected, and he had given notice to the company that
he could not carry out his undertaking at the price agreed upon, and had
quit work, and the company, to induce him to complete the work, promised
to pay him additional compensation for his work, it was held that tlie com-
pany were bound to pay the extra price."
There are cases to the contrary which hold that the contractor by per-
forming his work has done no more than he was obliged to do by the original
contract, and that, therefore, it could not be a consideration for a new and
subsequent agreement/* It was, therefore, held in New York that when a
party was under contract to do work for another for $1000, a subsequent
agreement to pay $1500 for the same work was as barren of consideration
as a promise to pay a man for doing nothing at all.® These cases maintain
that when a contractor is bound by his written contract to do certain work,
a promise to pay extra compensation for the same work is not binding as a
legal contract. It was so held when a contractor had been promised extra
pay for hard-pan excavations, which the court held were included in earth
excavations.'' A promise to pay additional compensation to the contractor
if he will refrain from an intended breach of the contract has been held
without consideration.^
1 Carter White Ld. Co. v. Kivlin (Neb.). head, 6 W. N". of C. 5r/: Miiuroe c. Per-
m N. W. Rep. 536; Dovale v. Ackerraan kius, 9 Pick. (Ma-s.) 298 [1830].
(Sup.) 37 N. Y. Supp. 959; 3 Amef. & " ° 3 Amer. &Enir. Ency. Law 891, note 1.
Enjr. Ency. Law 837. « Seybolt v. N. Y., L. E. & W. R. Co..
^^Osborne v. O'Reilly, 42 K J. Eq. 467 95 N. Y. 562.
[1887]; Cook v. Mur by, 70111. 96; Mun- ' Nesbitt v. Louisville, C. & C. R. Co.
roe V. Perkins, 9 Pick. (Mass.) 298; Hart (S. C), 2 Spears 697; and see Colcock «&
V. Launmaii, 29 Barb. (N. Y ) 410; and Co. «. L , C. & C. R. Co., 1 Strob. (S. C).
canes cited in 3 Amer. & Eng. Ency. Law 329 ; Morril v. Colehour, 82 111. 618 ; Widl-
891; a7id s«g Waikins ■«. H )dges, 6 Har. & man v Brown (Mich.), 47 N. W. Rep.
J. (Md.) 45; McHenry v. Brown (Minn.), 231 [1890] ; Fitzgerald v. Fitzgerald & M.
68 N W. R"p. 847. C. Co. (Neb.). 59 N. W. Rep. 838; Mc-
3 Cook V. Murphy, 70 111. 96 [18731. Carty v. The Hampton Bldg. Assn., 61 la.
4 Hart ®. Launman, 21 Barb. (N. Y.) 287 [1883].
410; Osborne v. O'Reilly, supra; Holmes ** King v. Duluth, M. & N. Ry. Co.
t>. Doane, 9 Cush. 135; Wilgus «. White- (Minn.), 63 N. W. Rep. 1105.
* See Sec. 66, supra, and 574, infra.
486 ENOmEEBINO AND ABCHITEGTURAL JURISPRUDENCE. [§ 564.
The cases cannot be reconciled, but in every contract a consideration
must be found, and whether a court will discover a consideration in any par-
ticular case will depend probably upon the precedents already established in
that jurisdiction and upon the circumstances attending the case in hand.
There is no doubt but that a good-faith compromise of a real claim is a
good consideration for a contract. The law favors the settlement of con-
troversies, and will find a consideration for the agreement to settle such
claims in the mutual agreements of the parties to abide the result of the
compromise/ The claim miist be such a one as can reasonably be regarded
as serious, and the parties must believe that it is a good claim. If the
party knows or ought to know that the claim has no foundation it will not
be a sufficient consideration." The trouble is, in a construction contract a
court cannot determine whether a claim made by a contractor on account of
misrepresentations, mistakes, etc., has any. valid ground or not unless he
puts the matter to trial. The proper way to avoid the question is to make
no promises except such as are to be performed for a consideration, and to
enter them upon the contract in the manner prescribed in it.
664. The Owner, City or Company may by Express Agreement on It*
Part become Liable for Extra Work, though Not Ordered in Writing. —
From what precedes it is evident that when a contract provides that no extra
work is to be paid for except by contract in writing, the parties may verbally
rescind this provision and agree to alterations.' It has been held even that
a written contract may be modified by a subsequent verbal agreement, though
the contract recites that no modifications shall be made, except in writing.*
Every effort should be made by the company and engineer to preserve
the contract intact, to meet its obligations, and perform its part of the con-
tract to the letter, and to give the contractor no opportunity to escape its
binding force. If the agreement is mutual between the parties, they may
by mutual consent verbally rescind any of its stipulations, and enter into a
new or subsequent oral agreement as to changes, alterations, or extras.*
Whether the agreement was rescinded or not depends upon the intention of
the parties, which is a question for the jury to determine * from the conduct
of the parties and all the circumstances.' The parol agreement to rescind
may even be inferred from the acts and declarations of the parties.®
1 Richardson & Co. -». Hampton (la.), 31 (Sup.), 7 K Y. Supp. 722; Clark v. Pope,
N. W. Rep. 871. 70 111. 128; Rude v. Mitchell, 97 Mo. 365;
^ See cases collected d Amer. & Eog. Ency. Porter v. Swan, 17 N. Y. Supp. 351.
Law 888 ; Read v. Hutchins, 71 Me. 590 * A. J, Anderson E. Co. v. Cleburne W.,
[1880]. I. & L. Co. (Tex.). 27 S. W. Rep. 504.
» McFadden v. O'Donnell, 18 Cal. 160 ^ Morrill v. Colehour, 82 111. 618 : Cook
[1861] ; Lewis v. Yagel. 77 Hun (N. Y.), v. Murphy, 70 111. 96 ; Kelman v. Baylis,
337, and other cases supra; Close t}. Clark 17 Cal. 291; McFadden v. O'Donnell, 18
(Com. PI.), 9 N. Y. Supp. 538; Trustees Cal. 160 [1861].
«. Piatt, 5 Bradw. 567; Ford v. United « Noble ??. Ward, L. R. 2 Exch. 135; 5 B.
States, 17 Ct. of CI 60 ; Donlin v. Daeg- & A. 65; Blount v. Guthrie (N. C), 5 S. E.
ling, 80 111. 608; Bartlett v. Stanchfield, Rep. 890.
148 Mass. 394; Condon v. Jersey City, 14 ' .SeeMusselbachr. Norman, 122 KY. 578.
Vroom 452 ; and see Hogan v. Burton ^ Chanteau v. Jupiter I. W'ks (Mo.), 7
§ 566.] CONTRACT STIPULATIONS. 487
It is not necessary tliat the written contract be expressly annulled, that
the owner may render himself liable for extras ordered orally. If he neg-
lect to give a written order for the extra work, but expressly agrees to pay
for it as extra work, the contractor may recover upon the subsequent prom-
ise so made, although it seems he cannot recover for it in an action on the
written contract.^
565. The Stipulation for a Written Order may be Waived. — The stipula-
tion for a written order may be waived by the parties, and changed by a
parol agreement or a verbal order ; ' and it is error to exclude evidence
offered of a verbal request for additions and a verbal promise to pay there-
for on the part of the owner.' Such evidence should go to the jury on a
question of waiver of the stipulation that no charge should be made for
extras unless ordered in writing and the price thereof agreed upon.*
566. The Order must be More than a Mere Request that the Work be
Done. — A contractor who intends to rely upon the abandonment of the writ-
ten agreement or its rescission, and the substitution of a parol contract,
should ask the court to submit the question of the abandonment and sub-
stitution to the jury, and must prove it to their satisfaction,'* and proof that
extra work was done at the request, or with the knowledge and consent,
express or implied, of the owner, will not alone entitle the contractor to
recover, without the owner has waived the written order required by the
contract, or has made an independent promise to pay for it." When altera-
tions and changes are merely assented to, and there is no agreement as to
their value or cost, the presumption is that no increased cost was contem-
plated/ The mere fact of assenting to extras should not deprive an owner
of the protection of his contract, and render him liable to extra charges.®
The owner must have been expressly informed, or must necessarily have
known from the nature of the work that the alterations would increase the
expense.' No recovery can be had for extra work and materials unless fur-
8. W. Rep. 467 [1888] : Blount v. Guthrie see Mulholland v. New York, 20 N. E. Rep.
(N. C). 5 S. E. Rep. 890. 856 [1889] ; and Truckee Lodge v. Wood.
1 O'Brien v. Fowler (Md.), 11 Atl. Rep. 14 Nev. 293.
174 [1888]; Badders v. Davis, 88 Ala. 367 * Flood v. Morrisey, 4 Pugsley & B. (N.
[1889]; Davis v. Badders (Ala.), 10 So. Rep. B.) 5 [1880] ; Maas i). Hernandez (La.), 19
422. So. Rep. 269.
"McLeod V. Genius, 31 Neb. 1 [1890] ; « Wortman v. Kleinschmidt (Mont.). 30
Erskine v. Johnson, 23 Neb. 261 [1888] ; Pac. Rep. 280 ; Abbott v. Gatcb, 13 Md.
Porteri). Swan. 17 N. Y. Supp. 351; Abells 314 ; Beswick v Piatt (Pa.), 21 Atl. Rep.
V. Syracuse (Sup.), 40 N. Y. Supp. 233; 306 ; Dobson v. Hudson, 1 C. B. (N. S.)
Elgin V. Joslyn, 36 111. App. 301; and see 659; hut see Moran •». Scbmitt (Mich.), 67
Illinois Inst. v. Piatt, 5 111. App. 567; N. W. Rep. 323 ; Baum «. Covert, 62 Miss.
Abern v. Boyce, 19 Mo. App. 552; Balti- 113; Cannon «. Wildman, 28 Conn. 491.
more Cem. Co. v. Coburn. 7 Md. 202; Kirk ' Badders v. Davis, 88 Ala. 367 [1889] ;
V. Bromley Union, 17 L. J. Ch. (N. 8.) 127. Bryant v. Stillwell, 24 Pa. St. 314 ; Jones
3 Porter v. Swan, 17 N. Y. Supp. 351 ; v. Woodbury, 11 Monroe 167 [1850]; Love-
Demarest v. Haide, 52 N Y. Super. Ct. lock ». King, 1 Moody & R. 60.
398; Lange v. Johnson (Wis.), 57 N. W. ^ Lovelock v. King, 1 Moody «fe R. 60 ;
Rep. 1109. Trustees tj. Bledsoe, 5 Ind. 133; Wil mot i>.
4 Bartlet v. Stanchfield, 148 Mass. 394 Smith C. & P. 453.
[1889] ; Mowry v. Starbuck, 4 Cal. 274 ; » Lovelock v. King, 1 Moody & R. 60.
488 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 567.
nished at the request of the owner; * and the request must have been made
with knowledge or imputed knowledge that the work was not comprehended
in the written contract and that the cost would be increased thereby."
When a structure is being built for a fixed price, recovery cannot be had
for extra work merely by proving that the work was done at the owner's
request, and that it was accepted when finished; such a request has been
held to be merely a notice that the contract called for the work.' The mere
oral directions or suggestions of the employer or owner to do increased work
will not sustain a claim for extra work, unless a new contract is proven.* If
a contractor has undertaken to erect a structure according to plans, and
agrees afterwards to changes, but makes no arrangements as to a new or
different price, his recovery will be confined to the original contract price.
If the changes require extra work and material, it will be presumed that
they were included in the price agreed upon in the contract, or were done
a.t the same rate/
If the parties have proceeded with the work without any regard to the
stipulation for a written order for extras they will be held to have waived
it.® The acts of the parties must not be inconsistent with terms of the writ-
ten agreement,' but the fact that parties have had dealings that were incon-
sistent with the contract, and have substituted such dealings for the provisions
of their contract, will not bind them to the substituted acts when it appears
to have been done through a mistake or misunderstanding of the terms of
their agreement, and that they mutually abandoned such a course and con-
formed to the terms of their written contract when they discovered their
departure from its provisions.^ A request and an oral promise to pay for
the extra work done, are strong evidence of a waiver of the requirements of
the contract as to written orders, and of the substitution of an oral contract
in its stead resting upon sufficient consideration.'
567. Knowledge of Owner that Contractor is Doing Work as Extra Work,
a Strong Factor in Determining the Responsibility. — The cases have gone so
far as to hold that if the contractor had a right, or good and sufficient rea-
sons, to understand that the owner expressed a consent to be liable, irre--
spective of the written contract, and furnished the work and materials on
that understanding, the owner is bound to pay for it.^° If the owner knows
^Springdale C. A. v. Smith, 32 111. 253 'Meyer v. Berlandi (Minn.), 54 N. W.
[18631. l^^P- 9^''': Bau mister v. Patty's Execs,, 35
2 Bett «. Cook, 3 Cranch C. Ct. 666 Wis. 217 [1874].
[1829]; semhle. Thorn v. Roman (Ala.), 7 ■> Qiiinn v. Parke, etc., Co. (Wash.), 37
So. Rep. 4-28 [1890]; Johnson 'o. Weston, 1 Pac. Rep 288.
F. & F. 693 [I860]; Bartholomew v. Jack- » Howard v. Pensacola & A. R. Co , 5 So.
son. 20 Johns. (N. Y.) 28. Rep. 356.
^Collyer?). Collins, 17 Abb. Pr. 467. ^Burtlett «. Stanchfield, 148 Mass. 394
^ See Simpson v. New York, etc., R. Co., [1889]: McLeod v. Genius (Neb.), 47 N.
51 N. Y. Super. Ct. 419; Franklin v. Darke, W. Rep. 473 [1890]; Ford v. United States,
3 P. & F. 65; Thorn v. Roman (Ala.), 7 17 Ct. of CI. 60.
So Rep. 428 [1890]. '° West v. Piatt. 127 Mnss. 367; O'DonncU
5 Chicago & Gt E. R. R. Co. v. Vos- 'c Clinton, 145 Mass. 461 ; Clark?;. Smith,
burgh, 45 111. 311. 14 Johns. (N. Y.) 324 ; Lovelock v King,
§ 567.] CONTRACT STIPULATIONS. 489
that the contractor will charge extra for work he is doing, and assents to the
same, and permits him to perform the work without objection, he will be
liable for it, and will be taken to have waived a stipulation forbidding extra
work without a written order.' If the contractor has rendered an estimate
of cost of certain extras, alterations, etc., and subsequent to receiving it
the owner orders the same, he will be held liable for the price thereof accord-
ing to the estimate." * In another case it was held, that when a company-
had stood by and seen work performed, it would be held to have assented to
it ; that to thus desire or permit their engineer to order alterations and
additions, and to stand by and see expenditures going on, and to take the
benefit of those expenditures, and then to refuse payment therefor on the
ground that the expenditures were incurred without proper orders having
been given for the purpose, would be a fraud on the part of the company
ior which it would be answerable to the jurisdiction of a court of equity.'
/So when it was shown that during the progress of a building a process was
•ordered by the architect that was more expensive than that required by the
•contract, and the order was given in the presence of and with the knowledge
of the owner, and the builder's subcontractor was told that it was to be extra
work, it was declared sufficient evidence of an agreement to pay extra com-
pensation for it, and of authority to the architect to make the contract with
him.* An early Maryland case seems to have adopted a similar rule by de-
ciding that if alterations were made with the consent or by the order of the
owner they were chargeable to him, though he would not be liable for
changes directed by a joint owner, with whom he was to pay pro rata for
his share.^ To the same effect is a New Hampshire case, which held that if
the contractor deviate from the contract, and the company acquiesce with
notice and allow the contractor to' proceed with the work, the contractor
might recover on a quantum meruit.'^ Another case holds that mere knowl-
edge of the owner that extra work is being done without objection on his
part does not imply a contract on his part to pay for it, yet it is evidence
competent to be given to a jury tending to prove that there was an agree-
ment that the extra work sliould be paid for by the owner.''
If the architect has testified that the .owner had expressly ordered the
items for which he claims extra pay, it will be sufficient to sustain the find-
ing of a referee in favor of the claim, although the contractor did admit
1 Moody & R. 60 ; Rees v. Lines, 8 Car. & Jurist (N. S.) 192 [18651; semble. Yn'sley v.
P- 126 Biiridel (Pa.), 15 Atl. Rep. 854 [1888].
'McLeod V. Genius (Neb.), 47 N. W. '^ Wallis v. Rob'rson, 3 F. & F" ?07 ;
Rep. 473 [1890] ; Cooper v. United States, accord Jones v Woodbury, 11 B. Mon.
8 Ct. of CI. 199; Bartholomew v. Jackson, (Ky.) 172 ; Childress v. Smith (Tex.), 37 S.
20 Johns. (N. Y.) 28. W. Rep. 1076.
2 JNIcCormick v. Connolly, 2 Bay (S. C.) ^ Bei ry v. Thompson, 6 H. & J. 89.
401. 6 Bailey i). Woods, 17 K H. 305.
3 Hill V. So. Staffordshire Ry. Co., 11 ''BgUv Cook,3Cranch C. Ct. 666[1829],
. * See Sec. 580, iiifra.
490 BNGINBERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 568.
that without these extras the work would not have been well done, as this
did not show that they were necessary to the completion of his contract/
If the owner had ordered extra work, outside of and additional to the work
covered by the written contract, and no price was fixed by the contract or
was agreed upon at the time of the order, the contractor may recover what
it is reasonably worth.' When changes had been made in the plans and
dimensions of work by the principal contractor and architect unbeknown to
the subcontractor until after the work was done, it was held that the latter
was entitled to recover for the extra work required by the change without a
written order.'
668. If Amount of Work or Materials is Reduced by Changes. — If the
changes, on the other hand, have reduced the amount of work called for,
they have been held a good answer on the part of the company to a com-
plaint for services and materials furnished under a specific contract.* A
Connecticut case, in which a builder, by consent or request of the owner,
substituted a cheaper material than was required by the contract, no reduc-
tion being agreed to or demanded at the time, it was held that no reduction
in the contract price should be made, but that the owner should pay the
full amount.*
569. If the Work be Plainly and Clearly Outside of the Contract, the
Contractor may Eecover Extra Compensation Therefor. — If the work done
were wholly independent of the written contract and has been ordered and
accepted by the owner, he must pay for it.® In such case it cannot be called
an addition or be classed as extra work within the meaning or requirements-
of the original contract, but in legal phraseology may be entirely dehors the
contract, being so foreign to it as to amount to a new agreement, in which a
written order will not be necessary, but tire builder be entitled to maintain
an action on the new or an implied agreement,^ as for additional work in
removing obstacles unknown to the parties when the contract was made,*
^ Cassidy v. Fontham, 14 N. Y. Supp. * Cbambers v. King, 8 Mo. 517 ; Boody
151. V. R. & B. R. Co., 24 Vt. 660 ; Stewart v.
2 Baiim V. Covert. 62 Miss. 113 [1884] ; Ketaltas, 9 Bosw. (N. Y.) 261 [1862] ; Mc-
O'Brien v. Fowler (Md.), 11 All. Rep. 174 Cormick v. Connolly, 2 Bay (S. C.) 401 ;
[1888]. That an owner may by bis con- Escott v. Wbite, 10 Bush. (Ky.) 169; An-
duct be estopped from enforcing the pro- drews v. Lawrence, 19 C. B. (N 8.) 768 ;
vision against a contractor who has relied Dubois v. Delaware, etc. ,C. Co., 12 Wend,
and acted on bis conduct, sre Duner n. (N. Y ) 334 ; Hasbrouck v. Milwaukee, 21
Steubing, 120 N. Y. 232 [1890] ; Baura v. Wis. 217 ; and see Owens v. Butler Co., 4a
Covert, 62 Miss. 113 [1884]; Rhodes v. Iowa 190.; Duncnn v. The Board. 19 Ind.
Thomas (Ind.). 3 Carter 638; Smith v. 154 ; Mowry ®. Starbuck, 4 Cal. 274.
Gugerty, 4 Barb. 614; Holloway ?j. Frick "" Emden's Law of Building, etc., 219,.
(Pa.), 24 Atl. Rep. 201. and references; Busse v. Agnew, 10 111.
' Fitzgerald «. Beers, 31 Mo. App. 356. App. 527.
"Everroad v. Schwartzkopf (Ind.), 23 « Michaud «. McGregor (Minn.), 63 N".
N. E. Rep. 969. W. Rep. 479 ; and see Wood v Fort
sBnibazon «. Seymour, 42 Conn. 555 ; Wavne, 119 U. S. 312 [1886]; Ford v.
accord, Kingsley v. Brooklyn, 78 N. Y. United States. 17 Ct of CI. 60 ; Palmer©.
200, where shorter piles were driven than Stockwell, 9 Gray 237 ; St. John v. Potter,
were specified ; but see Trustees v. Piatt, 5 19 N. Y. Supp. 230 ; Lee v. Brayton (R.
Bradw. 567.
§569.] CONTRACT STIPULATIONS. 491
or for work required to tear down and rebuild an important part of struc-
ture properly erected.' *
The work must be clearly beyond or outside of the contract, and done
under a subsequent or antecedent direction in the same manner as if no
written contract liad been entered into."^ If the work is not under the con-
tract at all, its value cannot be recovered in an action on the contract;' but
whatever the action, the work must be positively shown to be entirely sepa-
rate and outside of the contract, and that it was done under orders distinct
from it. This can scarcely be done without the production of the contract
itself, to show how much it comprised." Other cases maintain that the
work must have been expressly authorized by the owner, or that it was so
distinct from the work required by the contract that the contractor might
recover for it under a contract implied from its acceptance and use.^ The
pleadings should show that the extra work was expressly authorized by the
owner or that it was not included in the contract/ The claim for extra
work must stand upon its own merits, as if the special contract did not exist.'
When the extra work was absolutely necessary.to the successful prosecutioji
of the undertaking, it was held that the owner was liable for its cost.^ There-
fore, when a price was named in the contract for earth excavations, and
an additional compensation was fixed for rock excavations, it was held that
no extra pay could be recovered for hard-pan excavations. That if extra
work was claimed on a quanfiwi meruit it must be shown that the work
was not included in the contract.'
In general, therefore, the question whether work is extra work and outside
of the contract can be decided only by referring to the written contract, which
must be produced in support of the contractor's claims for additional com-
pensation,'" besides proving a separate and distinct contract with the owner
or company to do the work sued for ; " but if the order or agreement be col-
lateral to the written agreement — as, for example, if it be clearly shown that
while certain work was in progress under a contract for the inside work of a
I.). 26 Atl. Rep. 256 ; Abells v. Syracuse 916.
(Sup.). 40 N. Y. Supp. 233. ' Thornton v. Place. 1 Wood & R. 218 ;
^ Board v. O'Connor (Ind.), 35 N. E. Fletcher v. Gillespie, 3 Ring. 637.
Rep. 1006 ; Fay v. Muhlker (Com. PI.), « Seymour «. Long Dock Co , 5 C. E.
SON. Y. Supp. 671. Green (N. J.) 397; but see Wiiliams v,
■ Emden's Law of Building, etc., 219 Fitzniaurice, 3 H. & N. 84i.
und English cases cited. ^ Nesbitt v. Louisville, C. & C. R. Co.,
3 Hinkle v. San Francisco, etc., R. Co., 2 Spears (S C.) 697 ; see also Drhew v. Al-
55 Cal. 627. toona, 121 Pa. St. 401-421.
* Emden's Law of Building, etc., 219. ^° Leake's DiL^est of Contracts p. 178;
5 Duncan v. The Board, 19 Ind. 154 ; Buxton v. Cornish. 12 M. & W. 426 ; Edie
Relt V Cook, 3 Cranch C. Ct. 666 [1829] ; v. Kingsford, 14 C. B. 759 ; Roscoe's Di-
<ind .s^e Jemmison v. Gray, 29 Iowa 537; gest of Bldg. Cases 36, and cases cited;
McCormick v. Connelly, 2 Bay (S. C.) Emden's Law of Building, etc., 223 ; Viu-
401. cent®. Cole, M. & M. 257 [18281.
6 Duncan v. The Board, 19 Ind. 154; " Ecc'.es «. Southern, 3 F. & F. 142.
Jeans v. Bolton (Super.), 24 N. Y. Supp.
* See Sec. 584, infra.
\
492 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 570.
building, verbal orders were given for the execution of alterations and im-
provements on the outside of the building — the contract need not be pro-
duced to support a claim for compensation for the work.^ If it be not
positively shown that the work was entirely separate from that included in
the written contract, and was in fact done under a distinct order, the con-
tractor must produce his original contract, since it may throw some light,
not only as to whether the items sought to be recovered for were included in
it, but also as to the rate upon which the parties had agreed.' It seems it
is not necessary to furnish the plans and specifications in order to have a.
witness testify as to the value of the extra work.'
The burden of proving that certain work was extra work,* or that it was
entirely outside the contract," is on the party affirming it to be so, usually
the contractor.'
670. Effects of Alterations and Changes. — The most perplexing cases,,
and probably those that have wrought the greatest hardships and injustice
to contractors and builders, are those in which extra work has been caused
by alterations and changes by which the work has been increased in quan-
tity, or if not made greater it has been made more difficult, or the mora
profitable and easier portion of it omitted. When such changes have been
made the question whether or not the contractor is entitled to extra com-
pensation is often a difficult problem. Before considering this question it
may be well to consider the effect of alterations and changes on the
contract.
571. Provision Limiting the Effect of Alterations on the Original
Contract.
Clause: "And it is also agreed and understood that such alterations,,
omissions, or additions shall in nowise affect, vitiate, or make void this
contract or any part thereof, except what is necessarily affected by such
changes, and is clearly the evident intention of the parties hereto."
The necessity of this clause will not be very apparent from what follows,
and it is frequently omitted; but as an extra safeguard it may be used
especially in those jurisdictions where the effect of changes is not well
established by law.
572. Effect of Changes when No Rights to Make Alterations have been
Reserved — Changes which do Not Destroy the Original Contract. — A question
that has no doubt often occurred to contractors in their work is, "to what
extent a company or its engineer can change, add to, or omit from the con-
tract, and yet require the contractor to execute it in matter and form."
There are two circumstances and conditions under which changes, additions,
* A retaining- wall for an embankment ^ Weber «. Hauke. supra; and A.he\\s v^
has been held extra work under a contract Syracuse (Sup.) 40 N. Y. Supp. 233.
to grade a street. Abells v. Syracuse ■* Dickinson v. Prince, 61 111. App. r35.
(Sup ), 40 N. Y. Supp. 233. ^ Howard 'o. Gobel, 62 111. App. 497.
2 Eniden's Law of Building, etc., 222, « Buxton v. Cornish, 1 D. & L. 581;
and English cases cited ; see Weber v. Vincent v. Cole, Moody & M. 257.
Hauke, 4 Mich. 198 [1856].
§572.] CONTRACT STIPULATIONS. 493
or omissions may be made, viz. : (1) Under a mutual agreement between the
parties when those parts of the contract which conflict with the new agree-
ment are mutually rescinded or annulled; (2) under an express stipulation of
the contract by which power has been reserved to the owner or his engineer
to make changes.
When no power has been reserved to make alterations, ordinary stipu-
lations and provisions such as are required by the conditions that arise in con-
struction work may be added to an original contract without varying or abro-
gating its conditions/ A special and subsequent agreement for extra work
will not amount to an abandonment of the original contract ^ so as to allow a
general action for all the work regardless of the prices fixed by the contract/
If the deviations from the original plan have been made by mutual con-
sent of the parties, but the conditions and stipulations of the original
contract have been respected, such as those fixing the times, and amounts of
payments, and no new express contract was entered into, the contractor can-
not regard the original contract as rescinded and recover for what his work
is reasonably worth, though he may be allowed to recover for the extra,
work and extra materials furnished, upon a quantum meruit.* If no price was.
agreed upon for the extra work a recovery can be had for it on a quantum
meruitJ' Nor will the omission of certain items by consent of both parties
amount to a rescission of the entire contract. The remainder of the con-
tract will remain in full force."
Stipulations and provisions may be waived by the parties without
destroying the other conditions and stipulations of the contract. It was so
held when a contractor had received monthly estimates of work done
and gave receipts therefor, as under the contract, after alterations had
been made, thus treating the contract as subsisting. The court held he
could not thereafter avail himself of such changes and recover upon a
quantum meruit, ignoring the contract.'' If contractors are permitted to
continue and complete works which have not been finished within the time
specified in the contract, the owner will be held to have waived this con-
dition, but such a waiver does not destroy the other conditions, but leaves
them intact.®
^ Andre «. Bodman, 18 Md. 241 ; Adams 662 [1889]; accord. Pepper v. Burland^
« Nichols. 19 Pick. 275 ; White v. Soto. Peaks N. P. Cas. 103; Robsoii v. Godfrev,
82 Cal. 654 ; McFadden v O'Donnell, 18 Holt N. P. Cas. 236: see also Haynes v. 2d
Cul 160; McKinney«. Springer, 3 lud. 59; B. Ch., 88 Mo. 285; Dubois v D. & H.
Cook V. Murphy, "70 111. 96; Morrill v. Canal Co., 4 Wend. (N. Y.) 285; Elgin v.
Colehonr, 82 III. 618. Joslyn, 136 111. 525; Boz irth v. Dudley, 44
2 Mather v. Butler, 28 Iowa, 253 ; Aiken N. J. Law 304; McCorraick v. Connolly, 2
V. Bloodgood. 12 Ala. 221 [1847]; Ellmaker Bay (S. C.) 401; Menne v. Neumeisler, 25
« Ins Co.. 6 W. tfe S. 439; Smith i). Bristol, Mo. App. 300.
33 loAva 24. » Aiken v. Bloodgood, supra.
^Mather v. Butler, supra; McGran v. "Menne v. Nenmeister, 20 Mo. App.
North Lebanon R. Co., 29 Pa. St. 82 300; rm^i s«g 19 Sol. J. i'fc Rep. 571.
[1857]: see also OReilly v. Kerns, 52 Pa. ' McGran v. North Leb. R. Co., 29 Pa.
St. 214; Clark v Mayor. 4 N. Y. H88. St. 82.
* Goodwin v. McCormick, 6N. Y. Supp. . « Fiynn v. Des Mowes, etc., R. Co., 63
494 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 572.
The changing of the route of a railroad which is the subject-matter of a
construction contract/ or a parol agreement to pay the contractor's men
their wages/ or an extension of the time for completion of the contract/ or a
change in the process of construction* have been held not such changes or
modifications of the original contract as will enable a contractor to recover for
his work on a quantum meruit — i.e., its reasonable value — but he has been
held to be limited to the contract prices of the contract. So far as the work
has been done in pursuance of the original contract, the contract price will
hold even though the work was done in part under the contract and in part
under a parol modification of such contract.^ As far as the contract can
be traced in the work performed and the materials furnished, the contract
price will control.' The written contract must be pursued and applied so
far as it can be traced in the intention of the parties.' The old agreement
being incorporated into the subsequent agreement, the contract in its
entirety must be construed with reference to its terms,* and it will deter-
mine the meaning and extent of the new stipulations.' The alterations,
unless otherwise expressed or mutually understood, must be executed in
their proper connection with the original contract with reference to and in
modification of which they are made.'"
The English rule is well expressed by Mr. Emden " in much the same
language. He says : " When work is to be done and materials supplied
under a building contract for certain estimated prices, and there is subse-
quently a deviation from the original contract by consent of the parties, the
contract and estimate are not on that account excluded, but are to be the
rule of payment so far as the special contract can be traced, and for any
■excess the party is entitled to sue as upon a qiiantum meruit, although the
Iowa 491 [1884]; Edgerly t5 Farmers' Ins. per v. Burland, Peake N. P. Cas. 103;
€o., 43 Iowa 587; Wood v. Miller, 55 Iowa Robson i). Godfrey, Holt N. P. Cms. 236 ;
168; Thomas v. Fleury, 26N.Y. 26 [1862]; Ran.ger v. Gt. Western, 5 H. L. Cas. 72 ;
Barclay v. Messenger, 43 L. J. Ch. 449. De Boom v. Priestly, 1 Cal. 206 ; Chicago,
1 McGran v. N. Lebanon R. Co., 29 Pa. etc., R. Co. n. Vosburg, 45 111. 311 ; Jones
St. 82; an(Zse<j Jones «). Woodbury, 11 B. v. Woodbury, 11 B. Mon. (Ky.) 167;
Monroe 167 [1850]. Andre v. Bodnian, 13 Md. 241 ; Tinker v.
2 Andre??. Bodman. 13Md. 241. Geraghty, 1 E. D. Smith 687; Sullivan
3 Haynes v. 2d B. Church, 88 Mo. 285 ; v. Sing Sing. 122 N. Y. 399 ; Goldsmith v.
Flynn i). The Des Moines & St. L. R. Co., Hand, 26 Ohio St. 101; McKinney v.
■63 la. 491 [1884|. Springer, 3 Ind. 59; White v. Oliver, 36
4 New Haven W. Co. v. Redfield(Conn.), Me. 92 ; Tibbetts v. Haskins, 16 Me. 288 ;
18 All. Rep. 978. and see Pattison v. Luckley, L. R. 10 Exch.
5 Garver v. Daubenspeck, 22 Ind. 238 330, 29 Araer. &Eng. Ency. Law 973.
{1864] : Robson v, Godfrey, 1 Stark. 275; « Carr v. Wallachian Pet. Co., L. R. 1
Goodwin v. McCormick, 6 N. Y. Supp. C. P. 636.
662 ; Clark et al. v. The Mayor, 4 Comst. » Malone d. Phil. & R. R. Co., 157 Pa.
(N. Y.) 338. St. 430; Lawall v. Rader, 24 Pa. St. 283
« Wright V. Wright, 1 Litt. 179 [1822] ; [1855].
Mather v. Butler, 28 Iowa 253 ; Marshall ^^ McCaulev v. Keller, 130 Pa. St 53
Fdy. Co. 1). Pittsburgh Trac. Co., 138 Pa. [1889] ; Wright v. Wright, 1 Litt. 179
Bt. 266. [1822] ; and see Boody ?j.^Rutland R. Co.,
' McCauley v. Keller, 130 Pa. St. 53 24 Vt. 660 ; Andre v. Bodman, 13 Md.
[1889] ; Bertrand v Byrd. 5 Ark. 651 241.
[1844] ; Cook « Murphy, 70 111, 96 ; Pep- " Emden's Law of Building, etc., 224.
^ OiiS.j CONTRACT STIPULATIONS. 495
time for completing the payments under the original contract has not
-expired when the action is commenced. But," says he, " if the work to be
carried out under the original contract has been so entirely abandoned, and
there is such a total deviation that the terms are not applicable to the new
work, and it is impossible to trace the contract and to say to what part of
it the new work should be applied, the builder is entitled to recover by
measure and value for all the work as if there had been no contract at all." *
If the extra work is of the same kind or character as that required by
the contract, the contract rate or price will fix the compensation of the
contractor.' It was so held when the completion of the work had been pre-
vented by the owner or company.' If the plan has been so changed as to
embrace some other description of work not contemplated by the original
contract, or if the value of the extra work cannot be determined by the
prices agreed upon in the contract, then the contractor may recover the
reasonable value of such extra work.*
If the subsequent agreement affects only certain parts or provisions of
the original contract, expressly or impliedly leaving the original contract in
«,11 other respects to stand, it must be constructed upon the basis of and in
reference to the original contract.*
573. Changes which Modify or Extinguish the Original Contract. — If two
independent contracts have been made at different times with regard to the
«ame thing, or to perform the same work, and at different prices, the second
agreement will hold and extinguish the first one.' A new contract may be
considered a condonation of old injuries, unless, at the time of making the
new contract, the contractor insisted upon his adverse claims.'' If the
terms of the latter agreement are inconsistent with those of the former it
will be construed to discharge the prior contract.^
A contract to complete a building by a certain day may be so modified
and mixed up with a subsequent agreement for extras as to render it impos-
sible to complete it within the time appointed, in which case it may operate
as a waiver and discharge of the original agreement as to the time of comple-
tion so that no penalties could be claimed for the delay.' For delay caused
' Emden's Law of Building, etc., 324. Y. 546; Hutchinson v. Cullum, 23 Ala.
und Englifih cases cited 622.
2Chica,2:o & Gt. E. R. Co. v. Vosbiirgh, « Howard v. W. & S. R. Co. (Md.), 1
45 111. 311; Eiirenmn v. Posey Co., 82 Ind. Gill 311; accord, Memphis, etc., R. Co. v.
413; Norton i) Browne, 89 Ind. 333. Wilcox. 48 Pa. St. 161.
3 Koon V Greonman. 7 Wend. 121. ■> M'Intosh v. Midland Cos. Ry. Co., 3
4 Chicago & Gt. E. Ry. Co. ?). Vosburgh, Rv. Cas. 780.
45 111. 311 [1867]; see also Hummer r. "s Patmore v. Colburn, 1 C. M. t% R 65;
Lockwood. 3 G. Gr. 90; McMaster v. The 28 Amer. & Eng. Ency. Law 538, 3 Amer.
Slate. 108 N. Y. 542; Murphy d. United' & Eng. Ency. hfiw 891; and see LnSerty v.
States, 13 Ct. of CI. 372; Merchants' Exch. Jelley, 22 Ind 471.
Co. V. United States, 15 Ct. of CI. 270; » thornhill v. Neats. 8 C. B. (N. S.) 831.
Griffin i). Miner, 54 K Y. Super. Ct. 46; 2 L. T. Rep. 539 [1860] ; Boody v. R. &B.
McCormick v. Connolly, 2 Bay (S. C.) R. Co., 24 Vf. 660; Jone^ v. St. Johns
401. ' Coll.L.R. 6 Q. B. 115; Ellis tJ. Hamlin, 3
5 Leake's Digest of the Law of Contracts, Taunt. 52; Robsoa U.Godfrey, Holt's N. P.
788-9; accord, McSorleyi). Prague, 137 N. Cas. 236.
496 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE [§ 574-
by verbal changes in the plan by the owner the contractor is not responsible^
even though the contract requires all changes to be in writing/ If th&
changes are so marked that the original contract can be hardly recognized,
it may be regarded as abandoned and the contractor may recover the rea-
sonable value of his work and materials.'
Whether the new contract is a substitute for the old one and operates as^
a rescission or discharge of it, is a question of intention of the parties and is
to be ascertained from their correspondence, conduct, and declarations.*
When it is evident from an inspection of the two contracts that the parties-
intended that the subsequent contract should be supplemental to the orig-
inal contract, it will not supersede the latter except in so far as the new ona
is inconsistent with the original agreement.* Therefore if a written contract
for construction work has been materially modified by a subsequent parol
agreement, a decision by the engineer who was made the final arbiter of dis-
putes between the parties cannot stand if he entirely ignores the parol agree-
ment.^
674. Original Contract Rescinded or Reduced to a Parol Agreement. —
The rescission of a written contract by a parol agreement requires clear and
positive proof," and an agreement to rescind a contract has been held to imply
a total rescission.^ A mutual agreement between the parties to make cer-
tain alterations in a contract cannot in itself be regarded as an agreement
to rescind the entire contract, for that would be manifestly contrary to the-
intention of the parties as usually expressed upon construction work. How-
ever, a material modification of a written contract by a subsequent parol
agreement will reduce the whole transaction to a simple parol agreement,
consisting of the new terms agreed upon and what remains unchanged of
the original contract.* If the original contract under seal and subsequent
written [parol] contract not under seal relative to the same subject-matter
cannot be executed together, then the whole contract becomes parol." If
no provision for an extension of time of the completion of works on account
of additions and changes is made in the original contract, the mere making
of a parol agreement to extend the time in consideration of such changes
' Focht v Rosenbanm. 176 Pa. St. 14 Eq. 237; Rockcliffe v. Pearce. 1 F. & F.
ri896l ; and see Van Bnskivk v. Stow, 42 800.
Barb 9- Bimbauer v. Gleason, 48 Hun 'Thompson v. Lyons, 54 K T. Super.
614; Adams ij. Cosby. 48 Ind. 153. ^h}?^ w n i,- v> , n t t^ , n
2 Pepper d Bnrland Peake 103; Aust'n « Carr v. Wallachian Pet. Co., L. R 1 C
'n. Koalin^r, 3 W. R. 288; Ford v. Smith. 25 P. 636; Malonej. Phil. & R^R Co (Pa ),
Ga. 675- Smith v. Cop, 2 Hilt. 365; McKiu- 27 Atl. Rep. 756; Lawall «. Rader 24 Pa
nev V Springer 3 Ind. 59. 8f- 283 [lS55]',and see De Boom v. Pneslly,
3 Rosters v. Ro ers, 139 Mass. 440; see 1 Cal. 206 «, r, o. ooo r^or^rri
Ford V Smith 25 Ga. 675. ^ Lawall v. Rnder, 24 Pa. St. 283 r<855];
4 Uhliff ^. Barnum (Neb ). 61 KW. Rep. Smith v. Smith. 45 Vt 433 [1 873] ; Vicary
749: semble, We^i Haven W. Co v. Red- 'd. Mocre, 2 Watts & S 45; Thornhil! c.
field 58 Conn 39 Neats, 8 C. B. (N. S.) 831; ond see Ell-
5 Malone v. Phil. & R. R. Co , 157 Pa. maker v. Ins. Co (Pa.), 6 Watts &S 439,
gt 430 and Howard v. W. & S. R. Co. 1 Gill (Md.>
• Falls V. Carpenter (N.C), 1 Dev. & B. 311.
§ 575.] CONTRACT STIPULATIONS. 497
has been held to reduce the entire contract to a simple agreement, npoit
which assumpsit will lie.* *
A change in a contract by which a slate roof is substituted for a shingle
roof at an additional cost of $35 has been held to reduce the contract, which
was under seal, to a simple agreement.'
Damages may be recovered for the breacli of such an agreement.' Such
an agreement to extend the time of completion should not be made at all if
it can be avoided, but the contractor is advised to do what seems to him the-
proper thing to do, which is, of course, to complete his contract as expedi-
tiously as is consistent with good work, within the terms of his contract. If
it seems necessary or advisable to extend the time of completion it should be
done in writing upon the contract and expressly incorporated into it as a
part and parcel of the same, the consideration recited, and the change
signed, sealed, and witnessed, so as to keep the contract a specialty and
equally binding with the original, but not until the consent of the surety has
been obtained.
While the making of alterations or additions in the work by the contrac-
tor will sustain a promise by the owner to extend the time of performance or
pay additional compensation, it will not when the contract provides for such
alterations and additions as the owner may direct.*
575. Alterations of Terms of Contract may Change Form of Action by
Contractor. — The change in the nature of the contract from a specialty in
writing and under seal to a simple instrument may change the form of
action by the contractor when he seeks to recover for his work on the job..
If the common-law rules of pleading prevail, and he brings an action of
covenant on the original contract, he cannot show the subsequent parol
agreement," and would not, therefore, recover for the extra work due to the
alterations. If he will recover for such extra work, loss of time, or delay, he
should not only declare upon the special or original contract, but his declara-
tion should be upon the general counts ; i.e., for work and labor furnished to
the owner at his request, and of which he has received the benefit." In some
courts compensation for the extra work niay be recovered under a qiiantuTn
meruit (the common counts) whether the written contract has been aban-
doned, or it has been fully executed, but the price named in the contract, so
1 DaegHiig v. Scliwartz. 80 111. 320; * Tinker®. Geraghty, 1 E. D. Suiith 687
Smitli v. Sinitli, 45 Vt. 433 [1873] ; hut see [1853].
Barclay v. Messenger, 43 L. J. Ch. 449; ^ pijinipg & c. C. Co. v. Seymour, 91 U.
and Haynes v. 2d Bap. Ch., 88 Mo. 285. S. 646 ; S'mUe, Elting «. Dayton, 17 N. Y.
2 Lawall V Rader, 24 Pa. St. 283. Supp 849.
'Hill v. Smith, 34 Vt. 535 ; and see Izard « Frecher v. Greeseka, 5 Iowa 472 ; Buch
V. Kimmel (Neb.), 41 N. W Rep 1068 v. Chapman, 2 G. Gr. 41; semble, Wright-
[1889] : Freeland v. Bacon, 7 N. Y. Supp. v. Wright. 1 Lilt. 179 [1822] ; Smith v
674; The B. & M. R. Co. o. Penny, 38 Smith, 45 Vt. 433 ; Daegling v. Schwartz,
Iowa 255 [1874]. 80111. 320 [1885].
^ * An excellent reason for having a clause in the contract providing that changes, ad--
ditious, and reductions shall not abrogate or vitiate the contract. — Ed.
498 ENOINEEBTNG AND ARCHITECTURAL JURISPRUDENCE. [§ 576.
far as it is applicable to the extra work done, will hold with regard to it,
unless a price was agreed upon at the time it was ordered/
Massachusetts practice would seem to indicate that the contractor must
sue upon the special contract if under seal, unless he has a right to avoid or
.rescind it. If the seal has been added without the contractor's authority, he
imay have an action on a quantum mer^iit if his abandonment can be justi-
fied.'' Another case holds that if the contract has been terminated the con-
tractor must show another engagement by the company,^ or that he was pre-
vented from completing his contract by the employer.* A Missouri case
holds that interference by the owner with the progress of the work done
under a covenant will not allow an action of assumpsit ; that the contrac-
tor cannot waive the contract and sue upon a quantum meruit,^ although
he may recover for extra work not embraced in the contract or for services
rendered independent of the contract.' When the action has been brought
xipon the contract instead of a quantu7n meruit, and all the proof has been
introduced without objection, showing the right of the contractor to recover,
the court may, if necessary, permit an amendment of the petition so that it
shall conform to the proof.'
A court of equity will not, ordinarily, decree the specific performance of
•a contract with variations, additions, or new terms made and incorporated
.into it by parol agreements and depending upon parol evidence to prove its
terms. ^
Contractors get into tight places, and they will go to the furthermost
limit to escape. They will delay the work, make excuses, bluff and blow,
a,nd complain bitterly to provoke retaliation or to induce the company to
some overt act of rescission. They will even refuse to proceed with the work
on some frivolous pretense. An engineer should at such times forbear taking
;any fatal step until every expedient has been exhausted. The rule should
he to keep the contract whole.
576. Effect of Changes and Alterations on Liability of Surety. — In
rassenting to changes and parol modifications of construction contracts it is
\well to consider carefully the effect that such changes may have upon the
surety of the contractor. If the new agreement be inconsistent with the
original and discharge it, or if it is a material alteration, the surety will be
discharged. Not being a party to the new agreement, he is not bound by it,
and he is not liable under the old agreement, for it has been discharged."
1 Mather v. Butler, 28 Iowa 253 ; semhle. Chambers v. King, 8 Mo. 517 ; and see also
Xawall V. Rader. 24 Pa St. 283 [1855
iiherwin v. Salpaucrh. 24 Vt. 347 [1852
Aiken a Bloodgood, 12 Ala. 221 [1847^
Irwiu V. Schultz, 46 Pa. St. 74 [1863].
Lebeanue v. Hill, 1 Mo. 42 ; Little v.
Mercer, 9 Mo. 216.
6 Lloyd's Law of Building. 179, 180. and
cases cited.
2 Cook «. Gray, 133 Mass. 106 ; Simmons ' Homan v. Steele, 18 Neb. 652 [1886].
t). Lawrence, 133 Miiss. 298; Ford v. ^^j^itaker ??. Vanschoiack, 5 Oreg. 113
Burchard. 130 Mass. 424 [1873] ; see also 22 Amer. & Eng. Ency.
'^ Hyland v. Giddings, 11 Gray 232. Law 1062.
4 Basset v. Sandborn, 9 Cash. 58. « 3 Amer. & Eng. Ency. Law 893.
» Clendeunen ,v. Paulset, 3 Mo. 230 ;
§ 07/.J CONTRACT STIPULATIONS. 499
The surety should be consulted in regard to any proposed changes and his
coriseiit obtained; for if he is not, he will no longer be bound, and tlie court
will not inquire whether it is, or is not, to his injury/ * An agreement sub-
sequent to the execution of a contract to refer questions of damages for
nonperformance and delay to arbitration is not binding upon the con-
tractor's surety.*
A reservation of the right to make changes in the plans of a building
implies, as against the surety, that the changes shall be such as might have
reasonably been contemplated by the parties when making the contract." f
577. Effect of Changes Ordered under a Clause Reserving the Right
to Make Alterations. — When the contract provides that alterations directed
by the engineer shall be made as directed, such alterations are within the
jurisdiction of the engineer. Ordinary alterations directed will not abro-
gate the contract or substitute a new one. Work done after the job has
-been taken off the contractor's hands has been held not to have been done
under the contract, and payment might be recovered in assumpsit.*
Whether or not both parties in making alterations and changes and
neglecting to insist on the strict performance of the terms of their contract
intended to set aside the contract and disregard its provisions is a question
for the jury ; and when such a question is at issue, evidence may properly
be admitted to show that alterations and changes were made even though
the contract provided for such changes. In a case decided, evidence was
admitted that the foundation walls were carried to a much greater depth
than intended in the plans, or called for in the specifications and con-
tract, and under the direction of the owner's authorized agent and under a
promise to pay for them; that granite instead of brick was used for build-
ing the basement walls; that North Haven brick instead of Springfield brick
were used in construction walls; that granite instead of brownstone trim-
mings were used throughout the building, and that slate instead of galvan-
ized iron was used upon portions of the roof. The contract provided for
changes and extras, and required that the foundations should be dug down
until a proper and suitable bed should be reached; also that no claim should
be made for extra work unless ordered in writing, and such claims were^
rendered in writing before the next ensuing payment. The court held that
to show an abandonment of the contract the contractor must show that the
contract was departed from, and also that the contract was not followed in
•making such departure; that the first step was to show the deviation, and
the next to show it was not made under the contract; that the first was
» 3 Amer &En^^. Ency. Law 892; Judah Rep. 17; and see Dorsev V. McGee (Neb.);
V. Zimmerman. 22 Ind. 388. 46 N. W. Rep. 1018 [1890].
« Cooke V. Odd Fellows, 1 N. Y. Siipp. * 2 Wood's Law of Railroads 998; citing
498 [1888] O'Reilly v. Kerns, 52 Pa. St. 214.
3 O'Rourke v. Burke (Neb.). 63 N. W.
* See Sees. 20-22, aupra. \ See Sec. 20, Chap. L, supra.
500 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 577.
ftdmissible as a preliminary step or as laying the foundation for the second;
that the number of such changes and their extent was a circumstance that
the jury miglit properly consider, and that the contract might properly be
found to have been abandoned because: 1. All the various alterations were
made without any requirement of the architect as required by contract, but
were all done at the request of the owner. 2. The parties wholly ignored
the paragraph that no extra work should be recognized unless a statement
of it were rendered to the architect. 3. That the parties ignored the pro-
visions, as to date and penalty for completion, and that as to an allowance of
additional time, but acted upon mutual agreements. 4. That they employed
outside parties to do portions of the work which was included in the con-
tract. 5. That payments were not made according to terms of contract,
nor upon the certificate of architect as required.^ This case shows the con-
sequences of lax enforcement of contract and the results of indulgences in
business affairs.
When a contractor agrees that alterations and additions may be made
in work under a contract it must be taken that only such changes as may
•ordinarily arise in such work are contemplated. It cannot be presumed,
unless expressly stated that a contract to erect a structure can be construed
.as a contract to build the foundations only, or that a reservation that altera-
tions and omissions may be made, or that in case the quantities of the work
estimated shall be increased or diminished, the work shall be performed at
the contract prices and no claim for damages or prospective profits shall be
made in either case, authorizes the entire abrogation and repudiation of the
contract.' Nor does a provision to the effect that in case the work is sus-
pended, no claim for prospective profits or for work not done should be
allowed, but that the contractor should be allowed to complete the work
when it was resumed, authorize or contemplate the annulment of the con-
tract. Such a stipulation will not protect the owner from liability for pros-
pective profits when the contractor has been denied the right to complete
the work when it was resumed.'
So it has been held that a clause providing that ." all loss or damage
arising out of the nature of the work aforesaid or from action of the ele-
ments or from any unforeseen obstructions or any difficulties that may be
iencountered in the prosecution of the work, also for any and all expenses
ivhich may be incurred in consequence of the temporary suspension of any
part of the work, shall be incurred by the contractor without extra charge
to the city," did not apply to the obstructions and difficulties due to or
created by changing the place of crossing a river, resulting from increased
depth of water and quicksand." A further provision that t'he contractor
^ O'Keefe v. St. Francis Church, 59 ^ Donolds v. The State, supra.
€onn. 551 [1890]. ^Woodi). Fort Wayne, 119 U. S. 312
2 Donolds V. The State, 89 N. Y. 36 [18861.
[1882]; s. c, 84N. Y. 361.
§577.] CONTRACT STIPULATIONS. 601
shall have no claim upon the city for any delay in delivery of pipes or other
materials from the manufacturers was held not to apply to delay and ex-
pense of altering defective pipe-castings furnished by the city, the defects
iv'hich could not be discovered until put in service.'
A comparatively recent case in Illinois held that where changes, altera-
tions, and additions were more than such as were incidental to the complete
execution of the work described in the plans and specifications and of minor
and trifling importance, that the contractor was not bound to accept such
compensation as the engineer might fix. That any material departure from
such plans and specifications, resulting in a new and substantially different
undertaking, could not be regarded as within the provision for alterations
and additions, and that the contractor, in case of such material and sub-
stantial changes, was not limited or governed by the original contract as to
his compensation for the work.^ The departure from the original contract
must have been so general as to have destroyed the connection between the
work done and the contract,^ or, as a Vermont case states the rule, "if the
terms of the original contract do not appear to apply to the new work,
which is beyond that originally contemplated by the parties, then the work
may be regarded and treated as extra work, and as such recovered for by
the contractor; but if the evident intention of the parties was to include
such work within the contract, and its terms are applicable, then no extra
compensation can be recovered/
The question as to what changes are permissible when a general author-
ity has been reserved to make changes was pretty fully discussed in the
New York courts some years ago.^ The court rendered the opinion that
the state certainly had no right to omit entirely the construction of all or
any of the buildings. The buildings contracted for were a central building,
five connecting wards on each side, and the outbuildings. These were all to
be built. The size and height of them was fixed and the material to be put
in was determined. The gist of the court^s opinion may be summed up in
the language of the court. "The general character of the buildings could
not be changed so that the buildings would not be the same contracted for;
if it could be, then the public letting in such case would not be a useful,
but an idle ceremony. Under such a reservation could a building planned for
five stories be reduced to two? Could a stone building let to a stone-mason
be changed to wood or brick ? Could the five connecting wards be reduced
to two or three or four? We are clear that authority for such extensive
changes could not be found in such language. If the state could change
to brick walls with sandstone trimmings, then it could change to walls
made wholly of brick, and thus there would be no stone to cut, and the
'Wood V. Fort Wayne. 119 U. 8. 312 R Co., 29 Pa. St. 82.
{1886]. "Hummer v. Lockwood. 3 G Gr. 90.
•' Tlie County of Cook v. Harms, 108 111. ■* Boody v. R. & B, R Co., 24 Vt. 660.
151 [1883], citing 115 111. 242 Mud 20 111. » McMaster ?). State, 108 N. Y. 542.
App. 74; and see McGran v. N. Lebanon
502 ENOINEElilNG AND AUCIUTEGTURAL JURISPRUDENCE. [§ 577.
stone-cutting contract would be entirely nullified. It is difficult, probably-
impossible, to draw in advance a precise line between what is authorized by
such a reservation, and what is not. It authorizes such changes as fre-
quently occur in the process of constructing buildings, in matters of taste,,,
arrangements, and details; but it does not authorize a change in the general
character of the building. If it does, a contract carefully entered into could
be mainly, if not entirely, frustrated. Under the contract, the contractors-
were required to own or purchase quarries and lease them or give control of
them to the state, and thus they were required to make considerable invest-
ments for the purpose of being able to furnish the stone. Can it be sup-
posed under such circumstances that the parties intended by the reserva-
tion in the second contract to authorize at the will of the state any change
that might substantially destroy the furnishing contract? Would buildings-
with a few superficial feet of sandstone facings, be the buildings in reference
to which the competitive bidding were invited and the contracts were let ?"
We think not, and that the contracts were broken by change from sandstone
to brick/' '
When the right to make additions or alterations has been reserved, as to-
add an additional story to a building, reason and equity require that the
owner should assert his right to make the changes so as to give the contractor
a reasonable time to complete the work within the time specified.^ The right
to make alterations, additions, and omissions has been held not to authorize
the owner to take work away from the contractor and to do it himself, but
that the '^omissions'' should be limited to things entirely left out of the
works [building].®
A provision giving an engineer power to direct in good faith any changes^
in the form or dimensions of the work is not a provision conferring-
authority to stop the work in an unfinished state and so arbitrarily annul
the contract.*
In a contract for the construction of a railroad which reserved the right
to alter the line or the gradients of the road without the allowance of any
extra compensation, if the engineer should consider such alterations neces-
sary or expedient, and it provided that all disputes in relation to the con-
struction of the contract should be settled by referees, it was iield that an?
allowance of extra compensation by the referees for alterations made, involv-
ing large increase of expense, did not transcend the authority of the referees.*'
Such a construction of a contract by referees is not re-examinable by a
court.
As a general rule it is well settled that deviations and changes in the
» McMaster v. The State of New York, ^ Shaver v. Muvdock, 36 Cal. 293.
108 N. Y. 542; s. c, 37 Alb. Law Jour. ■* Clark «. Mayor of New York. 4 N. Y.
295; see also Clark v. Mayor, 4 N. Y. 338, 338 [1850]; see also Jones v. Judd, 4 N. Y.
and Donolds v. State, 84 N. Y. 361. 411.
» Accord, Laiier v. Brown, 30 Barb. (N. ^ Porter v. B. B. R. Co., 33 Maine 53»
y.)416. [1851].
§ 578.] CONTRACT STIPULATIONS. 503
plans of a structure will not imply abrogation or abandonment, whether the
contract provides that such deviations and changes may be made or not.'
If a contractor intends to take exception to any alterations and additions
required of him, he should take his position distinctly and unequivocally."
578. Contractor's Rights are Frequently Preserved by Notices on His
Part. — The question as to just what a contractor is to do when a dispute
arises between him and the engineer or company, as to what work is or is
not within the contract, or as to how certain work shall be classified, executed,
or finished, is a most perplexing one.
The thing for a contractor to do, when asked to make changes or altera-
tions, or to do work that he considers outside of his contract and extra work,
is to quietly, but firmly, remonstrate with the engineer or officer of the com-
pany or city, and to refrain or avoid doing the work as long as possible. If
the company or its engineer insists that it is included in his contract, and it
is of enough importance or of sufficient magnitude to make much difference
to the contractor, he should refuse to do it without somebody assumes the
responsibility, after the manner required in the contract, to pay him for it
as an extra. The courts advise that when the owner is guilty of abroach of
his contract or demands the performance of what cannot properly be included
in the contract, that the contractor refuse to proceed with the work, or if
circumstances will permit, to complete what the contract certainly requires,
and to then demand a final certificate, and if refused to call upon the courts to
determine whether or not the work in dispute is called for by the contract.*
Contractors are frequently characterized as " troublesome customers,'^
"kickers," "cranks," "sharks," and "scamps," and sundry other epithets,
because they are always objecting, protesting, and complaining at what is
required of them. But it is submitted that the law encourages and requires
that same policy; for a contractor's right to recovery of ten depends upon his
having given notice to the company that he considers his rights invaded or
the contract requirements overstepped. Several instances have already been
cited, and the books contain many more.
A contractor should look out for his own interests without regard to the
epithets hurled at him or the comments bestowed, and when he feels his
rights invaded he should not hesitate to give proper notice of the fact.*
There may be, as is usually the case, other stipulations by which the
company or its engineer may have power to annul the contract and employ
^ Bozarth «. Dudley, 14 N. J. Law 304; berry, 24 111. 203; Sumner i>. Parker, 36 N.
see also McGran v. N. Lebanon R R. Co., H. 449.
29 Pa. St. 82; and! Mather v. Butler Co., ^ Western Union R. R. ■» Smith, 75 111.
28 Iowa 253; and Dorsey v. McGee, 30 496 [1874]; O'Brien & Clark «>. New York,
Neb. 657. 142 N. Y. 671 [1893]; Slusser, T. & Co. v
2 Weeks v. Robis, 42 N. H. 316; Evans t). City of B., 47 Iowa 300 [1877].
Montgomery, 50 Iowa 325; Carney v. New-
* See Sees. 373-375, 564-568, supra, where contractor is required to ask for a decision
of engineer, and 735, infra. ^
1^04 ENOINEERING AND ABCHITECTURAL JURISPRUDENCE. [§ 579.
other contractors to complete the work, in which case the contractor may
find himself in a precarious position; or by the terms of the contract the
determination of such questions may have been left exclusively and finally to
the judgment of the engineer. In the one case the contractor must choose
between the loss of his pay for extra work and the loss of his contract, with
perhaps what remains due on the job, and in the other case it is a choice of
no pay for what he considers extra work and an expeus-ive action at law to
determine who is guilty of a breach of contract, and what really are the
duties and powers of an engineer in such a case. A contractor with experi-
ence will appreciate very well that while he is required to perform only what
the contract calls for, and that while the engineer's powers are limited to
those created by the contract, yet it is much easier and more politic to
■comply with the engineer's orders as to all minor matters, than to question
the extent of his powers. When an engineer has been clothed with power
to declare a contract forfeited, if the work is not prosecuted with all possible
dispatch, a contractor may not delay long to determine the duties or powers
of the engineer, or to ascertain just what the contract requires without
endangering the loss of his job. * Under such circumstances a contractor
would not fail to seek good counsel and to place the contract and facts before
a competent authority before determining what he should do.
A good illustration is afforded in a case of railroad construction, by the
<iontract for which, the company were to furnish the iron and materials
necessary to finish the work before the freezing of the ground. The com-
pany neglected to furnish the materials in time and the contractor had to
complete the work in cold weather, and on frozen ground, much to his
detriment and extra cost, and it was held that when the company failed to
provide the materials in time, that the contractor might have abandoned the
work and have refused to proceed with it further; but that if when the mate-
rials were furnished he proceeded and completed the work without objection,
-and without insisting on having a new contract, it should be presumed that
he proceeded under the original contract, which would furnish the measure
of his compensation, and that he could not recover extra pay by showing
that the work was worth more on account of the state of the weather, or be- ,
oause the ground was frozen.* It seems that if the contractor had refused
to do the work, or even given notice that he would complete the work, but
not as a part of his contract, nor at the prices named therein, that the court
would have allowed him to recover for the extra work required in conse-
■quence of the delay.'
579. Contractor should Make His Claim for Extras when the Addition or
Alteration is Required. f — If he does perform the work required of him, or
» Western Union R. R. v. Smith, 75 111. ' Skisser T. & Co. v. City of B,, 47 Iowa
496 [1874]. 300 [1877].
* See Sees. 392-395, «wp?'a, and 591-599, infra. f See Sec. 689, infra.
§ 580.] CONTRACT stipulations: 605
does make the alterations or additions ordered, or does accept payment
according to the estimate or classification rendered, he will at least demand
[request] extra compensation, and if it is refused, will enter a protest or
give notice of his claim for extra pay for such extra work. The acceptance
of money offered in payment of work and materials under protest that it is
not enough, and without giving any release or discharge, is not a final set-
tlement, and does not preclude the contractor from suing for and recovering
any balance that he may be able to show is due him.'
When a change in contract work is ordered amid circumstances which
imply or warrant the belief that no additional expense will result from the
change, it is the duty of the contractor to expressly notify the other party
that he cannot make the change for the contract price.' If he does proceed
with work which he considers extra work, without such notice,, or asking
terms, or making a new contract with respect thereto, it will be good evi-
dence that he understood the work to be embraced in his original contract,'
especially when the change was made at his request and for his benefit.*
He will be taken to have done it under his contract, and cannot complain
that the work was more difficult and expensive, or took a longer time; nor
can he recover damages for delays occasioned by such changes or additions.'
If he has neglected to enter a protest or to claim extra compensation at the
time the changes were ordered or made, he cannot recover as for extra work
on account of such changes." The contractor cannot recover for extra labor
expended or materials used in unsuccessfully trying to bring the works to a
satisfactory condition, though so expended and used after a time when he
would have been justified in treating the contract as performed, and leaving
the work.'
580. Contractor may be Held to the Terms Acquiesced In or Adopted.
— If the contractor has submitted to changes in the amount and location of
the work, and has received and receipted for monthly payments at the prices
fixed by the contract, and as payments under the contract, he will be taken
to have waived the change.^ For if he continues the work under the con-
1 Western Union R. Co. «. Smith, 75 111. Rep. 278; Murtine v. Nelson, 51 111. 422;
496 [1874]. Abbott v. Gatcb, 13 Md. 314; and see
2 Gibbons v United States, 15 Ct. of Murphy v United States, 13 Ct. of CI.
Claims 174; Bowe v. United States. 42 372, which held that, notwithstanding the
Fed, Rep. 761 [1890]; Lovelock v. King, 1 contractor had notified the government's
Moody & R. 60. agent that the cost of extra work ordered
3 The Western Union R. Co. v. Smith, 75 by him would be $1350, that he could re-
111 496 [1874]; Trustees d. Piatt, 5 Brad w. cover only the actual cost ($160) and a
<I11 ) 567; Waldron v. American Wringer reasonable profit (10 per cent.). See also
€o (Mass.). 43 N. E. Rep. 81. Britney v. Bolding, 28 Miss. 53; and see
*SoMicer ■». Bd. of Commrs., 117 Ind. McCormick v. Connolly, 2 Bav (S. C.)401;
573 [1888]. Bowe v. United States, 42 Fed. Rep. 761
s Louisville & N. R. Co. v. Hollerbach, [1890]; Slusser T. Co. v. City of B., 47
3 West. Rep. 364. Iowa 300 [1877].
« Price V. Kearney C. & W. S. Co., 29 ■» Gubbins v. Lautenschlager (C. C), 74
Neb. 33 [1H901: accord, Foy v. Board of Fed. Rep. 160
Commrs. (K C). 15 S. E. Rep. 944; Mc- '^McGrann v. N. Lebanon R. Co , 29 Pa.
I^amara v. Bd, of Commrs. (La.), 11 So. St. 82; McNamara v. Board of Commrs.
506 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 580.
tract, as will be presumed in the absence of any new or subsequent agree-
ment, its terms and prices will govern, for the parties^ interpretation of a
contract, as shown by their acts in respect to it, when reasonable, will
govern.' * If a contractor has voluntarily furnished extra work and mate-
rials, knowing that the payment therefor depended upon the action of con-
gress, he cannot recover, though the extra work has improved and embel-
lished a government structure.*''
The practical meaning given by the contractor and owner to a contract
goes a great way sometimes to show that there was no misunderstanding or
mistake between them as to the terms of the contract or specifications. If
the parties to a contract have adopted a particular construction, and have
acquiesced in and done work under it according to that construction, for a
long time it should lead a court without hesitation to adopt that meaning as
the proper one."
If a contractor accepts certain rates or prices without complaint or pro-
test he cannot afterwards deny that they were the rates of his contract.*
If, when the inspector has rejected certain materials, the contractor pro-
cures other materials and continues with the work, he cannot subsequently
complain that the rejection of materials was wrongful. ^ When a contract
for making embankments failed to designate the place from which the
materials were to be taken, and the parties had adopted a construction of
the contract, it was held that they were concluded by it." So if a contract
is silent as to the time of payment, the construction that the parties put
upon it by their acts may become binding upon the parties.''
If during the performance of a written contract the contractor and owner
have put a practical construction upon it which is at variance with its literal
meaning, that construction will prevail over the language of the contract.*
It was so held when changes were made by mutual consent in the plan of a
sewer which formed part of the contract^ but without any agreement as to a
change in the contract price, that the contract price was the measure of
(La.), 11 So. Rep. 278; semhle, St. Louis B. McMillen v. Hopper (Sup), 44 N. Y. Supp.
& J. Co. V. St. Louis Brew. Ass'n (Mo.), 31 63.
S. W. Rep. 765. igiiipj^an v. Dist. of Columbia. 119 U.
'Vermont St. M. E. Church c. Brose, S. 148, 703; Price v. Kearney, etc., Co.
104 111. 206; Patterson v. Camden, 25 Mo. (Neb.), 45 K W. Rep. 252 [1890].
13; Wiiitehead v. Bank of P., 2 W. & S. ^ Montgomery r. New York (N. Y. App.),
172; Cliicago v. Sheldon, 7 Wall. 50; Garri- 45 N. E. Rep. 550.
son V. Nute, 87 111. 215; St. Louis G. L. « goody v. Rutland & B. R. R. Co., 24
Co. V. City of St. L., 46 Mo. 121; Bowe v. Vt. 660; s. c. 3 Blatch. U. S. C. C. 25; gee
United Stales. 42 Fed Rep. 761 [1890]; see also Chicago & Gt. E. R R. Co. «. Vos-
Evans u. McConnell (Iowa), 68 N. W. Rep'. burgh, 45 111. 311; Hosmer v. McDonald
790. (Wis ). 49 N. W. Rep. 115 [1891].
2 Merchants' Exch. Co. ■». United States, ''Barker v. Troy & Rutland R. Co., 27
15 Ct. of CI. 270. Vt. 766; Crown Coal «& Tow Co. «. Yoch
^Nickerson ®. Atchison. T. & S. F. R. Coal Min. Co.,57 111. App. 666.
Co , 17 Fed. Rep. 408 [1883]; Leavitt v. ^Di^i. of Columbia v. Gallaher, 124 U.
Windsor L. & I. Co., 54 Fed. Rep. 439; S. 505; Saunders v. Clark, 29 Cal. 299.
* See Sec. 125, supra.
^ 580.] CONTRACT STIPULATIONS. 507
^compensation. When the letter of the contract and specification do not
agree with the working plans or model furnished, and the work has been
•done under the direction of the engineer, according to the plan or model
or sample furnished, the practical construction which the parties have
adopted, and accor(^ing to which the work has been done, will prevail over
the literal meaning of the contract and specifications.* So if the parties
have attached to certain words or expressions a particular meaning in one
part of a contract, it must be presumed, nothing appearing to the contrary,
that the same meaning was intended wherever like words or expressions are
subsequently used.'
If the contractor has received the monthly estimates based upon a par-
ticular construction of his contract without objection, he will be held to
have acquiesced in that construction and be bound by it.' It was so held when
the contractor had acquiesced in a certain method of measurement adopted
by the engineer and upon which payments were based, and by which the
contractor received pay for excavations only, and no pay for the same earth
placed in embankments.* So when the law provides that eight hours shall
constitute a legal day's work, but permits overwork by agreement for an
extra compensation, if one accepts a position knowing that he will be
expected to work more than the statutory time, and continues work with-
out objection or giving notice of an intention to charge for the extra time,
his consent to his employer's requirements will be presumed, and he cannot
recover for the time in excess of eight hours a day during which he worked/*
In another case where the contractor undertook to excavate for a street to
an established grade, which grade was pointed out by the city engineer by
order of the city, and the depths to be excavated at different points were
given in feet and inches, and the contractor, relying on the representations
so made, entered into a contract and upon the work; and the grade was
afterwards during the progress of the work made much lower than was
represented and first established by the engineer, thereby requiring the
excavation of large quantities of rock and other hard material at a cost of
six times the contract price agreed upon — the court held that if after the
original grade-stakes were taken up and replaced at a .much lower grade
the contractor was directed to excavate to that lower grade, and he had pro-
ceeded with the work without objection, he was concluded from making
any claim in excess of the contract price per cubic yard; but that the con-
tractor, because of the mistake of the engineer, had the right to stop the
work at the depth indicated by the stakes as first set, and could recover
the contract price for the work he had done, and was under no legal obliga.
1 Dist of Columbia v. Gallagher, 124 U. Lebanon R. Co., 29 Pa. St. 82 [18571.
S. 505 [1888]. 4 Price v. Kearney C. & W. S. Co. (Neb.),
'SMunders v. Clark, 29 Cal 299. 45 N. W. Rep. 252 [1890].
"Kidwell V. The B. & O. R. Co., 11 s. Hgiphensteine ®. Harlig (Ind. App.), 31
Gratt. (Va.) 676 (1854]; McGrann v, North N. E. 845.
* See Sec. 144, supi^a, and Sec. 810, infra.
r
508 ENQINEERINa AND ARCHITECTURAL JURISPRUDENCE. [§ 58L
tion to proceed further, and that if he notified the city or its representutive
officers of the change and its consequent obstructions, and requested that
some action be taken in the premises, he should not be held as proceeding
with the work under the contract, but that the removal of the rock and
other material below the original grade was in the nature of extra work,,
which the contract did not contemplate and which the city had no right to
require the plaintiffs to do, and for which the plaintiffs were entitled to a
reasonable compensation/
When alterations and additions are made in and to a written contract
the contract will be held to exist and be binding as far as it can be fol-
lowed;'* but if the alteration of the contract is material, and is made with-
out the knowledge or consent of the surety, it will release him from his
obligations/ f If the changes are material and of considerable importance,
and no intention has been shown to abandon or rescind the original contract,
it seems the contractor may recover for the work he has done, but at the
contract prices ;* or if the change ordered is one which must necessarily
cause increased expense, no such protest, notice, or new agreement is neces-
sary to entitle the contractor to recover/
681. Owner may Waive his Rights by Remaining Silent and Not
Objecting. — In the same way the owner may lose his claim for damages for
delay in the completion of a building caused by changes in plans and other
circumstances if he has known from day to day what has taken place and
has made no objection to the delay.' % If by the terms of the contract, piles
for a dam were to be driven to a specified depth for a fixed price, and they
were driven to a much less depth by direction of the engineer — i. e., the
owner required and accepted a less amount of work than that specified, and
without a new agreement — he is not entitled to a rebate in consequence, but
the contractor may recover the full contract price. ''
582. Work made More Onerous by Alterations or the Profit-paying
Portion Omitted. — The most perplexing cases, and those that have wrought
great hardships and injustice to contractors and builders, are those in which
extra work has been caused by alterations and changes by which the work
has been increased, in quantity, or, if not made greater, it has been made
more difficult, or the more profitable and easier portion of it omitted. When
^ Shisser T. ife Co. -». City of B., 47 Iowa Bartlett v. Stanchfield. 148 Mass 394;
SOO [1877]. Flynn v. Des Moines, etc.,R Co , 63 Iowa
2 McKinney «. Springer, 3 Ind. 59. 491, and cases ciUd; Thomas 'c. Fleury, 26
3 Judah iJ. Zimmerman. 23 Ind. 388. N. Y. 26 [1862]; McLeod v. Genius, Li
4 McGnmn «. N. Lebanonll. Co., 29Pa. Neb. 1; McFadden v. Odonnell. 18 Cal.
St 82. 160; Gallagher v. Nichols. 60 N. Y. 438;
•> Gibbons «. United States, 15 Ct. of CI. Morrison v. Lovejoy, 6 Minn. 319.
174 [1879]. ' Kingsley r Brooklyn. 78 N. Y. 200
'Anderson <n. Meislahn, 12 Daly 150 and see Smith v. Corn, 23 N.Y. Supp 326.
[1883]; Meyer v. Berlandini, 53 Minn. 59;
* See Sees. 571-576. swpi-a. f ^ Sees. 20-22 and 576, «?^;)m-
X See Sees. 294, 413, supra, and 701, 726, infra.
§ .:83.] CONTRACT STIPULATIONS, 609
such changes have been made the question whether or not the contractor is
entitled to extra compensation is often a difficult problem. The cases are
numerous, and are difficult to reconcile. The disposition of the courts may
be best shown by the cases decided. Loss of profits from changes made in
good faith according to the terms of the contract fall upon contractor, and
the omission of the most profit-paying part of a job is no excuse for the
contractor's quitting.
Under a contract for the excavation of ground for the erection thereon
. of an inclined plane it was provided that the work should be done
"according to the directions and under the supervision of the engineer in
charge of the construction of said incline. '^ The work was to be paid for
at a certain rate per cubic yard. It was held that the contractor had no
right of action when the planes of the incline were changed so as to leave no
earth excavation to be done, on account of the loss of possible profits there-
from, unless such excavation was directed by the engineer in charge.'
583. Instances where Changes have been Made. — It is well settled
that mere deviations and changes of plans which reasonably might have
been anticipated by the parties will not imply abrogation or abandonment
when the contract expressly provides that such deviations and changes may
be made.' Alterations so ordered are within the original contract." When
the contract provides that " it is understood that the owner and his architect
shall have the right and power to make any alterations, additions, or omis-
sions of work or materials herein specified or shown on the drawings, and
that they may find necessary during the progress of the building/' it has
been held that the owher or his architect may authorize the construction of
an additional stairway from the kitchen to a bedroom, the use of bronze
hardware in the place of No. 1 hardware, as specified, and change the loca-
tion of the cistern." *
In some cases changes and alterations, on a more extensive scale, have
been sustained as permissible without vitiating or destroying the contract.
Thus, under a contract for the construction of a waterworks reservoir,
changes by which the area of the reservo-ir was nearly doubled, by which the
sum was reduced 1248,000, the omission of an intermediate dam by which a
saving of $230,000 was eifected, and a net decrease of $153,000, were held
not to impair or affect the rights of the parties in the absence of proof that
the changes were due to corruption or bad motives.* Under a written con-
tract for the regulating and grading of real property, which contained a
^ Huckestein n. Nunnery Hill Incline P. [1866].
Co. (Pa. Sup.). 33 Atl. Rep. 1108; accord, * Dorsey v. McGee (Neb.), 46 N. W.
Beers I). N. Milwaukee Co. (Wis.), 67 N. Rep. 1018 [1890], and see same case as to
W. Rep. 936. wLat cl)anges and alterations will not re-
2 Bozarth v. Dudley (N. J. Law), 27 Alb. lease sureties.
L. J. 76 [1882], many cases cited. ^ Kingsley v. Brooklyn, 78 N. Y. 200.
* O'Rei'ly v. Kerns, 52 Pa. St. 214 The contractors were benefited in this case.
* See Sees. 20-22, and 576, supra.
510 ENGINEERING AND ABGHITEGTURAL JURI8PRUDENGE. [§ 583.
provision that the owner "reserves the right to decide, after the rock lias
been uncovered, whether lie will have it removed or not," entitles the owner
to decide that the rock shall not be removed by the present contractor, and
to thereafter have it removed by another contractor/ *
When a contract provides that alterations may be made by the engineer
in the form, dimensions, or materials of work, and that the engineer shall
in all cases determine the amount or quantity of the several kinds of work
and the compensation at the rates therein provided for, and, further, that
he shall in all cases decide every question which may or can arise relating to
the execution of the contract on the part of the contractor, and that bis
estimate shall be final and conclusive," and under this contract the dimen-
sions are so changed as io reduce the amount of excavation and. deprive the
contractor of the easiest and most profitable part of his work, it is usually
held that he cannot recover more than the contract price because of this
change; that he had taken the hazard upon himself by the terms of the
contract.'' The court held that the contractor was bound by any alterations
made in pursuance of the agreement, and t/hat he could not recover more
than the contract price for the work done before the alteration, even though
it were more expensive and costly than the portion dispensed with by the
change of the plan/ Such a rule might inflict great hardship upon a con-
tractor, and would enable a company to contract for a large piece of work
at a comparatively low rate, and then omit the profit-paying portion of it,
and get the expensive part of it done at the cost and expense of the
contractor.
Decisions to the same effect are numerous, and the law seems fairly well
defined as against the recovery of the contractor for extra compensation.
Thus, under a contract for excavation, at a certain price per yard, which is
silent as to the depth to be excavated, a contractor cannot recover extra
^mpensation for excavating to a greater depth than was expected, unless
notice was given that the price would be increased on account of the greater
depth.* f Under a contract to build a sea-wall whose dimensions are speci-
fied, and by the terms of which the contractor is to be paid for the work by
the cubic yard, and the contract stated that the work "will contain
about 216,000 tons of stone and 285,000 cubic yards of earth," and only
119,000 tons of stone and 272,500 cubic yards of earth were required, it was
held that the contractor could recover only for the amount of material actu-
ally furnished.^ When by the contract the contractor was to erect the
depot buildings " after such plans and such dimensions as might be adopted
1 Riley v. Black, 16 N. Y. Supp. 206 71 ; Jones v. Woodbury, 11 B. Monroe
[1891]. (Ky.) 167 [1850] ; accord, Sullivan v. Pres-
2 Clark V. Mayor of New York, 4 N. Y. ident. etc., 122 N. Y. 389.
338 [1850]. 5 Hackett u. State (Cal.), 37 Pac. Rep.
» Clark V. The Mayor, supra. 156.
4 Ambler v. Phillips (Pa ), 19 All. Rep.
* But see Sec. 577, supra. f See Sec. 580, supra.
§ 584.] CONTRACT STIPULATIONS. 511
by the engineer," and the buildings required were larger than had been
represented by the engineer at the time the contract was signed, and their
<;ost thereby increased above the sums stated in the estimate, it was held
that the contractor could recover no extra compensation because of the
-changes. * To the same effect was another case of excavations. The con-
tract provided that changes might be made in the size of a dock. The
excavations were to be deposited inside the dock to a certain height, and the
balance in certain other places. It was held that the contractor must fill
Tip the enlarged dock to the height agreed upon, an extra price having been
-allowed for the addition wall, required per agreement ; and that no extra
compensation could be recovered for the extra materials so deposited."
On the other hand, it cannot be shown in reduction of damages for
stopping work or rescinding a contract, that work already done by the con-
tractor was less expensive than that which remained to be done.'
584. Owner's Liability for the Cost of Extra Work Caused by Circum-
stances Unforeseen and Unknown. — Under a contract "to erect certain
buildings, in conformity with drawings and specifications made by the ar-
chitect," in a good, workmanlike, and substantial manner, to the satisfaction,
^nd under the direction, of the architect, and the contract provided further
that the contractor must excavate to a depth of not less than ten feet, it
was held that labor required to excavate to a greater depth than the ten feet
because of the nature of the soil, which was unknown to the parties, was extra
work, for which he was entitled to additional compensation.* * Although the
contract provides that extra work, involved by any change of plan, shall be
paid for at the contract rate for work of its class at a certain price per lineal
foot, if the changes made require extra work of a much more difficult char-
acter than that required by the original plan, the contractor may recover
the actual increase of cost.* To the same effect is another case in which a
contractor agreed to build some bridges according to certain plans at a cer-
tain rate of compensation, and if required to make additions to the work at
the same rate, provided that no alterations should entail on the contractor
expense beyond the proportion of the balance of the work, and it was held
that the contractor was not required in making additions to do a class of
work more costly than that contemplated by the agreement.*
When it is provided in the specifications, which were not annexed to the
written contract, nor referred to in it, nor were themselves signed by the
parties, that only the cost value, in the absence of special agreement of extra
» Cannon v. Wildman, 28 Conn. 472. 149 [1883] ; see Gustaveson «. McGay. 13
'Boynton v. Lynn Gas Light Co., 124 Daly (N. Y.)423; and Miirphy «. United
Mass. 197. States, 13 Ct. of CI. 372.
3 Jones v. Judd, 4 N. Y. 412 [1850]. ^^ood v. City of Fort Wayne. 1:9 U.
Judges were equally divided in this S. 312 [1886].
opinion. ® Annapolis «& B. S. L R. Co. v. Rossi
* Anderson v. Meislahn (N. Y.), 12 Daly (Md.), 11 Atl. Rep. 820 [1^8«].
* See Sec. 569, supra, and 678, infra.
612 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 584^
work ordered in writing, could be demanded ; and the contract provided
further, that '* should the owner request any alterations, deviations, additions^
or omissions from the contract, he shall be at liberty to do so, and the same^
will be added to or deducted from the amount of the contract, as the case-
may be, by a fair and reasonable valuation," — it was held that the contnictor
could recover for the reasonable value of such extra work/ Such a clause
providing that any addition or omission from the contract shall be added or
deducted by a fair valuation, but shall in no wise affect the contract, pre-
vents a claim for extra work from being brought under the terms of the
contract ; but full value for such extra work may be recovered even though
the requirements of the contract have not been complied with, unless the
regular work has been done so negligently as to render the extra work
valueless.'' Although the contract provides that extra work is to be paid for
according to the schedule of prices fixed therein, yet for extra work of a
different -character from that specified the contractor may recover its rea-
sonable worth.'
If the limits of the work are defined, or are shown upon the plans by-
boundary or dividing lines, whatever is required outside or beyond such
limits has usually been regarded as extra work. It was so held when a.
brick mason was required to take down a wall to a point lower than was-
indicated on the plans, and rebuild the same. The court held that he could
recover for the reasonable value of such extra work.* Under a contract to-
furnish sand and pave a street, a contractor was allowed extra compensation
for extra quantity of sand required to bring the street to grade and rendered
necessary by the city having excavated too deep.^
The fact that the contract is *'to furnish all materials and labor for
plumbing" does not preclude a recovery by the contractor for extra work
caused by changes made by the owner in the plans and specifications;' and
when an architect is employed to prepare working drawings of a house hj
the owner, and the architect makes changes in the plans, and the owner
directs that the work done by the working drawings shall be altered to con^
form to the original plan, he must pay for the extra work required to make
such alterations.'
Where a contractor's bids are unbalanced so that his profits come from
one kind of work and not from another, the company cannot deprive him
of his profits by increasing the latter work and abandoning the former, if
there be a departure from the plans upon which his bids were made.® This
'Demarest v. Haide, 53 N. Y. Super. [I860]; see afoo O'Dea r. Winona, 41 Minn.
Ct. 398 [1885]. 424 [1889]; Riley v. Brooklyn. 56 Burb.
"Garnsey v. Rhodes (Sup.), 18 N. Y. (N. Y.) 559.
Supp. 484 [1892]. «Ca8sidv^. Fontham,14N. Y. Supp 151.
3 Elgin V. Joslyn (111.). 26 N. E. Rep. 'Giierin v. Rodwell, 8 Vr. (K J.) 71.
1090 [1890]. sRoettinger v. United States, 26 U. 8^
* Donlin v. Daeirlincr, 80 111. 608 [1875]. Ct. of CI. 391 [1891].
*> Messenger v. City of B., 21 N. Y. 196
§ 585.] CONTRACT STIPULATIONS. 513
was a change of work, increasing the stonework and diminishing the brush-
work.
When a bid for a building contract has been made and accepted solely
on the plans and specifications, and the contractors liave begun work, and
the detailed working plans afterwards furnished varied from the original
plans, involving much additional labor, and the contractors refused to con-
tinue the work at the contract price, and the owner employed others to do
the work at an increased compensation, and sued the contractor for the
dift'erence, the contractor is entitled to a counter-claim for the work he has
done, if there was a material variance between the original and the working
plans.'
585. Alterations and Additions an Excuse for Delay in Completing^
Works.* — If a contractor agree '^ to execute and complete certain works,
with such alterations and additions as may be required by the engineer, in
the same manner as if they had been originally comprised in the works of
the contract, and within the period limited for completion of the original
works, unless an extension of time be allowed in writing," etc., the contractor
is bound by his agreement.^ He has been held bound to complete his con-
tract within the time specified, or to pay the penalties imposed by the con-
tract, even though it involves an impossibility.^
If, however, the contractor has not expressly and unqualifiedly agreed to
complete the works, including all alteration, by a certain date, he will be
excused from a complete performance within the time named if the owner
has made changes which require a longer time, or which renders completion
within the time impossible."
In the absence of any provision to the contrary, additions or alterations
or work not covered by the contract, and which requires longer time to com-
plete, will excuse delay in completion.^ Therefore, if after a contract is
made for building a bridge by a given day, the owner of the bridge directs
the contractor to make additions or changes or to do work on the bridge,
not covered by the contract, which will require a longer time to complete the
bridge, the time necessary to do such extra work must be added to the con-
tract time allowed for the completion of the work.*
^Williams v. Boehau (Super, Ct.), 17 J. & S. 161; but see contra, Clement v,
N. Y. Supp. 484 [1892] ; and see Owens v. Schuylkill River E. S. R. Co.. 19 Atl.
Butler Co., 40 Iowa 190, where it was Rep. 274 and 276. change of grade by
found necessary to use coffer-dams, which ordinance,
was contrary to expectations. ^ Texas & St. Louis Ry. t. Ru-t. 19 Fed.
2 Jones?). St. John's College, L. R. 6 Q. Rep 239 [18831 ; Henderson Edge. Co. v.
B. 116 ; Tew v. TheNewbold School Bd., O'Connor. 88 Ky. 803 ; Baasen v. Baehr. 7
1 Cababe & Ellis 260 [1884]. Wis. 517 [1859] ; Thomas v. Fleurv. 26 N.
=* Jones V. St. John's College, supra. Y. 26 [1862] ; Huckstein v K<lly,"l52 Pa.
■^Westwoodt). Secretary of India, 11 W. St. 681 ; a7id see Sweney «. Davidson, 68'
Rep. 261 ; Texas, ftc. R'. Co. v. Rust, 19 Iowa 386 ; and White «. School Dist. (Pa.),
Fed. Rep. 239, 29 Amer. i&; Eng. Ency. 28 Atl. Rep. 186.
La vv 921-2 ; and see Thornhill ?). Neats 8 "Texas & St L. Ry. Co. v. Rust, 19
C. B..(isr. S.) 831 ; Palmer v. Stockwell. 9 Fed. Rep. 239 [1883].
Gray (Ma s ) 237 ; Alger v. Vandevpoel, 84
*See Sees. 321-3:^6, 573, supra, and 670 and 689 infra.
514 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 686,
A contract by a builder that he should and would, on or before a certain
-day, well and substantially erect, build, and completely finish a structure
according to specifications and dimensions, also contained a covenant that in
case **the building committee or owner shall direct any more work to be
done than is mentioned, that he will pay the builder so much money as such
work shall be worth upon a reasonable valuation/' were held independent
covenants that did not restrict the completion of the extra work to the day
named in the contract, and that the contractor could recover for extra work,
though done after the time stipulated for completion ; time in relation to
extra work not being regarded as essence of the agreement.*
When the work and materials have been increased so that more time is
required for completion than the contract allows, the obligation thereafter
is to finish the job within a reasonable time.'*
586. More Expensive Material Ordered and Furnished than the Contract
Required. — Contractors must take notice of the extent of the authority con-
ferred by law upon a person acting in an official capacity, and the rule
applies in such a case that ignorance of the law furnishes no excuse for any
mistake or wrongful act. Under a contract which, after describing the
dimensions of materials and the price to be paid, provided that no departure
should be made from the conditions without the written consent of the
secretary of th6 treasury, a refusal by the engineer to receive stone which
are within the description of the contract, and a demand for better and more
expensive materials by him,'do not entitle the contractor to recover any
extra compensation. He was bound to take notice that the engineer had no
power to vary the contract, and is only entitled to recover according to its
terms.'
The mere fact that the contractor has continued to work on a sewer after
it has been shortened by an authorized action of the board of public works
is not a waiver of the terms of his contract with a city to construct a sewer
of a certain length, nor can he be said to have accepted a modified form of
his contract.* A shortening of the length of 176 feet in a sewer was held
not a reasonable change.
687. Extra Work Occasioned by Engineer's Mistakes. \ — When extra work
is the result of the engineers mistakes or errors in his lines and levels, and
the contractor is required by his contract to follow the engineer's directions
and instructions, as is usually the case, the company who employs the engi-
neer should pay for it. It has been so held ; ^ and it seems he is not con-
1 Hamburg v. McCahan, 3 Gill (Md.), 314 v. United States, 15 Ct. of CI. 270.
[1845] * Markey v. Milwaukee (Wis.), 45 N. W.
2 Gr( en v. Ha'nes, 1 Hilt. (N. Y.) 254. Rep. 28 [1890].
3Hnwkins-w. United Stages, 96 U. S. 689 ^ geymour v. Long Dock Co., 5 C. E.
[1877] ; see also Kinsley ?). Cbarnley, 33 Green 396.
111. App. 553 , and Merchants' Excli. Co.
* See Sees. 300-326, supra. . f See Sec. 435, supra.
§587.] CONTBACT STIPULATIONS. - 515
fined to the rate provided in his contract for similar work.' * If the work
is to be done according to certain plans and specifications prepared by an
architect named, and under his supervision and control and to his satisfac-
tion, and a mistake is discovered in the plans and specifications by reason of
which changes are necessary at an increased expense, which are made by the
direction of the architect in order to enable the contractor to complete his
contract, the owner will be liable for the extra cost of such changes to the
contractor, although as between the owner and architect the latter would
probably be liable.'^ When earthworks were to be paid for according to the
contents of the embankment at a price per cubic yard, the contractor having
shown the quantity of dirt hauled and placed upon the embankment, which
was greatly in excess of the engineer's estimate, the city having claimed that
much of the dirt slid off and sunk, and was no part of the embankment, and
not having made any estimate of the amount that was so wasted, the court
held that the contractor might recover the amount of earth as estimated
from the borrow-pits ; that if the city engineer could form no estimate of
the amount of materials so wasted that the city ought to lose it and not the
contractor.^ Labor necessary, to remove dangerous rock outside of the lines
and limits, of a tunnel, or to remove materials that have fallen from the
roof, furnished under the express direction of the engineer, and not i-esulting
from the carelessness or oversight of the contractor or his workmen, has
been held to be extra work, notwithstanding a clause to the effect "that if in
any event, or from any oversight or other cause, the contractor shall excavate
any greater quantity or quantities than by his agreement he has undertaken,
without the written consent, etc.," he shall not recover therefor. This
clause was construed to mean that in any case, if the contractor by over-
sight, neglecting the direction* of the engineer, or without them or other
like cause, makes a greater excavation than is called for by the contract, he
shall bear the loss. The contractor was obliged by his contract to follow the
lines, levels, and directions of the engineer. The court adopted the rule
that where work was necessary to the prosecution of the undertaking it
should be allowed as extra work if outside the contract."
A different rule has since been adopted under a provision " that the
form and area of the cross-section of the tunnel excavation at any place
shall be sujch as the engineer may determine, and according to the lines
and levels determined by the engineer, and that any excavation beyond
such lines shall be filled up by the contractor at his own expense, and
' Mulholland v. Mayor, 113 N. Y. 631 Supp. 8.; aZs<7 Guerinc. Rodwell. 8 Vroom
[1889]. 71 ; and Condon v. Jersey City, 14 Vrooin
^Erskine ij. Johnson (Neb.). 36 N. W. (N. J.) 453.
Rep. 510 [1888] ; see also Hurley v Brook- ^ Hend rson v. City of Louisville (Ky.),
lyu, 8 N. Y. Supp. 98. where a clerk and 4 S. W. Rep. 187 [1887].
inspector made the mistake ; and s-e Geiio- ^ Seymour «. The Long Dock Co. , 80 N..
vese r. Third Ave. R. Co. (Sup.), 43 N. Y. J. Eq. 396 [1869].
* See Sec. 435, swpra.
'516 ENaiNEERINO AND ATtCEITECTURAL JURISPRUDENCE. [§ 588c
that no payment shall be made for any excavation outside of the cross-
section determined by the engineer, but all loose or shaky rock must be
removed/' Under this clause it was held that the contractor was not en-
titled to any pay for excavations beyond [outside of] the cross-sections
established by the engineer, notwithstanding the fact, that by the methods
of excavation adopted some rock outside the cross-section would have to be
removed, and that the parties knew this when the contract was made. The
contractor was allowed for excavating only to the outside of the brick lining
of the tunnel/
Under a contract to build a bridge according to specifications drawn up
loy the engineer of the employer, which, after proceeding with the works,
"were found to be impracticable, it was held that the contract was made
on both sides upon the assumed practicability of the specifications, and that
the contractor could not charge the employer with an implied warranty that
the works were practicable, in order to claim the expenses incurred in attempt-
ing to build according to the specifications/ *
A city, it seems, is not liable for injuries or expense caused by the negli-
.gence or mistakes of its city engineer in the performance of duties imposed
hy law upon him/ f
588. Provision that Estimates are Approximate Only, and that Proprie-
tprs shall not be Responsible for Inaccuracies.
Clause : " It is expressly understood and mutually agreed by the par-
ties hereto that the quantities of the various classes of work to be done
and materials to be furnished under this agreement, which have been
estimated as stated in the advertisement (attached hereto), are approxi-
mate, and only for the purpose of ' comparing, on a uniform basis, the
bids offered for the work under this contract; and the contractor fur-
ther agrees that neither the parties of the first part, nor the commis-
sioners, or any of them, are to be held responsible that any of the said
estimated quantities shall be found even approximately correct in the
eonstruction of the work; and that the said part.. . of the second part will
make no claim for anticipated profits, or for loss of profit, because of a
difference between the quantities of the various classes of work actually
done, or of materials actually delivered, and the estimated quantities
stated in the bids; that if any error, omission, or misstatement shall be
discovered in the said quantities, the same shall not vitiate this contract
or release the contractors from the execution and completion of the
■whole or any part of the works comprised in this contract to the satis-
faction of the engineer, and in accordance with the specifications, and
the plans herein mentioned, at the prices herein agreed upon and fixed
therefor, or excuse them from any of the obligations or liabilities there-
under, or entitle him [them] to any damages or compensation otherwise
than may be provided for in this contract, except for such extra work
« O'Brien v Mayor, 15 N. Y. Siipp. 520 « Thorn v. City of London. L. R. 1 App.
[1891], 19 N. Y. Supp. 793, 139 N. Y. 543; Cas. 112.
accord, McEvven v. Nashville (Tenn.), 36 ^ Sievers v. San Francisco (Cal.) 47 Pac
8. W. Rep. 968. Rep. 687.
*8ee Sees, k 36-247, supra. \8ee Sec. 858, infra.
§ 589.] CONTRACT STIPULATIONS. 517
as may be required, for tlie performance of which written orders must
be given and received as hereinbefore specified.*'
589. Preliminary Estimate of "Work Incorrect. — Claims for extra work
•are sometimes made upon the ground that the preliminary estimates of the
work as to the quantities and character of the work were erroneous, largely
in excess of, and of a different kind from what they turned out to be.
When contractors have made such estimates the basis of their proposals for
work, it would seem reasonable that the company, who have made the rep-
resentations as to quantities, materials, and conditions, by or through their
engineer, should be responsible for their accuracy. If the contractor is put
to additional expense in consequence of erroneous estimates and representa-
tions, the company should in justice bear it.*
To avoid this it is customary to give, at the time the estimates are ex-
hibited or before the bids are made,* due notice that the estimates are only
tipproximate and according to the best judgment of the engineer, and that
the would-be contractors are to go over the works and examine them and
satisfy themselves as to their accuracy; and if the contract is made witliout
fraud or mistake, the contractor must be taken to have assumed the risks
of the work, and cannot recover additional compensation because the work
turns out to be larger or more onerous than the engineer had determined
it.' If he neglect to verify the estimates, but, supposing them to be correct,
enters into a contract to furnish the materials and erect a structure accord-
ing to plans for a gross sum, he is not entitled to any extra compensation
beyond the contract price because the structure requires more materials
than the estimate calls for.' The question is not often raised when the
work is undertaken at a unit of measure according to a schedule of prices,
but the contract prices hold; and a clause relating to extra work contained
in the contract does not limit the work to be done to the quantities actually
specified.* There are cases to the effect that if no notice is given that the
statement of quantities taken out by the architect are approximate or are
not guaranteed, and the contractor takes a contract upon such statement or
estimate of the architect and it proves erroneous, he cannot claim extra pay
because the quantities of materials required for the building were greater
than estimated.*
^ Deliilield v. Westfield, 77 Hun (N. Y.) C. P. 715; Emden's Law of Building, etc.,
124; and see Seymour v. Long Dock Co., 223, and Engluh cases cited The owner
20 N. J. Eq. 396; Grand Rapids R. Co. v. is not responsible for tlie accuracy of the
Van Deusen, 29 Mich. 431; Burke v. New estimates or bill of quantities. St. Paul
York (Sup.), 40 N. Y. Supp. 81. R. Co. v. Bradbury, 42 Minn. 222; and >ee
2 Cauuon v Wildman, 28 Conn. 472. ^Sullivan v. Sing Sing, 122 N. Y. 389.
2 St. Paul & N. P. Ry. Co. v. Bradbury Even without such a clause as precedes
<Miun.), 44 N. W. Rep. 1 [1890]. this section the owner has been held not
•• Sullivan v. S ng Sing, 122 N. Y. 889 responsible in England. Scrivner v. Pask,
[1890]. 18 C. B. (N. S ) 785. And see Haydenville
^ Sharpe v. San Paulo R. Co , L. R. 8 Min., etc., Co. v. Art Inst., 39 Fed. Rep.
Ch. App. 597; Scrivner v. Pask, L. R. 1 484; Blazon. Gill (Sup.). 23 N. Y. Supp.
* See Bids and Bidders, Sec. 151, Art. 13, supra.
518 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 59(>c
590. Extra Work Determined by Custom and Usage. — Questions of
extra work are sometimes settled by the prevailing usage or custom.* Thus-
under a contract "to make up the track in good running order, well sur-
faced, ties evenly and firmly bedded, and 2600 good ties to be put in per
mile, joints to be properly fitted, etc.," it was held that whetlier this re°
quired the contractor to fill up the space between the ties with earth or
other proper substance was a question of fact depending upon usage in such
cases, and that what was meant by the word " surfaced " must be deter-
mined from the evidence of witnesses conversant with railroad construe-^
tion.^
If it appears that among engineers and contractors the excavation of
indurate earth and cemented gravel or " hardpan " are known and recog-
nized as entirely distinct from the excavation of common earth, and that it
is customary for contractors to receive extra pay for such work, a reasonable
price may be recovered, although the contract did require the contractor
"to do all necessary masonry, grading, gutters, and all things else to the
complete graduation and masonry " of the road, and the company agreed to-
pay " at the rate of sixteen cents per cubic yard for all excavations of earth
done on said road under this contract," and although the meeting with
hardpan was unexpected by both parties.'
It is not competent to show by one engaged in the business of contract-
ing for such work how he would understand the terms if limestone rock
were shown him when he made his bid. Nor can it be shown that the
company represented to another who contemplated bidding on the work
that the rock to be excavated was limestone. " *
591. duestions of Alteration, Additions, and Omissions, and their Value
Left to the Judgment and Determination of the Engineer or Architect. —
The third means or method suggested to prevent the practice by contrac-
tors of working the job for extras is to leave the questions of quantities^
classifications, and value of extras or omissions to the engineer, aiid fre-
quently to leave the question of what are or are not extras to his final
determination and adjudication. Without such a stipulation, work done
outside of the contract upon subsequent orders, or work rendered necessary
by obstacles met or changes required, will not be under the supervision of
the engineer, nor will the liability of the company to pay for such work be
subject to the engineer's acceptance, approval, estimate, or certificate, as the
contract may provide, with regard to work under the contract.f
Under a contract which provides that all payments shall be subject to
373; Coker v. Young, 2 F. & F. 98 [I860]; Mo. 373 [1859]; hut see Wilkin v. Ellens-
Williams «. Fitzmsuirice, 3 H. & N. 844. bui trh W. Co., 1 Wash. 236.
1 The Western Union K. Co. «. Sniith, ^ Fruin v. Crystal Ry. Co., 14 S. W.
75 111. 497 [1874]. Rep. 557.
2 Shepard v. St. Ch. W. Plank Road, 28
* See Chap XXI, Custom and Usage, Sees. 603-628, infra.
f See Sees. 392-396, supra, and Sees. 592-599, infra.
'} 594.] CONTRACT STIPULATIONS. 519
the architect's approval, and that the owner may make "any alterations,
deviation, additions, or omissions from the said contract," which shall not
avoid tlie contract, but be duly allowed for in payment, (tlie foundations
were not mentioned in the contract, and there were no specifications); it was
held that, in the absence of proof that the rebuilding of the foundation was
in contemplation of the parties, and a part of the work provided for by the
contract, payment therefor was not subject to the architect's approval/*
592. Provision that Engineer or Architect shall have Power to De-
termine whether Work Is or Is Not Included in the Contract.
Clause: "All and every addition, omission, alteration, and deviation,
and every form of so-called extra work shall be executed in accordance
with the plans and specifications referred to and made a part of this
contract, in a good and workmanlike manner, according to the true
intent and meaning of the said specifications and in keeping and strict
conformity with the rest of the work, and to the acceptance and approval
of the engineer or architect, who shall be sole judge as to all questions
and disputes as to what are or. are not extras, and as to the quantities,
quality, character, classification, sufficiency, and value of any and all
materials and work arising from, due to, or required by any alterations,
deviations, additions, or omissions in the plans, specifications, or con-
tract, or in any matters growing out of the construction and completion
of the works, etc., etc. ; \ and if so directed by the engineer, the location
of any existing works shall be changed to meet the requirements of the
work or its appurtenances, and new work shall be added, when neces-
sary, to leave all in good and complete working order. All the cost of
doing any work above indicated is to be paid for as extra work, solely
and only upon the valuation of the engineer, and depending upon his
decision as to whether the work done is or is not included in the work
required of the contractor under this contract, and his decision in re-
gard thereto shall be final and conclusive and alike binding upon both
parties."
593. Provision that Engineer or Architect shall Determine Price or
Value of Extra Work.
Clause: "All additions to, deductions from, or alterations in the
works shall be valued at the prices set forth in the contractor's price-
bill of quantities for work of a similar character, and if no price in
the quantities be applicable, then at the schedule of prices furnished
by the contractor and attached to his tender, and added or deducted,
as the case may be. Should the price of any item of work done not
appear in the quantities or schedule, the same shall be fixed by the
engineer or architect, whose decision with regard thereto shall be final
and conclusive."
594. Provision that Engineer may Order Alterations, Additions, or
Omissions, and that He shall Determine the Value Thereof.
Clause: "And the engineer may also alter or vary levels, or the posi-
tion of any of the works contemplated, or order any further or other
» St. John v. Potter (Com. PI.), 19 N. Y. Supp. 230.
* See Sees. 393-396 and 370, supra. f See Sees. 392-396, supra.
620 EKQINEEBINQ AND ABGHITECTUBAL JURISPRUDENCE. [§ 595.
works not contemplated by the specifications or the contract, or may
order any of the works contemplated thereby to be omitted, with or
without the substitution of any work in lieu thereof, or may order any
work or any portion of the works executed, or partially executed, to be
removed, changed, or altered and, if needful, that other work shall be
substituted instead thereof ; and the difference of expense occasioned
by such increase, diminution^ or alteration so ordered or directed shall
be added to or deducted from the amount of this contract, agreeably
to the rates specified in the schedule of prices for regulating such extra
or diminished works hereto attached; and where the rates are not con-
tained in the schedule of prices, the engineer shall ascertain the amount
of such additions or deductions, and his valuation thereof shall be final
and binding upon the parties to this contract."
595. Quantity, Character, and Value of Extra Work Left to Judgment
of Engineer or Architect. — When such an agreement is made by the parties
to a contract, to rely upon the Judgment and skill of an architect or engi-
neer in ascertaining the character, quantity, classification, and value of extra
work, it is conclusive and the parties must abide by it.' * When the agree-
ment was "to refer any disputes and difficulties relative to the performance
of the work under the contract, or relative to any other work done and per-
formed, or to be done and performed by the contractor, not provided for in
the contract, to engineers as arbitrators, whose decisions are made binding
and conclusive upon the parties," the decision and ascertaining of the amount
due the contractor was held a condition precedent to the bringing of any
action for work done under the contract or as extra work." Accordingly,
when the contract provided that the engineer might order additions or
alterations in writing, and that the value of such additions and alterations
should be ascertained and added to or deducted from the contract price, as
the case might be, and further that any dispute or difference as to such
additions or alterations should be referred to the engineer, whose decision
or valuation should be final, it was held that an action for extra work was
not maintainable until the value of such extra work had been determined
by the engineer.^
In the absence of fraud, or if the question of fraud is not submitted to
» Baasen v. Baehr, 7 Wis. 516 [18591 ; Supp. 520 [1891], (K Y. App.) 35 N. E.
Goodyear v. The Mayor, 35 L. J. (N. S.) C. Rep. 323 [1893]; Berlinquet v. The Queen,
P. 12; Scammon v Denio (Cal.), 14 Pac. 13 Canada Sup. Ct. 26; Shaw v. First
Rep. 98 [1887]; Myers v. St. Andrews & Bapt. Ch., 44 Minn. 22; Cannon v. Wild-
Q. R Co., 5 Allen (N. B.). 577; Dillon v. man, 28 Conn. 491: Westwood v. Secy, of
City of Syracuse, 9 N. Y. 98: Mills v. State, 7 L. T. (N. S.) 736; Coker t>.
Weeks. 21 111. 568; Guthat t). Gow(Mich.), Young. 3 F. & F. 98: see also Rude v.
55 N. W. Rep. 442: Ball i}. Doud (Ores:.), 37 Mitchell, 97 Mo. 365; Ohio, etc., R. Co. r.
Pac. Rep. 70; Renst). Grand Rapids (Mich.), Crumbo, 4 Ind. App. 456.
41 N. W. Rep. 263 [1889]; Marquette Bld'g ^ Myers «. St. Andrews & Q. R. Co., 5
Co. -y. Wilson (Mich.). 67 N. W. Rep. 123; Allen (N. B.) 577 [1863].
Anderson v. Imhoff (Neb.), 51 N. W. Rep. ^ Westwood v. Secretary of State, 11 W.
854 [1892],- O'Brien c Mayor, 15 N. Y. Rep. 261 ; Morgan ??. Birnie, 9 Bing. 672.
* In fact, the same law is in general applicable to the decision of engineer as regards
extra work, as is set forth in Sees. 335-533, and especially Sees. 392-396, sup'a.
§ 595]. CONTRACT STIPULATIONS. 521
the jury, such questions as to extra work cannot be referred to the jury/ *
If the contract provides that such questions in regard to extra work shall
be ascertained by arbitration, the contractor cannot sue for the disputed
yalue of extras until he has offered to arbitrate the claim in the manner
provided for in the contract.' \
If the contract provide that the engineer shall decide whether altera-
tions made are within its terms, the contractor should get the engineer's
decision before undertaking extra work, for if he does extra work, knowing
that the owner believes it to be within the contract, without a protest, he
cannot thereafter assert that it was extra work and recover additional com-
pensation therefor/ When a contract provided that alterations directed by
the engineer should '*be made as directed," it was. held that such altera-
tions were within the jurisdiction of the engineer to determine and estimate.*
The fact that such additional work was necessary to the safe construction
of the work does not alter the case.*
Under such a clause it is the architect's judgment, and not his arbitrary
will, that is made conclusive. If he acts fraudulently his decision will not
conclude the party whom he attempts to wrong, and if it be shown that the
architect has disregarded important, clearly established, or obvious facts, the
frima facie presumption will be that he did so willfully."]; The architect,
as in other cases, can only exercise the right of determining the value of
such extra work and material in the manner provided in the contract.''
When a contract provides that the engineer in charge shall determine
the quantity and value of the extra work and extra materials required for
the works and furnished by the contractor, but does not stipulate that his
decisions and estimate shall be final and conclusive, it seems that if the
engineer has made his estimate of the amount of extra work and materials
and the value thereof with the knowledge of the contractor, and in pursu-
ance of the terms of the contract, and the contractor has received the
amount of such estimate as a final payment of his account without objection
or protest, he is concluded from making any further demand. The ground
of the action was not error or mistake on the part of the engineer, but was
based upon a subsequent estimate by the state engineer authorized by the
state, which was greatly in excess of the one by which the contractor had
» Gutbat «. Gow (Mich.), 55 N. W. Rep. « Dillon n. City of Syracuse. 9 N. Y. 98;
442: see also Anderson i). Imboff, aupj'a, and but see Board v. Byrne. 67 Ind. 21.
Marks V. Nortbern Pac. R. Co. (C. C. A.), « The County of Cook v. Harms, 108 111.
76 Fed. Rep. 941. 151 [1888]; see Memphis Ry. v. Wilcox,
2 Ball V. Doud (Oreg.), 37 Pac. Rep. 70; 48 Pa. St. 161 ; Marks v. Northern Pac.
Scammon v. Denio, 72 Cal. 393 [1887]. R. Co. (C. C. A.), 76 Fed. Rep. 941.
3 Evuns V. McConnell (la.), 63 N. W. ' Cook County v. Harms, 108 111. 151
Rep. 570. 68 N. W. Rep. 790. [1883]; see Clark v. United States, 6 Wal-
4 Olieilly V. Kerns, 52 Pa. St. 214. lace 543 [1867].
* As regards the effect of fraud collusion, and mistakes of engineer or architeC, se&
Sees. 418-443. supra. f See Sees. 414 and 437, supi-a.
X See Sees. 335-533, supra, as to engineer's decisions in general.
522 ENOINEERING AND ARCHTTECTUBAL JURISPRUDENCE. [§ 695.
been paid. The court says that if an error or mistake had been alleged and
shown, the transaction might have been opened to explanation and the
error made a ground for opening the settlement/ If the language of the
parties is such as to leave no doubt that they understood that they were
both agreeing to abide by the decision of the engineer, a court of equity may
hold tbe engineer's estimate conclusive even as to extra work. It was so
held with regard to the clause "that in cases where fast rock, shale rock, or
hard-pan may have to be excavated the additional compensation should be
determined by the engineer." "'
To give an engineer the determination of extra work, or of what is extra
work, it must be specially so provided, for extra work, being outside the
contract, would not otherwise be governed by its provisions and conditions."*
Thus a stipulation providing that "if any disputes or differences should
arise with the contractors in any way relating to the contract, or if any
question should arise between any of the several contractors relating to the
proposed works, such dispute, difference, or question should be settled by
the architect or engineer, whose decision thereon should be absolute and
final,'' was held to apply only to disputes as to the mode of carrying on the
several works and not to differences between the contractor and corporation
as to their claims for extras.* Another case held that a stipulation in a con-
tract for an arbitration in case of dispute as to the true value of extra
work, or of work omitted, did not include disputes as to whether certain
work was extra work, nor as to whether extra work at agreed prices was
properly done. Such a stipulation, it was held, could oust a court of law or
a court of equity of all jurisdiction over the matter falling within the stipu-
lation.^ A like view was taken by the court when the contract required a
certificate from the engineer that the work was fully completed and the
owner denied any liability for extra work.*
A contrary rule was held in an English case, when the contract pro-
vided that "all extras, payment for which the contractor should become
entitled to under the conditions, should be fixed by the surveyor, and that
the contractor should be paid on the certificate of the surveyor at the sur-
veyor's discretion, in installments, etc., and the balance on completion of
the works to the surveyor's satisfaction." The court held that this pro-
vision made the surveyor's determination as to what were extras conclusive
» Swift «. ThePeonle, 89 N. Y. 52 [1882]. see also Osborne v. O'Reilly, 42 N. J. Eq,
« Mansfield & S. Ry. Co. v. Veeder, 17 467 [1887]; mid see Lawson v. Wallasey
Ohio 396. L. Bonrd, L. R. 11 Q. B. Div. 229.
3 Pashby v. Mavor of B., 18 C. B. 2; and ^ Weeks v. Little, 47 N. Y. Super. Ct. 1;
«««Cook Co. V. Harms, 108111. 151; Bnum Hart v. Launman. 29 Barb (K Y.) 410;
V. Covert, 62 Miss. 113; Boody v. R. & B. Sinclair v. Talinadge, 35 Barb. 607; Doyle
R. Co., 24 Vt. 660; see Richarda v. May, v. Halpin, 1 Jones & S. (N. Y.) 369.
L. R -10 Q B. D. 400. « Ohio & M. Ry Co. v Cnimbo (Ind.),
4 Pashby v. Mayor of B , 18 C. B. 2; 30 N. E. Rep. 434 [1892], 4 Ind. App. 456.
Btarkey v. DeGrafif, 22 Minn. 431 [1876];
* See Sec. 395, supra.
§ 596.] CONTRACT STIPULATIONS. 623
as well as the prices for such extras.* Under the terms of another English
contract, which provides that work should be paid for according to a
schedule of prices, or in the event of "any other description of work not
included in tlie schedule at such prices as the engineer might agree to, and
in case of dispute between the contractor and the company, at such prices
as an arbitrator should determine, to whom disputes were to be referred,"
it was held that the arbitrator could determine not only the price, but also
what work was *' another description of work," and his decision that a large
quantity of soft, swampy soil was not "excavation" within the meaning of
the contract, but was within the exception as to " any other description of
work," and therefore an extra item and to be paid for at a different price
from that named in the schedule, was upheld and approved.'
596. Power to Decide Questions of Extra Work Does not Imply Power to
Determine Damages for Breach of Contract. — A provision that disputes with
respect to extra work, or of work omitted by direction of the owner, shall be
determined by arbitrators does not include the determination of the question
of damages for refusing to allow the contractor to do the work contracted
for, and for letting the work to another.' If the contract reserve to the
owner the privilege at any time during the progress of the work of making
any alterations, deviations, additions, or omissions in the work or materials
contracted for, without making the contract void, and provides that the true
value of such changes shall be determined by arbitration, it does not give
the arbitrators the determination of the question of damages for nonper-
formance or delay." Nor does the agreement that the engineer shall deter-
mine all questions arising relative to the execution of the contract, and that
his decisions shall be final and conclusive, extend to a subsequent promise
on the part of the employer to pay additional compensation for work which
the contractor had refused to do on the ground of misrepresentation as to
the character of the work.^
Where a city lets a contract for the erection of a building containing a
provision that in case of any dispute between the architect and the con-
tractor as to the meaning of the plans and specifications, or as to what is
extra work, the same shall be decided by the architect and his decision shall
be final; but afterwards, when disputes arise, makesa supplemental contract,
which, though making the architect the final interpreter of the plans and
Lpecifications, provides that in the event of a difference between him and
the contractor, the contractor shall "under protest" complete the work
under the architect's interpretation, leaving the contractor's rights as to such
work done under protest open without impairment until after the full com-
* Richards v. May, 10 Q. B. D. 400 [18831; [1886].
tee Galveston v. Devliu (Tex.), 19 S. W. * Cooke v. Odd Fellows, 1 N. Y. Supp.
Rep. 395. 498 [1888].
2 Kirk V. E. & W. ludia Co., 55 L. T. » Osborne u. O'Reilly, 42 N. J. Eq. 467
R. (N S.) 245 [1886]. [1887].
» Boyd V. MeigUan, 48 N. J. Law 404
524 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 597*
pletion of the work, — the contractor, in an action based on the supple-
mental contract for extra work done and materials furnished, is not bound
by the architect's decision that such work and materials were required hj
the plans and specifications.*
When it is mutually agreed that the value of extra work shall be ascer»
tained by persons mutually chosen and in no other way, but the persons-
have never been chosen and no valuation has ever been made, the contractor
in an action upon a quantum meruit may give other evidence of the valu©^
of the work done.^
When the engineer is employed by the company and is given the direc-
tion of the work and the authority to estimate the work and determine
questions pertaining to it, he is not the agent of the contractor, but the spe-
cial agent of the company, and if the measurements and calculations made
by the engineer or his assistants are not correct, and extra or unnecessary
work and expenditure result, the loss ought not to fall on the contractor^
but upon the company.' *
A failure to comply with a clause in a builder's contract providing that
any dispute as to the true meaning of the drawings or specifications shall be,
decided by an architect, and as to the true value of extra work by arbitra-
tors, is no defense to an action for services rendered under such contract
where there is no allegation in the answer setting up such failure, that there
was such a dispute, or that defendant ever offered or plaintiff refused te
submit such matters as provided for.* f
Extra work done under a contract providing for extra work must be
carefully done, and the fact that the said extra work is done according te
the plan and under the direction of the city engineer does not relieve the
contractor from due care in the performance of the work."
597. Provision that Questions and Doubts with Regard to Extras shall be
Submitted to Arbitration.
Clause: " Should any questions or disputes arise as to whether any
work done is or is not included in the contract, or as to the value of any
additional or extra work done, or any omissions made after the engi-
neer or architect has given his final certificate in writing on completion
of the contract, the same shall be referred to two arbitrators, one to be
chosen by the owner or company, and the other by the contractors, and
in case of disagreement, the two arbitrators shall appoint a third, and
their award and decision, or that of any two of them, shall be final and
conclusive, and binding upon all parties to this contract; the submis-
sion and reference to be in writing under the seal of the owner or com-
pany, and the hands and seals of the contractors, and duly witnessed,
» Galveston v. Devlin (Tex.), 19 8. W. Eq. 397 [1869].
Rep. 395 [18921. 4 jobnston v. Varian, 108 K Y. 645
s Baker v. Herty, 1 Cranch C. Ct. 249 [1888].
C1805]. 6 Charlock d. Freel, 50 Hun. 395 :.18881.
» Seymour v. Long Dock Co., 20 N. J.
* See Sec. 421, supra. f See Sec. 414, supra.
§ 600.] CONTRACT STIFULATIOj^S. 525
and the said award of the arbitrators or any two of them also to be in
writing, duly signed, sealed and witnessed, and the award so made may,
by any of the parties hereto, be made a rule of the supreme court of
the state/'
598. Provision that Disputes as to Extra Work shall be Referred.
Clause: " Should any dispute arise respecting the true construction
or meaning of the drawings or specifications, the same shall be decided
by said architect, and his decision shall be final and conclusive; but
should any dispute arise respecting the true value of the extra work or
of the works omitted, the same shall be valued by two competent per-
■ sons, one chosen by the owner, and the other by the builder, and these
two shall have power to name an umpire whose decision shall be bind-
ing on all parties.'^ *
599. Instances of Extra Work— Interpretation of Certain Terms and
Expressions. — In engineering and architectural work many ambiguities
arise where the language employed by the parties is insufficient or inade-
quate to express definitely or fully their intention. Certain indefinite or
ambiguous expressions commonly in use have been given certain construc-
tions by our courts and form a precedent which is quite likely to be followed
if they again come up for interpretation. The meaning given to such terms
and clauses cannot fail to be interesting to the reader, and it is hoped that
the insertion of them here may have a threefold value: First, to teach the
reader to avoid the same and similar ambiguities in his own contracts:
secondly, to give him the probable interpretation that they will receive;
and thirdly, to assist him in the interpretation of other doubtful clauses
which may occur in his experience.
600. Work Not Specifically Mentioned in Contract. — It is frequently
held that a contractor is bound by his contract to do all and everything
that is necessary to make his work reasonably effective for the purposes
which it was intended to accomplish,* and this may be so even if every item
and detail that are necessary to the completion are not specifically mentioned
in the contract."
Materials and work that are properly embraced in a structure, though not
specifically mentioned in the specifications, cannot be charged for as extras
when the contract is to build and complete the structure. Thus under the
head " carpenter and joiner " there were specified the scantling of the joists
for the floors, the rafters and ridge and wall-pieces, but the flooring was
not mentioned, and it was decided that no extra charge could be made for
furnishing the floor-boards; that from the whole instrument it was clear that
the contractor was to supply the necessary materials for the floor.'
The cellar and foundations have been held a part of the erection and
» L, B. & W. Ry. Co. v. Adamson, lU ' Williams v. Fitzmaurice. 3 H. & N.
Ind. 282 [1887]. 844 [1858]; and see Emden'sLaw of Bld'g^
'Currier v. B. & M. R. R., 34 N. H. etc.. 223; aw^ La Chicotte^j. Richmond Ry.
498 [1857]. & TeJ. Co. (Sup.), 44 N. Y. Supp. 75.
* As reicards arbitrators and umpire, see Sees. 519-533, supra.
^26 BNOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 601.
construction of a building, sufficient to support a mechanic's lien ;' and a con-
tract for the construction of a wall at five dollars per cubic yard, which said
nothing about the excavations, was held to include the excavations, and that
the contractor was bound to make them without extra pay. But when the
specifications called for a lining of coarse gravel in the rear of the wall and
made no provision for payment, and there was no gravel near the work, and
it had been agreed to substitute macadam material for the gravel, the con-
tractor was permitted to recover extra compensation not only for the gravel
lining but for the excavations for it.''
A contract to grade and pave a street and to lay the stone curb as speci-
fied for U fixed price per lineal foot, was held to include the digging of the
trench for the curbstone after the surface of street had been brought to the
proper grade.^
Although the only promise in a building contract is to furnish " all
stock and materials mentioned in the specifications," it will include the
erection of the building contemplated by the specifications, where such ap-
pears to have been its intent from provisions as to time of beginning the
work, payments according to estimated value of the work and materials, and
as to superintendence of architect.*
A contract to keep " the street bridges where crossed by street-car tracks
in first-class order," has been held to mean to keep the whole bridge in
repair/
An agreement to quarry, burn, and deliver cement in a storehouse at a
certain place, the stone to be taken from the company's quarry and in a
manner so as not to endanger it, and a counter-agreement to pay a certain
price per barrel for all cement delivered in such storehouse at times stated,
was held to require the contractor to furnish the wood and coal to burn such
cement."
601. Limits ofWorkNot Properly Defined. -^A common source of ambi-
guity and trouble in railroad circles is the indiscriminate use of the words
**road" and "track." It is not surprising that the same annoyance has
found its way into the courts on several occasions. The question came up
as early as 1855, under a contract to build a railroad betv/een certain termini
at a specific price or rate per mile, according to certain specifications. A
•dispute arose as to whether the fixed rate was per mile of track — i.e., the
aggregate lengths of the main track, the side-tracks and the turnouts — or
was per mile of road-bed. It was decided that the latter interpretation was
the proper one, but apparently upon the ground that the contractor had
received monthly payments on monthly estimates, and had made no claim
1 Cristal v. Cochran (Pa), 23 Atl. Rep. Hep 911 [1890].
444. 5 Stnte v. Canal & C. St. Ry. (La.), 10 So.
2 Shipman ^. Dist. of Colum.. 119 U. S. Rep 940 [1892].
148, 703. * Freston v. Lawrence Cement Co.
3 Davis V Sairinaw. 87 Mich. 439. (Sup.), 30 N. Y. Supp. 144.
* While 7). McLaren (Mass.), 24 N. E.
f 601.] * CONTRACT STIPULATIONS. 527
for payment for such side-tracks, etc., and that such a practical construction
of the contract concluded the contractor from setting up a different one.*
The later cases have adopted the same interpretation in computing the
number of miles of railroad specified as being between two points,' and in
•determining the expense that several railroads should bear " in proportion
to the length of the main track, or tracks or road," it was held in the latter
case that the length intended was the measured distance between the two
points and not the number of miles of track.' Under a contract to, pay a
•certain amount per mile for the construction of a railroad, which is to be
-completed by a certain date, the contractor was held entitled to payment
both for a temporary line, built around a difficult part of the route, to save
time, and for the permanent line, built by a more direct, but more difficult,
route."
A contract to construct the' road-bed of a railroad between two cities
named has been held to include all the road as indicated by their depot
grounds, and that the contractor could not recover extra compensation for
grading within the corporation limits of the villages or cities named, and
that the contract was not satisfied by grading to the corporation limits.*
Under a like construction it has been held that work upon bridge founda-
tions of a railroad is work done under a contract " to construct and complete
all the grading, earth, rock, and masonry for the road-bed of the railroad
from a place named to Kennebec river; the bridge being over the Kennebec
river." Oattle-guards, water-tanks, stop-gaps, slides, sidings, and Y's, have
been held part of the complete construction of a railroad, which a contractor
is bound to supply under a contract to build and complete the road, but not
the rolling-stock.^
Earthworks at a price per cubic yard to be measured in the embankment
have been held to include the filling in between the ties after the track
was laid, and that it was not embraced in the contract to lay the track."
But under a contract to fill in a trestle under a railroad track which pro-
Tides for compensation by the cubic yard of dirt, solid measure, the con-
tractor was not allowed to recover for the space occupied by a brick culvert
constructed by the company under the trestle."
" Clearing land," in absence of words of limitation, has been held to
mean the removing all the timber of every size, but not to include the tak-
ing out of stumps and roots.^"
' Baker v. T. & B. R. Co., 27 Vt. 766 C. & N. R. Co.. 35 Barb. 373 [1861].
[1855]. « Rogers v. Hoffan. 58 Me 305 [1871].
' Siilzlmchv. Thompson's Admrs (U. S. 'Central Trust Co. v. Condon (C C
€. C. Pa.), 17 The Reporter 777 [1884]. A). 67 Fed. Rep. 84.
3 People V. Chapin (N. T.), 13 N E. » Snell v Cottingham, 72 111. 161 [1874]
Rep. 595 [1887]. «E. Tennessee. V. & G. Ry. Co. k
* Central Trust Co. v. Condon (C. C. A.), Mattliews (Ga.), 11 S. E. Rep. 841 [1890]
67 Fed. Rep. 84. lo Seavey v. Shurick(Ind.),ll N. E. Rep.
5 Western Union R. Co. v. Smith, 75 597 [1887].
111. 496 [1874]; sem&Ze, Mason v. Brooklyn
528 ENGINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 602.
Where, by the terms of the contract, the work done under it was to be
paid for partly in stock and partly in money, it was held that payment for
extra work might be recovered in money.^ When a contractor was to bfr
paid " the cost of labor and materials, and a certain per cent, added thereto-
as profit," he was held entitled to the amounts paid to subcontractors, in-
cluding their customary profits, and his per cent, thereof.''
An interesting case came up in the construction of the Northern Pacific
railroad under a contract which provided that earthworks should be meas-
ured in excavation. An embankment was partly made from two adjacent
road cuts which were measured, and it was completed with earth borrowed
from ditches which were not measured. The rule was that when earth-
works were measured in embankment 10 per cent, should be allowed for
shrinkage. The volume of the embankment was 100,000 cubic yards; that
of the road cuts 60,000 cubic yards. The contractor contended that his
estimate for excavation from borrow-pits should be 110 per cent, of 100,000
cubic yards, less 60,000 cubic yards, or 50,000 cubic yards. The engineer's,
estimate was 100,000 cubic yards, less 60,000 cubic yards measured in cuts,,
which was 90 per cent, of the amount which would be required to finish
embankment, which was 44,444 cubic yards. The company allowed only 110
per cent, of 100,000 less 60,000, or 44,000, which is 6000 cubic yards less
than the contractor's claim, and 444 cubic yards less than the engineer's esti-
mate. The lower court sustained the estimate of the company.' The case
is instructive as showing the importance of trifles in interpreting a contract.
602. Estimates of Quantities of Work and Materials. — A provision for
an extra allowance in case "the aggregate amount of all materials encoun-
tered were increased over the preliminary estimate was held not to apply
to an increase over and above the estimate of each kind of material, but to
mean that the aggregate amount of all the kinds of materials should exceed
the total estimate."
Under a contract to erect new buildings upon land covered by houses,,
whicli does not mention them nor the use of materials in them, the con-
tractor becomes the owner of the materials upon taking possession and
removing them, and can use them whenever and wherever he chose. If the
owner does not provide for the use of the materials in the old buildings in
the new, or does not remove them before the contractor takes possession
under his contract, he waives his right to them and they belong to the con-
tractor.^ The right to make alterations under a lease does not give right
to materials taken out.^ *
' Smith V. B. C. & M. R. R, 36 K H. ^gmith v. B. C. & M. R. Co., 36 N. H.
459 r 1858]. 458.
2 Hamilton v Coogan, 28 N. Y Siipp. ' Morgan v. Stevens. 6 Abb. New Cases-
21; accord. Ford «. St. L., K. &N. W. Ry. 357 [1878] ; compare Cooper v. Kane, 19^
Co . 54 Iowa 723. Wend. 386.
' Case not reported. •* Agate u. Lowenbein, 57 N. Y. 604.
* See Sec. 265, supra.
§ 602.] CONTRACT STIPULATIONS. 529
A stranger performing work by mistake upon another's contract to ex-
cavate earth from a street without the latter's knowledge cannot recover
the cost thereof/ But where one contractor, upon another portion of the
same sewer, excavates material and deposits the same upon that part of the
sewer constructed by another contractor, and the part so covered up is
afterwards found to be defective by the inspector, who requires that such
part of the sewer be re-excavated and rebuilt, the contractor who placed
the materials upon the sewer is liable for the damages and expenses re-
sulting from his act.'
» Ronr v. Baker, 13 Oreg. 350 [18861 ; (Mich.), 60 N. W. Rep. 695.
Ht see McClary v. Mich. Cent. R. Co. ' Dalamater v. Folz, 50 Hun 528 [1888].
CHAPTER XXI.
CUSTOM AND USAGE IN CONSTRUCTION WORK.
THEIR EFFECT UPON THE CONTRACT. ITS INTERPRETATION AND
CONSTRUCTION.
603. Provision that Quantities shall* be Determined by Actual Measure-
ment without Regard to Usage.
Clause: "It is hereby further agreed and understood that the quanti-
ties of materials and work to be received and paid for, by either party to
this agreement shall be measured and estimated accoriiing to their
actual volume, area, or length, without regard to any customs and usages
to the contrary."
604. Provision that No Extra or Customary Measurements shall be
Allowed.
Clause: "It is further agreed and understood that no extra or cus-
tomary measurements of any kind will be allowed in measuring the
work under these specifications; but the actual length, area, solid con-
tents, or number only shall be considered, and the length shall be meas-
ured on the center lines of the work, whether straight or curved."
605. Effect of Custom and Usage on the Law of Construction Contracts. —
A distinctive feature of the common law is its versatility. Its flexibility and
fickle character denies it the name it bears if employed in the sense that
the term is used by scientific men. What may be the lawyer's philosophy
of law, would be the scientist's theory of probability. If a certain state
of facts or conditions be given a scientist, and they may be classed under
any of the sciences generally understood, he will deduce a certain and
known result, by the laws of mathematics and science, but the law of the
land is modified by so many conditions and circumstances as to render posi-
tive deductions almost impossible. Law to a mathematician implies cer-
tainty, positive results, absolute truths, but these elements in the law of the
bench or bar are nearly extinct. Make ever so clear a statement of the
case to several lawyers, and a variety of opinions may be had, many directly
opposed and contrary to one another.
Probably the most active agents, modifying the rigid application of the
fundamental principles of the law, are those of usages or customs; usages
that have been acquiesced in and practised by communities, trades, and
professions, and have after a long time become the custom of the land.
580
§ 606.] CONTRACT STIPULATIONS. 531
These usages and customs are the foundation of the common law. The
English people have the greatest respect for precedent, for usages and cus-
toms of their forefathers, and what had been the custom of the people was
made the law of the land, and so it is to this day. It, is this suppleness
and adaptation of the common law to the changes in life and to the altered
views of the people that especially commends it to a liberty-loving race.
As has been said, "it is not an indication of its inferiority, but a proof of
its vitality.'' '
All branches of law may be qualified by usage and custom, some to a
greater and some to a less extent, but the construction of contracts is sub-
ject to the greatest and most frequent changes. Contracts are the means
by which persons assume obligations to one another; they are the medium
by which the professional, manual, and commercial business of the world is
carried on, and their interpretation and construction should conform to
the usages and customs adopted and practised by the calling in which they
are made.
606. Peculiar Effect of Custom and Usage. — The practice of engineer-
ing and architecture, having to do with such a variety of materials, employ-
ing so many different trades, and being so world-wide in its application, is
essentially changed by custom and usage. It must not only conform to the
usages of trades employed, but to the custom of the particular locality in
which the work is undertaken. These may so modify the contract in its
application to the work or subject-matter as to materially change the
result and effect of the contract. They may change the requirements of
the contract as to the amount, quality, and classification of work and
materials, or as to the price or compensation to be paid, or the manner and
means of accomplishing its ends or the time when it shall be completed.
Usages and customs are especially annoying to young and inexperienced
engineers and architects, who read a contract and its accompanying speci-
fications in the light and understanding of their school-books or of the
popular meaning of the terms employed; whose understanding of the words
"cord" or " perch,'' etc., is that number of cubic feet given by their arith-
metics or described by the lady teachers of their childhood. An experi-
enced engineer would read between the lines, "as it were," and a "cord'*
to him would mean several things — either a load of given weight or 100 or
128 cubic feet. Novices may marvel at interpretations given to terms of
contract by trades, sometimes in plain contradiction to the usual meaning
of the words employed, but the meaning adopted by the trade or business,
which employ them, will be the meaning given to them by the courts.
If accidents occur or injuries result from negligence or delay, the liability"
for such injury is often a matter of custom or usage. The liability of
one party as against another for patterns, molds, or requisite appliances to
* Browne's Custom and Usage 17.
^32 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE, [§ 607.
prosecute or complete the work is sometimes a question of custom/ as is
also the meaning of words, terms, and phrases, and therefore the proper
performance and completion of a contract or the skillful execution of a
piece of work.
It may seem strange that it can be successfully maintained that a perch
in a contract means 25 cubic feet,* or that 1000 must be taken to mean 100
dozen, or 1200;' or that black means white,^ or that a contract to pay for
brick per 1000 means to pay for brick never laid or furnished; yet these are
instances of the effect of usage on the interpretation of contracts.
All trades and businesses have trade usages and trade customs which
may differ, even for different localities in the same trade, and since courts
recognize them and employ them to construe the meaning of contracts, it is
essential to know: (1) What constitutes a usage or custom; (2) when they
may be employed to explain the meaning of contracts; (3) how may they be
shown or proved; (4) usage of what place controls; (5) instances and terms
defined.
607. What may Constitute a Usage. — What may constitute a usage so
as to enter into and form a part of the agreement between two persons is
pretty well determined. There are some essential features to its admission
that have always been required. Usage is a uniform practice followed in
the transaction of a business or the carrying on of a vocation or trade, or an
established method or rule applied to the exercise of a calling in which the
the profession, business, or trade generally acquiesce and by which they aro
governed.
608. Usage must be Established. — First, the practice, method, or rule or,
in short, the itsage must be established. By which is meant simply that it
must have existed a sufficient length of time to have become generally
known.* The length of time must depend upon circumstances and may
differ in each particular calling. The frequency of its occurrence and the
number of people affected by it, or to whose notice it is brought, will deter-
n^ine largely the time necessary to establish a usage.
Three weeks have been held sufficient in the insurance business in the
city of New York, where a great many transactions of the same character
take place every day.' In another case it has been held that two years
was too short a time to establish a usage of a bank, it appearing that only
four cases had occurred in that time." In the language of the court: "To
give usage the force of law, it requires an acquiescence and a notoriety irom
which it may be inferred that it was known to the public, and especially to
» Mitchell «. Henry, 24 Solic. Jour. 522 and 689.
*nd 689; Barrv ■». Bennett, 7 Met. 354. * Lawson on Usage 29.
* Smith V. Wilson, 3 B. & Adol. 728 » Wall v. East R. Ins. Co., 3 Dur. 264.
tl832]. • Lawson on Usage 29-30.
' Mitchell V. Henry, 24 Solic. Jour. 522
* See %QC.^%\, infra.
§ 609.] CONTRACT STIPULATIONS. 533
those who did business with the bank/ One, three, and seven years have
hQQw held sufficient in other instances.'
609. Usage must be Certain and Uniform. — A usage must be certain and
uniform. It must be fixed, certain, and universal. The proof of it must
be undoubted. It should be definite, consistent, and not contradictory. If
it is variable, indeterminate, and persons disagree as to its use, it cannot
■control the well-understood meaning of words. Thus, when a custom was
set up that in making surveys of government lands it was a practice of the
surveyors to include more land than the warrant or deed called for, and one
witness testified it was customary to allow 5 per cent, in the length of lines,
and another said it was usual to add four inches to the length of a chain in
rough, broken, and bushy land, but that some did and some did not add to
the length of a line measured with the chain thus elongated, and that in
measuring old lines he had usually found them longer than the calls in the
warrant, some were more than 5 per cent, and some less; and it was fur-
ther testified that a few of the old surveyors would^fall short of the distance
•called for; that there was a great variety of measurements in the early sur-
veys, but that generally surveyors measured the distance called for, and that
no general proportion of excess was known to the witness, — the court said
that it was certain that almost every locator had appropriated more land
than his warrants would entitle him to, but that the testimony, instead of
proving any known and certain custom, proved the reverse.'
A usage must be continued, and that there must be no temporary suspen-
sion or interruption of the rule. A practice maintained in a public depart-
ment during the administration or occupancy of a particular officer by his
directions may not be regarded as an established usage. Thus the custom
of a city department to charge interest on sums advanced to contractors, was
held inadmissible when it appeared that the practice had been different
under different comptrollers, and that the witnesses' knowledge was not later
than a year before the time in question.*
Acts of courtesy, habits of accommodation and indulgence will not
•establish a usage, if they are evidently practised for that purpose. The
general practice of accepting checks in payment for money, or of goods and
wares from stores of employers in payment for labor, does not establish a rule
to control a written contract which is silent as to the means or manner of
paying. Nor does the common act of courtesy, which induces a man to call
on his mechanic to rectify what is amiss in his job,. establish a custom to
excuse the trade from responsibility for bad work.^ The fact that a railroad
company has paid for medical attendance of injured employees in its service
"will hardly bind it to pay for subsequent services rendered.^
An arbitrary change in the methods of doing business or in the authority
' Lowe «. Lehman, 15 Ohio St. 179 [18651. ^Lawson on Usage 37; see Butler «.
^ Lawsou on Usjige 29. Charlestown, 7 Gray (Mass.) 12.
^ Lawsou on Usage 35. ^ Lawsou on Usage 38.
584 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 610.
conferred upon certain officers or agents, cannot be made to the prejudice
and injury of a customer, without notice.' The notice should be given so
as to give persons sufficient time to adapt their business to the change.
Thus a custom of a bank to give accommodation to a customer for which
value has been given is entitled to a reasonable notice that the accommoda-
tion is discontinued.* The practice of other banks in a place to give notice
of dishonor of commercial paper by mail will not hold with a bank which
has formally abandoned the usage.' A usage for a company to pay for
materials and supplies ordered by its engineer, to be used on a bridge being^
constructed under the engineer's superintendence, will render the company
liable for subsequent orders, unless notice be given that the authority has-
been withdrawn/ *
610. Usage must be Generally Known. — A usage must be general, or it
must be known. If not expressly brought to the notice of a party it must
be so general and notorious that it may be presumed that the parties knew^
of it and contracted in reference to it.* It would not be necessary to prove-
that a usage is general or notorious, or how long it has existed, if it be
shown that the parties knew of it and contracted with reference to it;' a.
practice might exist between two persons only, and bind them in all
subsequent dealings between themselves.' It has been said ^ that " the
proposition that a usage must be general in order to bind the parties, refers
exclusively to the cases in which the knowledge of the parties and their
intention to adopt the usage are inferred merely from the fact of its exist-
ence; but when their knowledge or intentions are established by other
direct or circumstantial proof the contract will be governed by the usage,,
however local or partial, in reference to which it is proved or presumed to
have been made."
As knowledge and mutual understanding with regard to a usage are
difficult to prove, and since in most cases nothing has been said about it, it
is generally necessary to prove the existence of a usage, and that it was so
generally known and so universally in practice, that it becomes by implica-
tion a part of the contract.® Courts rigidly apply the rule that a usage
must be general unless it can be shown that the contract was made with
reference to it. Just what is understood by the term ** general" often:
becomes an important question.
Where it appeared that a railroad company was in the custom of making^
monthly payments to its contractors for work done on its road, upon esti-
mates made by the engineer at the end of each month, and that usage or
^ Isbell u. Lewis (Ala.), 13 So. Rep. 335. * Lamb v. Klaus, 12 Araer. Law Reg. (N.
2 Lawsou on Usage 39. S.) 199.
» Beattie v. D., L. & W. Ry., 90 N. Y. « Lawson on Usage 40.
643 [18821. ■' Insurance Co. v. Wilson, 2 Md. 241.
•♦ Dickinson v. Poughkeepsie, 75 N. Y. * Steamship Co. v. McAlpine, 69 Ga. 431
65 [1878.] [1882].
* See Sees. 377 and 558, supra.
§ 611.] CONTRACT STIPULATIONS. &'65
custom having been adopted by the plaintiffs, it was held that this must be
considered the rule of payment under the contract, established by mutual
consent, and binding upon the -parties.'
The usage of one person, or of one house, or of one mill, or of one rail-
road, is not sufficient to meet the rule as to generality for a community; but
though a usage is confined to a city, town, or village, it may be *' general "^
as to its use among their inhabitants in business carried on within its
boundaries. A usage shown to be general in a city would not prove its
generality in the country, and it has been held that a usage proved to be
general in New Orleans, Cincinnati, and Louisville was not sufficient to
show a general usage among merchants upon the Mississippi river and its
tributaries.'
The fact that many persons practise a usage, or that the majority of
those engaged in the business have adopted it, or that two-thirds even of
the business done is transacted according to a rule," is not enough; the cus-
tom must be universal, it must be the mode." If a practice between two
men, or two mills, or two railroads would not establish a usage between
persons, mills, or railroads in general, . neither would it be expected that
a usage in a single town or city would establish a usage in other like
cities and towns. It must be shown to be a general usage among cities and
towns.'"*
611. Parties to Contract should have Knowledge of Usage. — It has been
frequently held that if a usage is to be implied as a part of a contract, it
-must have been known to the parties, and they must have contracted with
reference to the usage. The fundamental principles of contracts would
seem to require this. There are invariably two requisites to a binding con-
tract: consideration and mutual consent. Mutual consent is indispensable.
The parties must have a clear and definite understanding of the obligations
which they assume. The understanding of one party cannot govern ; the
law of contracts requires that there shall be a meeting of the minds of the
parties to the contract, and if the parties do not understand alike there is
no contract, theoretically. If it appear that the parties understood the
contract differently, one that the structure was to be built in a certain way
or of a certain material, and the other that it was to be made in a different
manner or of another kind of material, or there was no mutual assent as to
what was to be done or by what means, there could be no contract.* A
local usage cannot affect the meaning of the terms of a contract unless it is
known to both contracting parties.^ Courts generally find that there was a
mutual understanding, and they bring usage and customs to their assistance
' Boody V. Rut. & Burl. R. Co., 24 Vt. [18841.
660 [1853]: accord. Wood's Law of Ruil- ^^iikingon v. Williamson, 76 Ah. 16a
roads 1005; Merrill v. Ithaca, etc., R. Co., [1884].
16 Wend. (N. Y.) 586. sChatcaugay Ore & Iron Co. v. Blake»
* Lawson on Usage 41, 12 Sup. Ct. Rep. 731; accord Collins v.
^Tavey v. Lumber 9o., 33 Minn. 45 Mechling, 1 Pa. Super. Ct. Rep. 594.
536 ENGINEERING AND ARCHITEGTURAL JURISPRUDENCE. [§ 612.
to determine the intentions of the ■ parties. A plea of "did not know" is
of no avail if the usage is fully established/ It is not necessary to show
that the custom "was in the minds of both parties" before it becomes a
part of the contract, for it may be so universal in practice that it becomes
so by implication.^
One line of cases holds that it must be shown to have been so long con-
tinued, universal, and notorious that all persons may be presumed to have
had notice of it ; ^ while another line holds that the usage must appear to
be so well settled, so uniformly acted upon, and of so long a continuance
as to raise a fair presumption that it was known to the contracting parties,
and that they contracted in conformity with it."
Numerous cases exist where one party has known nothing of the custom,
yet it was held to control.^ If one of the parties were ignorant of the usage,
it is not binding on him; but that is for him to prove." The party claim-
ing under a usage is not required to show that the usage was known to the
other party. His knowledge will be presumed at the time the contract was
made.'' There must be some proof that the contract was made with refer-
ence to the usage, or that the position of the parties was such, or their
acquaintance of the business, or their knowledge of the practice, or some
circumstances must exist and be shown from which it may be presumed or
inferred that the parties had reference to it.* The parties must be acquainted
with the usage or in some way be chargable with notice of it."
If the usage is not general and established and universally known, it
must be brought to the notice or have come to the knowledge of both par-
ties in order to become a part of their agreement. Such are rules or
regulations made by particular persons, firms, corporations, societies, and
cities to govern their members or employees in the conduct of their business.*
A witness cannot testify that a custom is so general and uniform as to create
a presumption of the knowledge of it."
612. Knowledge of Parties of Trade Usages and Customs.— Trade usages
and customs are those that are most frequently met in engineering practice
and in construction work, and these are governed by the laws of general
usage. If these are established, uniform, and general, they become a part
of contracts without actual knowledge by the parties. One who employs a
'Long V. Davidson (K C), 7 S. E. Rep. Greenwich Ins. Co. v. Waterman, 54 Fed.
7o8. Rep. 839 ; De Cernea v. Cornell, 22 N. Y.
2 Steamship Co. v. McAlpine, 69 Ga. 437 Supp. 941.
[1882]. « Johnson v. De Peyster, 50 N. Y. 666
■■' VVadley v. Davis, 63 Barb. 500 [1872]. [1872].
4Foye V. Leighton, 22 K H. 71 [1850]; ""Lyon v. George, 44 Md. 295 [18751.
Park V. Viernow, 16 iMo. App. 383; Rush- s v^r^iis ^. Bailey, 49 K Y. 474 [1872],
forth ^. Hndfield, 7 East 224. » Martin v. Maynard, 16 N H. 165
^A rule for measuring brick, Long v. [1844] ; accord Gano v. Palo, Piuio Co
Davidson, 101 N. C. 170 [1888] ; that ten (Tex.), 8 S. W. Rep. 636.
liours made a day's work, Lowe v. Lehman, '^ Lawson on Usage, 44-58.
15 Ohio St. 179 [1865]; and see Austrian '^Ford v. St. Louis, K. & N. W R. Co.,
•». Springer (Mich.), 54 N. W. Rep. 50 ; 63 Mo. App. 133.
§ 612.] CONTRACT STIPULATIONS. 537
professional man or mechanic in the business in which he is engaged is
supposed to deal with him according to the rules and uniform usages
established in his calling unless he stipulates to the contrary, A con-
tract in respect to a particular trade is on the basis of the usages of that
trade, which becomes a part of the agreement unless expressly stipulated to
the contrary.'
When customs exist in reference to certain kinds of business, as, for in-
stance, among real-estate brokers, any one having actual or presumptive
knowledge of and employing them in their business without special con-
tract will be presumed to have done so with reference to such custom.' If
there is nothing in a contract to negative the inference that parties
contracted with reference to the usage or custom which prevails in the
particular trade or business to which the contract relates, then the usage
may be shown in evidence for the purpose of showing with greater certainty
what was intended by the words or terms used in the contract; and this,
though a meaning may be given to words contradicting that which would
attach to them generally."
Every legal contract is to be interpreted according to the intention of
the parties, and usages, if they are reasonable and well established, are
deemed to form a part of the contract and to enter into the intention of the
parties.* They are supposed to contract in reference to the usages of the
particular place where they make the agreement and the trade in or to
which they contract,^ Although usages of trade cannot be set up either to
contravene an established rule of law or to vary the terms of an express
contract, yet all contracts made in the ordinary course of business, without
particular stipulations expressed or implied, are presumed to be made in
reference to any existing usage or custom relating to such trade, and a party
may always resort to such usage to ascertain and fix the terms of a con-
tract." If the contract concerning a particular business is ambiguous, it
will be presumed that it was made with reference to the ordinary course of
business, and evidence showing such course is admissible.'
Knowledge will generally be presumed if the usage be well established
and notorious, and '^if a person close his. eyes and shut his ears as to what is
universally known in the community by others around about him, he will
not be allowed to shelter himself under a plea of ignorance.^* Customs and
^ Lawson on Usage 53. The courts of or profession, a party to be bound by it
Kew Yoik state have construed this rule as must be shown to have knowledge or
tono'ice nore strictly, it would seem, than notice of its existence Hill «. Ins. Co.,
have otluT jurisdictions. In Sipperly v. 10 Hun 26 [1877]. This, it is submitted,
Stewart, 50 Barb. 62 [1867], it was held is not generally the accepted law.
that proof of a usage or custom of a par- ^ Dyer v. Sutlierland, 75 III. 583 [1874].
ticuhii- locality or business is not sufficient ' Dwyer v. City of Brenham, 70 Texaa
to charge a party to a contract, where 30 [1888].
there is no proof that he ever knew or heard * Williams v. Gilman, 3 Greenl. 276.
of such a usage or custom. s Greenl. Evdce. 292-294.
A later case has held that when the * Lonegran v. Stewart, 55 111. 44 [1870].
usLgeis with regard to a particular trade ' Lyon v. Lenou, 106 Ind. 567 [1886].
538 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§613.
usages of trade are supposed to enter into and form a part of all contracts
where the usage or custom prevails, in reference to the matter to which the
contract relates/
613. A Usage must be Moral.— This statement should require no com-
ment ; it should be evident that a court of justice, the office of which is to
preserve the rights, peace, and morals of a community, would not tolerate
the introduction by implication of immoral practices into an agreement."
614. A Usage must be Reasonable, Lawful, and in Keeping with Public
Policy. — Customs and usages often are, and may be, contrary to certain
maxims or rules of the law, but courts are very reluctant to admit them,
and when they can justify the exclusion of a usage they are likely to do so.
There can be no general definition or description of what will be regarded
as unreasonable; regard may be had to legal decisions of the past to deter-
mine what are and what are not reasonable. If a usage has become estab-
lished, uniform, and is generally adopted, it is fair to presume that it is
reasonable. If it were unreasonable, prudent men would not continue to
sacrifice their rights and interests to maintain it, and it would not be estab-
lished.' When usages are fully established, courts feel in duty bound to
regard them as reasonable, but they do nevertheless frequently declare them
unreasonable when they are too absurd for recognition, contrary to public
policy, or tend to violate some fixed principle of law. Of course, a man
may contract with reference to foolish, absurd, and unreasonable usages,
and load himself with obligations of the most oppressive and onerous char-
acter, and if he has knowledge of the obligations he is assuming, a court
will not interfere.* Matters of inconvenience will not render a usage
unreasonable, while public convenience will often render an apparent bad
usage valid.
615. An Unreasonable Practice cannot Become a Usage. — A custom in
other counties for a person who undertakes to survey, subdivide, and map
lands to employ competent surveyors as substitutes to perform the work
is too unreasonable to become incorporated into a contract without it be
shown that both parties were acquainted with the custom. Such a custom
was held to be unreasonable as between a court and a contractor. That it
was the duty of the court to select such agents as could assist them in th&
discharge of their functions. That as such agents [surveyors] have neces-
sarily to exercise judgment and discretion in the performance of the work
assigned them, the duty of making such selections should not be delegated,
and therefore a custom to do so was unreasonable.^
A custom to give bonds for the payment of work done upon public
buildings, on which the law does not give a mechanic's lien, seems to have
been regarded as reasonable by the court, and it seems it may be introduced
» Doane «. Dunham. 79 111. 131 [1875]. * Lawson on Usage 68, 69.
' Lawson on Usage 58. ^ Gano v. Palo Pinto Co. (Tex.), 8 S. W.
» Lawson on Usage 68. Rep. 636 [1888].
§ 615.] CONTRACT STIPULATIONS. 539
into a bid in which no reference has been made to it if proven to be a gen-
eral and uniform usage among builders engaged in doing public work/ *
Usage and custom cannot determine the mode of executing a contract.
Statutory laws require that deeds and wills and certain other instruments
shall be executed in writing and with certain formalities. It cannot be
doubted but that they must be followed, any usage to the contrary not-
withstanding. In the absence of any statutory law, contracts may be exe-
cuted in any manner that fulfills the conditions of a binding contract.
Their binding force will depend upon the law of contracts and not upon
customs. The fact that contracts for insurance and for the construction of
works are universally made in writing and sealed and witnessed does not
render it necessary to so execute them to make them valid and binding."
Usage will not justify the use of words in a contrary sense from that
given them by statute. Standards of numbers, weights, measures, are
often determined by statute, and when so determined, evidence of a differ-
ent standard will not be admitted. If other means of comparison or
measure are intended it must be so specified in the agreement. Therefore
when the statute declares what shall constitute " a bushel," " a quarter,"
"a pound," "a ton," or '^a foot," or "a chain," and these words are
employed, it is to be understood that statute measure is intended, and that
evidence of a usage of some other measure will not be admitted.' A usage
to allow several days of grace is held a good usage, and a promise to pay a
note in sixty days is therefore construed to pay it within sixty-three days,
but not if there be no statute abolishing days of grace, as in New York
state.* A usage will be held bad if it is contrary to a rule of law. Thus
an act of legislature enacting that 2,000 pounds shall make a ton cannot be
controlled by a usage in a particular business making 2,240 pounds a ton.'
Evidence of a usage or custom, though it establish a rule different from, but
not in contravention of, the general law of the land has been held admissible.*
The common-law right to support to the surface of the ground cannot be
questioned because of a usage in the locality to mine coal under the land
without taking precaiitions to prevent. its settling.' A custom contrary to
such a right is unlawful, unreasonable, and invalid." A custom to pump
foul water from a coal mine and to allow it to flow into natural water-
courses and pollute them, is not only unreasonable but unlawful.'
A custom, in making surveys for location of government lands granted
' Park 'G. Viernow, 16 Mo. App. 383 (Iowa), 67 N. W. Rep 276.
[188o]. ' Jones y. Wagner, 66 Pa. St. 430 [18701'.
2 Lawson on Usage 82. « Coleman v. Chadwick, 80 Pa. St. 8f
8 Jolinsnn v. Burns (W. Va.), 20 S. E. [1875]; accord, Horner v. Watson, 79 Pa.
Rep. 686; and see Lawson on Usage 454. St. 248 [1876].
4 Bank t). Filzhugh, 1 Har. & G. 239. » Pa. Coal Co. v. Sanderson, 94 Pa. St.
** Godcharles v. Wigeman, 113 Pa. St. 302 \\Q^0\, following Sanderson v. Pa. C.
431, and see 25 Pa. St. 114. Co , 86 Pa. St. 401; but see Jacob v. Day
« Milioy V. Chicago, M. & St. P. Ry. Co. (Cal.), 44 Pac. Rep. 243..
* See Sec. 174, supra.
640 ENOINEERINO AND AliCHITECTURAL JURISPRUDENCE. [§ 616.
to settlers, to include more land than the warrant actually called for is a
fraud upon the government, and therefore bad. ^ Likewise a custom for
surveyors in surveying pre-emption claims to receive one-half of the land
for surveying, obtaining the warrants, and paying expenses, was held
unreasonable.' A custom or usage that justifies a builder in building a
house in a reckless and unworkmanlike manner when his contract requires
him to build it in a workmanlike manner, is unreasonable and cannot be
recognized by our courts."^
Proof of a custom is not permissible to enlarge the powers of officers
whose authority is defined by statute."
616. A Practice that Subverts Justice and is Contrary to Good Morals
is not a Usage. — The usage must not tend to subvert justice nor be con-
trary to good morals and sound public policy. Customs or usages which
would have the effect to relieve a party from the duties and obligations
which the law would otherwise impose upon him are not allowed to prevail,
unless the actual assent of the party is secured for their observance, or they
are of so notorious a character as reasonably to lead to the conclusion that
he must have known of their existence and intended to assent to them.
Even then it was held they must not be unreasonable nor positively
unlawful.^
Any practice, therefore, that strains the fiducial relations of a principal
and his agent, or that brings the interests of the two in conflict, will be
held bad. It is a principle of our law that a person [company] in employ-
ing an agent [engineer] to select, buy, or sell property or materials bargains
for the disinterested skill, diligence, integrity, and zeal of the agent for his
[its] own exclusive benefit. The agent [engineer] is expected to act with a
sole regard to the interests of his employer. It is submitted that the
culpable custom practiced by agents and by some engineers of accepting
percentages of the price paid for materials and machinery selected or pur-
chased by or through them could not be sustained on the plea of its being
a custom for companies to pay it.' A custom the effect of which is to array
the interests of an employee or agent against those of his employer cannot
be reasonable. If such a usage were permitted, the interests of the two
would be in conflict, and the agent [engineer] be tempted to promote his
own interests, to the detriment of his employer's interests. The law does
not permit an agent (engineer) to occupy such an essentially inconsistent
relation, and therefore will not recognize such an unreasonable custom.''
' Huston V. .IcArthur, 7 Ohio 70. [1867],
' Lawson on Usage 74. ^ Diignid v. Edwards, 50 Barb. 288
3 Anderson v. Whitaker (Ala.). 11 So. [1868]; Minnesota Ily. Co. v. Morgan, 53
Rep. 919; but see Graham v. Trimmer, 6 Barl). 217
Kans. 231. ' Diplock v. BUickbnvn, 3 Campbell 43
4 Walters v. Senf (Mo. Sup.), 22 S. W. [1811]; Lawson on Usage, 479, 480; and
511; sewWg, Butler 1). Charlestown, 7 Gray see Louisville &, N R. Co. v. Barhouse
(Mass.) 12. (Ala.), 18 So Rep. 534.
Dugnid V. Edwards, 50 Barb. 288
§ 616.] . CONTRACT STIPULATIONS, 541
It is a maxim of the law that an agent cannot delegate his authority
where his personal skill is required, or where his authority is judicial in
character or discretionary, or where trust and confidence have been reposed
in him. In general all these features belong to the status of an engineer,
and it has therefore been held that a usage in a city engineer's office for
the assistants to attend to the making of estimates of work was irrelevant,
when the written contract provided that the work should " be measured by
the city engineer ''; that although the making of the estimate undoubtedly
required the help of assistants, yet that they must have acted under the
city engineer's direct personal supervision, and he must have had personal
knowledge of what was done/ The same decision should be reasonably
expected with regard to any engineer, for usage cannot be employed to con
tradict the terms of a contract or to contravene a principle of law.'' * A
case apparently to the contrary is expressed in the following: "But when
it is known that practically the chief engineer of a corporation never does
and never can make the estimates, or even verify those made by his assist-
ants, that such a thing is altogether impracticable, it must be concluded
that the parties had reference to something which was usual, or at least
possible, in such cases." ^ Although not put specifically upon the ground
of usage, it is very close to it.
A usage among architects to charge 1 per cent of their own estimated
cost of a structure in payment for preliminary sketches and estimates of
the same was held to be unreasonable; and no such contract on the part of
a customer could be implied unless he was made acquainted with such a
custom and had assented to it. The decision was based upon the same
principles as in preceding cases, viz., the conflict of interests of the archi-
tect and his employer, and the impossibility of making an estimate from
such inadequate preliminary sketches; that such a usage, if maintained,
would put every employer at the mercy of an architect's extravagance in
taste and license of guessing at estimates which have nothing to measure or
determine them.* Evidence, however, has been admitted to prove by cus-
tom that an employment of an architect to make plans and designs for a
building carried with it an employment to superintend its construction,
and it was held that it could be proved by contractors and builders as well
as by architects.' But a contract to pay an architect 10 per cent commis-
sion will not admit evidence of a custom to pay a different per cent." In a
case where prizes are offered for the best plans, with cost, etc., of a build-
ing, and a prize is awarded to an architect, with a notice that the award
'Palmers. Chirk. 106 Mass. 373, 197; contra, Knight v. Norris, 13 Minn.
"^ Lawson on Usage. 465. 473; Irving «. Morrison, 37 C. P. Up. Can.
» Herrick v. Belknap, 27 Vt. 681. 242.
4 Scott t> Maier, 56 Mich. 554 [1885]; ^ Wilson «. Bauman. 80 111 493 [1875].
and see Oilman v. Si evens, 54 How. Pr. * Lonuegan v. Courtney, 75 111. 580.
* See Delegation of Duties, Sees. 499-507, supra. ,
542 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 617,
should not be considered as an adoption of his plans to build from, it was
held that' evidence was properly excluded of a usage or custom among
architects that, in absence of special contract, the adoption of an architect's
plans included a contract to superintend the construction of the building,
or of a usage that when prizes are offered for plans that the drawings
remain the property of the architect even after the prize has been paid, and
if afterwards adopted as the plans to build by, that an additional price was
paid for'the drawings/ *
A custom of architects to employ engineers to estimate the quantities of
a building to be erected was held valid, so as to render the employers of the
builder liable to the engineer for his work." This was an English case, and
there is the additional fact that the duty of an English architect seems to
be to draw plans only and not to estimate quantities, and that the proprie-
tors were chargeable with notice of that fact, and that they knew the esti-
mates must be made out by some one.^ A contractor who furnishes men
by the day on jobs may charge 25 or 50 cents per day more than he pays,
where such is the custom among contractors."
Under a contract to furnish granite (cut and dressed) according to the
plans and specifications of the architect, and to do all the fitting and
rebating necessary for a sum named, it was held that the contractor was
required to furnish the necessary patterns which were incident to the per-
formance of the work, as it was necessary to have tools and workmen ; that
the contractor actually had prepared the patterns; it was obvious that it was
not necessary that the owner should furnish them to enable the contractor
to do his work. By the legal construction of such a contract, the contractor
was to furnish the patterns. A usage that the owner should pay for them
would be contrary to the terms or construction of the contract, and there-
fore would not be valid. ^
On an issue as to whether a hiring was for a year or by the month, it is
not competent to ask a witness whether there was a custom with reference
to the terms of such hirings in the vicinity."
617. When usage will be Admitted to Explain Contracts — It Cannot
Contradict Express Terms of Contract. — If a usage be general, established,
certain, uniform, and reasonable and not opposed to well established prin-
ciples of law, the parties to a contract are presumed to have contracted
with reference to it pertaining to matters concerning it, unless the contract
is so explicit as to preclude such a presumption. A custom cannot be per-
' Tilley «. City of Chicago, 103 U. S. 155 "jyicDonnell v. Ford (Mich.), 49 N. W.
[1880]. R. 545 [1891].
2 Moon '0. Guardians of Poor, 3 Bing. * Potter ??. Smith, 103 Mass. 68; Davis©.
N. C. 814. GalhiDe, 111 Mass. 121 [1872].
^Acc<yrd Taylor v. Hall, 4 Ir. R. C. L. econnell v. Averill (Sup.), 40 N. Yi
467. Supp. 855.
, * See Sec. 814, infra.
§ 618.] CONTRACT STIPULATIONS. 64?
mitted to prevail against the unqualified and unequivocal terms of a written
■contract.*
If the contract specify the mode or system of measurement by which
the work is to be estimated, it cannot be varied or contradicted by evidence
of a custom. The writing must necessarily have been regarded as express-
ing the contract and intention of the parties. Usage is admissible to inter-
pret a contract, and to ascertain the meaning of the parties, where it can be
4one without violence to the terms used. As a matter of course, a custom
gives the meaning of a written contract different from that which it would
have been in the absence of a custom. It would have been very ineffective
and anomalous sort of a usage which would be without effect in the acts
-and contracts of parties. It may be seen from cases given how far customs
have been permitted to affect and control written contracts, without being
regarded as violating the terms of the written instrument. In the case of
days of grace at a bank, the written contract was to pay a sum of money
sixty days after date, and yet the custom was held good by which the money
was not payable until the sixty-fourth day, a custom repugnant to the
general law of the subject, and to the literal meaning of the words of the
■contract."
Extrinsic evidence is admissible to show that the parties to a written
agreement have contracted upon the basis of a common usage or custom
applicable to the trade or business in which the contract is made; whereby
they have impliedly consented -to be bound by certain usual or customary
terms and conditions not mentioned in their agreement, or have accepted
-certain terms and conditions used in their agreement with a special
meaning.' In contracts as to the subject-matter of which a known
usage prevails, parties are bound to proceed with the tacit assump-
tion of these usages ; they commonly reduce into writing the special par-
ticulars of their agreement, but omit to specify those known usages which
^re included as of course mutually understood; evidence therefore of such
usages is receivable. The contract, in truth, is partly expressed in writing,
partly implied or understood and unwritten."
618. Usage can be Employed to Explain an Ambiguous Contract. — Usage
of trade or business is often proved to show the actual intent and purpose
of the parties when the stipulations in contracts are not clear.^ It cannot
subvert a positively unambiguous contract," though it may be admitted to
explain ambiguity in a contract but not to contradict the terms of an agree-
ment.'' The proper office of a custom or usage is to explain and ascertain
ihe intent of the parties; it cannot be received in opposition to any prin-
* Mayer v. Lawrence, 58 111. App. 194. ''Brown «. Byrne, 3 E. & B. 715; Leake's
•Patterson v. Crowther (Md. Ct. App.) Dijrest of Contracts 196.
[Jan. 1889]. ^ Leach «. Beardslee, 22 Conn 404 [1853].
8 Leake on Contracts 196; Hontton t?. « Bank «. Bissell, 72 N. Y. 615 [1878].
Warren. 1 M. & W. 475; Spartali v. ' Sweet «. Jenkins, 1 R. L 147 [18401.
Benecke. 10 C. B. 223.
^44 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 618.
ciple of general policy, and must not be inconsistent with the terms ot
agreement between the parties/ If there be no uncertainty as to the terma.
of the contract, usage cannot be proved to contradict or qualify its provi-
sions. Usage is only resorted to for the purpose of ascertaining with greater
certainty the intent of the parties, not to contravene their express stipula-
tions (not to contradict).'
If the usage has been certain, uniform, and generally acquiesced in, ini
the place where the contract was made, the contract may be interpreted
according to the usage, even though it has been practiced but seven years,,
and although one party has not had actual notice of its existence.' Evi-
dence of custom is ^wadmissible, under a building contract, to contravene
its implied legal construction that the work shall be done and material fur-
nished in a reasonable time.* The phrase, "actual stone measured in the
wall," has been held to have no necessary legal signification, and that,,
therefore, parol evidence of its trade meaning was admissible.' When a.
contract to lay brick at a specified price per thousand, according to meas-
urement, is modified by a subsequent agreement to pay a reasonable com-
pensation without regard to the price originally fixed by the contract, the
question whether the openings in the walls shall be included in the meas-
urement is immaterial. The contractor is entitled to recover what his work
is reasonably worth." Kules established among brick-masons for measuring;
their work cannot be shown when they conflict with the terms of the con-
tract. Covenants are to be construed according to the plain and obvious
meaning of the terms used by a community at large, and not according to-
the terms used among brick-masons, or any other particular class of men
who may understand them in a different sense.' Where a building contract
in express terms calls for doors of a certain thickness, evidence of a custom
among carpenters to use doors one eighth of an inch less in thickness whert
doors of such thickness were specified, due to the fact that the lumber
from which the doors were manufactured lost that much when dressed,.
is inadmissible to vary the contract, there being no evidence that the cus-
tom was general in its application or that the owner of the building had-
knowledge of it.*
The true ground upon which usages and customs may be shown to assist
in the construction of a contract is upon the presumption that the parties,
to be affected by the usage were acquainted with it or are in some way
chargeable with notice of it."
»Foye V. Leighton. 22 N. H. 71 [1850]; 23 N. Y. Supp. 880.
TJlmer v. Farnsworlh (Me.), 15 Atl. Rep. ^ Brennemau v. Bush (Tex.), 30 S. W.
65 [1888]; Seavey v. Shurick (Ind.). 11 N. Rep. 699.
E. Rep. 597 [1887] ; De Cernea v. Coruell, « Ills Ed. Association u. Strander, 78^
20 N. Y. Supp. 895. Ills. 35 [1876].
'Bradley v. Wheeler, 44 N. Y. 495 ^ Pavey ©. Bnrch. 3 Mo. 314 [1834].
[1871]. 8Katon v. Gladwell (Mich.), 66 N. W.
> Lowe V. Lehman, 15 Ohio St. 179 [1865]. Rep 598.
* M»r©wski v- R#hiig (Com. PI. N. Y.), ^ Martin v. Maynard, 16 N. H. 165
§ 619.] CONTRACT STIPULATIONS. 545
619. There must be Ambiguity, which duestion the Court must De-
cide.— The courts declare there must be ambiguity, and that the parties
must have known of the usage and have contracted with reference to it, or
that the usage must be establislied and not casual, uniform, and not varying^
general and not personal, and so notorious as to raise a fair presumption
that the parties knew of it.' Furthermore, they must not be unreasonable,
contrary to established rules and maxims of law nor against sound public
policy. This is no doubt the law generally; but as to what language will be
construed as ambiguous, or how much room there must be for misunder-
standing between parties, is hard to determine.
The court must determine if ambiguity exists, or if the contract is
sufficiently explicit, without the admission of evidence of a custom to con-
trol it.'
As a general rule the judge is to interpret the meaning of the contract;
but the rule is frequently departed from when ambiguity exists or the con-
tract relates to scientific or mechanical arts. In such cases it is common
and prudent to admit the opinions of experts to explain the contract. The
opinions of witnesses who are familiar with such work, and in the habit of
making and executing such contracts, are almost indispensable to assist the
court in the proper construction of the contract.'
It is not competent for a witness familiar with the usage to testify as
to what construction the contract bears.* If the contract has relation to
a trade, profession, or business of a technical character, and is expressed in
terms of art, or in words having a technical or peculiar sense in such trade,
profession, or business, resort must be had to the testimony of experts or
those acquainted with the particular art or business to which the words re-
late; and when such testimony is conflicting, the question of the meaning of
such terms and words must be referred to the jury;* for while it is the
province of the courts to construe contracts, yet where the meaning of
the contract is obscure and depends upon facts aliunde in connection with
the written language,, the question of construction may be one of fact for
the jury.' It is the province of the jury to decide what an oral contract is,
where the evidence is conflicting as to the intent of the parties to such con-
tract, and as to its terms and it is error to withhold such questions from the
jury.'
It is error to exclude evidence or deny a question put to the owner as to
whether he had any knowledge of the custom claimed.*
[1844] ; Union Stock-yards Co. ■». Westcott * Collyer v. Collins, 17 Abb. Pr. 467.
(Neb.), 66 N. W. Rep. 419. * Rjiilroad Co. v. Rust, 19 Fed. Rep. 289.
1 Sipperly D. Stewart, 50 Barb. 62 [1867], « Coquillard v. Hovey (Neb.), 37 N. W.
and preceding cases. Rep 479.
2 Dawson k Kittle, 4 Hill 107; Milrov v ^ Patten v. Pancoast (N. Y \ 15 N. E.
Chicacro, etc., R. Co. (Iowa), 67 N. "W. Rep. 893: Harris v. Kelley (Pa.). 13 Atl.
Rep. 276. Rep. 503 [1888].
» Reynolds v. Jordon, 6 Cal. 108 [1856J. ^ ^yaUg ^ Bailey, 49 N. Y. 464 [1872].
d46 ENGINEERING AND ARCHITECT URAL JURIISPRUDENGE. [§620.
When the court has determined that ambiguity exists, it may construe it
according to a custom without its being proven if it is established so as to
leave no doubt of its existence.' The court decides if the usage be sufficient
to bind the parties, what length of time, at what places, and to what degree
of uniformity it must have been observed to establish it; '' it decides if the
usage be reasonable, lawful, and according to public policy, and if the evi-
dence of the usage be admissible." When the court has declared such a usage
reasonable, lawful, etc., and that the terms of the contract do not preclude
the idea that the agreement was made with reference to the usage, it is then
left to the jury to determine whether the time, places, and uniformity equal
that required by law, as laid down by the judge, and also if the parties entered
into the agreement with reference to the usage." Generally the jury are to
determine the effects of evidence of usage, given to control the construction
of a contract.^
In order to introduce evidence of a custom and make it a part of the
contract sued on, it must be pleaded.*
INSTANCES WHEEE USAGE HAS BEEN ADMITTED TO EXPLAIN CONSTKUC-
TION CONTEACTS.
620. Instances in Brickwork. — Cases may be cited showing how in-
stances have been regarded in the past, but no definite interpretation can
be laid down which will certainly be followed in the future.
In a contract '* to pay eight dollars per thousand for each thousand brick
ivhich may be laid,^' it was held that the language was sufficiently explicit
to prevail, uninfluenced by any evidence of a usage or custom of the trade,
and that no estimate should be made of bricks not laid.' A Tennessee case
holds that a contract " to pay eight dollars per thousand for bricks in the
wall," was not ambiguous, that the bricks should be counted, and that proof
of a custom to ascertain the number by wall measurement was incompetent,
but the judge continues by saying that if they could not be actually counted,
having been laid, they might adopt estimates based upon measurements.'
A contract to furnish brick at a price per thousand, "actual count of bricks
in said walls," requires that the brick shall be counted numerically and not
be. estimated by the cubic foot; " while two dollars and forty cents per thou-
sand, " wall count solid measure," was held to include the openings, as if the
wall was built up solid with brick.'* In an action for bricks sold for the
' Consequa v. Williams, 1 Peters C. C. R°p 106.
230 [1816]. "> Kendall ®. Russell, 5 Dana (Ky.) 501
2 Lawson on Usage 104. [1837].
^ /?w^ .96^ MuUiner I?. Bronson, 14 Bradw. ^ Sweney r. Thomasin, 9 Lea (Tenn.)
355 [1883]. 359 [1882].
^ Lawson on Usage 104-105. ® Lester v. Pedigo (Va.), 4 S. E. Rep.
5 Dawson «. Kittle, 4 Hill 107. 703.
« Anderson v. Rogge (Tex.), 28 S. W. ><> Lougt). Davidsou,101 N. C. 170 [1888].
§ 620.] CONTRACT STIPULATIONS. 647
construction of a building, where the contractor claimed that they were sold
to be " measured in the wall," and the owner that they were to be counted
in the wall, it was held that it might be shown what the expression
"measured in the wall" meant, and that the measurement allowed 21^
bricks to a cubic foot of wall.*
These cases seem to be the exception rather than the rule. In an Ohio-
case [18C5], where bricks were to be furnished and laid ^' by the thousand,"
a dispute arose as to how the bricks should be counted, and evidence was
admitted of a local custom to estimate the number by wall measurement,,
under a uniform rule based on the average size of a brick, allowing a slight
addition for extra work and wastage, deducting openings in walls, but not
for openings in chimney nor jambs. Such a custom was held not to be un-
reasonable. The court said: " We are unable to see anything unreasonable
in the custom. The contractor was to furnish the brick and materials, and
to lay them up by the thousand. The contract contained no specifications
of the dimensions, shape, angles, openings, or arches of the wall, or of the size
of the brick. It does not require a mason to know that the value of the-
work and materials depend much upon these and such like conditions if
they are to be paid for by the numerical thousand. Again, the brick are to
be furnished and laid up. Where and how will you count them ? At the
kiln, on the ground, or in the wall ? Who will lose the breakage in the
transportation and handling and the waste of filling them in the wall ?
Some fair measurement of the wall would seem to be the more reasonable
method, and we cannot say that this method was not a fair one. It slightly
increased the estimated number of bricks in the wall, it is true, by making
small additions for extra work, and extra waste of bricks at angles an5
openings, and the rule of measurement adopted fixes upon an arbitrary and
uniform dimension for the average size of brick, which may vary slightly,^
but cannot vary much from their average size. All this seems to be reason-
able." ' An earlier case had allowed the number of bricks in a pavement
to be computed by allowing a given number to the square yard, according
to the usage among pavers."
The same subject came up in another case, and although the custom was
not established for want of a sufficient number of witnesses, its reasonable-
ness was not questioned. It was a contract for brickwork "at
dollars per thousand," and was held to be by kiln count, the usage not having-
been sufficiently established, only one witness having testified to it.* A
Kansas case held that parties to a contract were presumed to contract with
reference to a uniform and well-settled custom or usage pertaining to matters
concerning which they made a contract, and that therefore a general custom
of ascertaining the number of bricks in a wall could be proved when the-
> Welsh V. Huckestein (Pa. Sup.), 25 Atl. [1865].
Kcp. 138. » Pittsburgh v. O'Neill, 1 Pa. St. 342
«Lowe V. Lehman, 15 Ohio St. 179 ^ jyxaniQ v. Hall, 26Mo. 386 [185S].
548 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 621.
contract had not prescribed a method of nleasuring them.' A contract foi
100,000 brick to be counted and enumerated according to the custom of
bricklayers was held to have been executed by the delivery of 40,000, which
when laid in the wall made 100,000 by mason's measurement, counting the
openings, etc., as being laid solid." If the contract is silent as to thtr
manner in which the number of bricks is to be determined, parol evidenctj
will be received of a custom/
621. Instances in Stonework. — When no rule has been specified in a
contract for the construction of stone piers, the parties are bound by any
proved custom for measuring the cubic contents of the work, but a mere
local and recent usage of trade will not justify a claim for extra measure-
ment."
A custom has been proved and accepted that in measuring stonework
doors and windows might be measured solid and corners twice,* and carved
work might be measured at one and one-half times its measured length.'
The word " perch " in stonework is a term with many meanings. It often
depends upon the usage or custom of the trade at the place where the par-
ties reside or are doing business, unless the term and the method of ascer-
taining the number are expressly stipulated in the contract. When a cer-
tain price is to be paid *' per perch complete/* it may be shown that there is a
well-known custom among stone-masons in the county by which they were
•entitled to compensation for not only the actual contents of the wall, but
credit for all openings therein, and fifty per cent, additional for all such
masonry built in a circle or curve.' Under a contract to build the walls of a
house *' for the sum of three shillings per superficial yard of work nine inchea
rthick, and to find all materials, deducting for lights," — the lower part of the
walls to a height of eleven feet were of stone, two feet thick, the remainder
■of brick fourteen inches thick ; evidence was admitted to prove a usage of
Guilders at that place to reduce brickwork for the purpose of measurement to
mine inches, but not to reduce the stonework unless exceeding two feet ia
thickness.*
This disposition to interpret contracts according to the usages of the
trades in which they are made, is such that two different modes of measure-
ment have been allowed where the one measurement seemed almost to have
l^een made the basis of the price of the other. Thus where a mason contractor
agreed to do the masonry of a building according to the plans and specifica-
tions for the sum of two dollars in addition to the price of the rock per
perch, he was allowed mason's measurement, and to recover for the openings
of doors and windows as if they were solid, and to count corners twice,
' Smytlie v. Parsons (Kans ), 14 Pac. 876 [1890].
Rep. 445 [1887], 37 Kans. 79. ' Haynes v. Baptist Ch., 88 Mo. 285.
2 Brown «). Cole, 45 lowfi 601 [1877]. "Patterson v. Crowther, 70 Md. 134
3 Richlands, etc., Co. i). Hiltebcitel (Va.), [1889].
)82 S. E. Rep. 806. ^ Patterson v. Crowtber, supra.
* Corcorau v. Chess (Pa ), 18 Atl. Rep. ® Lawson on Usage, 393.
I 621.] CONTRACT STIPULATIONS. 549
which allowed the mason contractor 30 per cent, more a perch than the
quarrymen were paid for by their measurement.* A similar construction
was given where a builder had taken a contract to erect a building and had
bought brick at seven dollars per thousand to be used therein. While the
same were being delivered he sublet the masonwork by contract, by which
they agreed to take the brick then being delivered at seven dollars per
thousand and to have the same laid up in the wall at ten dollars per thou-
sand, including the prices of the brick at seven dollars per thousand, the
brickwork to be measured according to brick measurements in the walls.
It was held that the true construction was that the subcontractor should
have three dollars per thousand for his work measured in the wall, and not
ten dollars per thousand, deducting seven dollars per thousand for the brick
by kiln count.' In a contract to pay "seven dollars per thousand for
making and laying brick, counting the neat brick in the building," it was
held on appeal an error to have determined a rule of measurement upon
the testimony of masons that the rule known and established among them
ior measuring their work and ascertaining the number of neat brick in a
building was to ascertain the number of cubic feet in the wall,
by multiplying the aggregate length of the walls of the building over
:all, counting corners twice, by the height of the story, and that product by
the thickness of the wall, and then multiplying this cubic content thus ascer-
tained by 22^ bricks to the cubic foot, the supreme court holding that
the contract must be construed according to the plain and obvious meaning
of the terms used by the community at large, and not according to their
terms as used by brickmasons.^
To settle disputes as to how masonry shall be measured, it has been held
•competent to show that it was the custom of masons to measure around
walls on the outside and to multiply this length by the thickness and
height to ascertain the volume, instead of taking the middle or inner meas-
urements.* A contract to pay two dollars and seventy-five cents per percb
ior the first ten feet of work, and an increase of twenty-five cents per perch
ior each additional ten feet, and thirty-eight cents per superficial foot for
dressed ashlar set in the wall, was interpreted according to the testimony of
-several masons as to the usage of measuring stonework, to entitle the
contractor to recover thirty-eight cents stipulated for the dressed ashlar in
addition to the price provided for laying the same in the wall.* " Eip-rap
wall at fifty cents per cubic yard " was held to mean rip-rap after it was
fitted and laid into wall," and not to mean the amount of stone quarried or
excavated.
' Fitzsiramons v. Christian Brothers, 81 accord, McCullough -u. Ashbridge(Pa.), 26
Mo. 37 [1883]; accord, Haynes v. 2d Bap. Atl. Rep. 10, Perches.
€b., 88 Mo. 2*^5. ^ Shutte v. Hennesey, 40 la. 352 [1875].
2 Miller v. Bolto. 79 111. 535 [1875]. « Wood v. Vt. Central R. Co., 24 Vt. 608
» Pavey v. Biirch, 3 Mo. 314. ^1852].
*Ford V, Tiirell (Mass.), 9 Gray 401;
550 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 622.
The interpretation of technical terms of a trade depends upon their
meaning as employed by custom and long usage. Evidence of usage has been
admitted to explain the disputed points in a written contract, when evidence-
of what was said or understood at the time the contract was entered inta
has been refused. Thus in a contract for masonry at a specified price per
foot, '' the face of the work that shows to be measured and none else," evi-
dence was admitted to show in what sense the words were used and under-
stood in the trade generally, but evidence of what was said before or at
the time the contract was made was excluded. " Face of the work " waa
therefore held in accordance with the trade usage to include not only the-
perpendicular walls exposed, but also the copings and the rises and treada
of the wings or retaining walls.' A contract to pay "65 cents per cubic
foot for all stone when the quarried dimensions do not exceed 20 cubic feet in
each stone and one cent additional for every cubic foot of those having such
dimensions exceeding 20 feet," was held to be a contract to pay 65 cents for
stones whose dimensions exceed 20 feet, and one cent additional for every
cubic foot of the entire stone.'' In a contract to deliver marble *' furnished
and ready for setting," the meaning of these words as used by marble-cutter&
was proved by witnesses.^ So it may be shown that an order for marble
slabs of a specified thickness, means by custom that they shall be of the-
thickness stated when they come from the saw, and does not require them
to be of such thickness when finished.*
When evidence of the usage of the trade has failed to show any uniform
rule of measurement by which the written contract may be construed, evidence
has been admitted to show what was agreed or understood between the par-
ties at the time it was entered into. In a written contract to furnish stone at
14.50 per perch, several standards of measurement being shown in the trade
in that locality, evidence was admitted that it was verbally agreed to furnish
the stone at 18 cents per cubic foot, and that the attorney who wrote the
contract, of his own notion, had converted feet into perches of 25 feet each^
as it enabled the court to construe an ambiguous contract in the sense
intended by the parties.^ In an express contract to do certain work **in a
good and workmanlike manner," evidence has been admitted to prove that
the contract was made with the expectation that such materials as was com-
plained of were to be used in the job.**
622. Instances in Plastering. — The same rules and practices have been
admitted in the measurement of plastering. A very early case, [1801],'
decided that the practice of plasterers to charge an employer for half the size
» Martin v. Thresher, 40 Vt. 461 [1868]. ** Qn?vrry Co. ■». Clements, 38 Ohio St.
2 Uniied States 'v. Granite Co., 105 U. S. 587 [1883]. _ ^ «o. x .
87 [1881]. ' Graham ®. Trimmer, 6 Kans. 2dl ; out
» Myers «. Tibballs (Cal.), 13 Pac. Rep. S'^e Anderson v. Whitaker (Ala.), 11 So.
695 [1887]. Rt^P 919-
4 Evans v. W. Brass Mfg. Co. (Mo.), 24 Mordan v. Meredith, 8 Yeates 318
8. W. Hep. 175. [1801].
■ . *S6e Sees. 253-258, suprd.
§ 623.] CONTRACT STIPULATIONS. 551
of the windows and doors at the price agreed on for work was unreasonable
and bad, because it was charging for work and materials never furnished.
The case has been practically overruled by more recent cases. A contrary-
rule has been held in New York, where it was held not to be an unlawful or
unreasonable usage to charge for the full surface of the walls, without any
deductions for cornices, base-boards, or openings for doors and windows, in
a contract to pay a specified sum *' per square yard " for plastering, when
it was proved that the usage was uniform, continuous, and well settled.
Such a usage was held a just compensation for the extra trouble, care, and
skill required to plaster about the frames of doors and windows, and along
the edges of base-boards and cornices.^
A Kansas case of about same date admitted evidence of such a usage to
determine the amount of plastering done." Under a contract to do mason-
work, the contractor may introduce experts in the trade, to show that mason-
work does not include " plastering and whitewashing." ^
623. Instances in Earthworks — Excavations and Embankments. — If a
contract provides a fixed price for " earth excavations," the question often
arises whether the general meaning of the word could be varied by proof of
usage. It has been held that "hard-pan" was included in the term; that
if its meaning could be changed, the usage must have been shown to be
uniform, general, and presumably- known to the parties, not a local, partial,
or personal usage.* Under a contract for excavation of earth at a fixed rate
per cubic yard, if it can be shown that among contractors and engineers
that the material excavated was " hard-pan," or was a material known and
recognized as entirely distinct from common earth, and that it is customary
for contractors to receive extra compensation for excavating such materials,
the contractor may recover what it is reasonably worth to excavate it.^ A
contrary rule seems to have been held in a Massachusetts case, where the
court refused to admit evidence to prove that the term "earth excavation'*
did not include the excavation of rock.® The custom must not vary the ob-
vious meaning of the written contract. If a contract fixed a price per cubic
yard for excavations, and stipulates that no extras shall be allowed, a usage
to the contrary w^ill be irrelevant.'^
Where a contract provided that "the measurement of the quantities will
usually be made in the cuts or pits from which the material has been
taken," and the engineer, whose determination of the quantities was to be
final and conclusive, measured the pit from which excavations had been
' Walls 'G. Bailey, 49 New York 464 Y. 316 ; see also Currier 'o. B. &M. R. R.,
[1872]. . . 34 N. H. 498 [1857] ; Nesbitt v. L., C. & C.
2 Graham v. Trimmer, 6 Kans. 231 R Co., 2 Speers 697, and Morgan v, Bir-
[1870]. nie, 9 Bing. 672.
' Hiffhton V. Dessau (Com. PI.), 19 N. Y. * Sbepliard v. St. Charles W. P. Rd. Co.,
Supp. 395; Cassidy v. Fonthan, 14 N. Y. 28 Mo. 373 [1859].
Supp. 151. « Braney v. Town of Millbury (Mass.)^
* Dickinson v. City of Pouglikeepsie, 75 44 N. E. Rep. 1060.
N. Y. 65 [1878] ; Sherman v. Mayor, 1 N. ' Phillips v. Siarr, 26 Iowa 349.
552 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 624.
taken, the court held that the contract and specifications showed the
measurements were not to take place in the cuts or pits in all cases, that
•ambiguity existed, and that the exception would have to be determined by
outside testimony, by usage, or by the practice of the company in like cases.
And it further held that the evidence was sufficient to warrant the conclusion
that it was not customary to measure the cuts or pits when solid rock was
the material, and that the contractor was therefore entitled to embankment
measure.* In a contract for the excavation of a ditch, where nothing is
said as to how the estimates shall be made, a custom or usage by which
such work is usually measured may be shown to define the intention of the
parties."
Under a contract to excavate earth and rock, which provided that the
contractor should be paid on estimates made by the surveyor, it was held
not error to permit the contractor to prove the custom of surveyors to make
allowances when required to excavate below the depth mentioned in the
contract to reach a level, where such custom was a reasonable one, and
known to both parties before entering into the contract.'
The words "grading, excavating, and filling^' have been held ambiguous
as used in a contract to make a street grade, and evidence was admitted
to show their meaning.* If the contract be silent as to the basis of the esti-
mates to be made, testimony of a custom is admissible,* but it must not
contravene the terms or obvious meaning of the contract.
624. Ownership of Materials — Effect of Usage. — An agreement to exca-
vate and remove earth, stone, etc., from premises at a price named, was held
so ambiguous as to admit proof of a custom that the contractor should own
the materials excavated, and that in view of such a custom, the owner
should be required to pay for stone removed by the contractor that he had
appropriated." *
625. Instances in Timber and Lumber. — Evidence has been admitted to
show what deduction shall be made for hollow and pecky logs in measurement
of inch-board measure; ' and how to measure a log for its board measure —
whether by its average diameter, or by taking the diameter of the smaller
end;® and to show what " timber 12 inches heart and up" includes.' A
contract for shingles at a price per thousand may be satisfied by the deliv-
» G., H.& S. A. Ry. Co. v. Henry & « Bradbury ^. Butler. 1 Colo. App. 430.
Dilley, 65 Texas 685 [1886] ; G., H. & S. « McManus ^. Donahue, 7 Alb. L J. 411
A. Ry. Co. V. Johnson, 74 Texas 256 [1889]. [1873]; accord. Cooper v. Kane, 19 Wend.
2 Bradbury d. Butler (Colo.), 29 Pac. 386.
Rep. 463 [1892] ; citing Hastetter ». Park, ' Destrehan v. Louisiana Cypress L. Co.
137 U. S. 30 ; Robinson v. U. S., 13 Wall. (La), 13 So. Rep. 230.
363 ; and see Wood v. Vt. Cent. R. Co., 24 ^Destrehan v. La. Cyp. Lumb. Co. (La.).
Vt. 608 [1852]. supra ; see also Heal v. Cooper, 8 Me. 32.
3 Pucci v. Barney, 21 N. Y. Supp. 1099. ^McKenzie v. Wimberly (Ala.), 5 So.
4 Atlanta v. Schmeltxer (Ga.), 10 S. E. Rep. 465 [1889].
Rep. 543.
* See Sees. 265 and '601, supra.
§ 627.] ^ CONTRACT STIPULATIONS. 663
ery of two bunches of a certain size if it be shown that by custom two such
bunches are reckoned as a thousand/
A contract that requires a contractor to "clean, grub, and pile brush*'
cannot be varied by showing that it is not usual "to grub " under such cir-
cumstances, or that the job would be better not to have the grubbing done.'
626. Some General Examples of Usage.— Where a contract for the con-
struction of a sewer provides no payments shall be due "until the same
shall be fully completed, and the assessments for the same duly confirmed/*
and it was further provided that advances might be made in conformity
with the city ordinance, which allowed seventy per cent, to be paid on cer-
tificate, but required that interest should be charged on such advances
from the time of making them up to the time of final payment, the court
held that interest should be charged up to the time of the confirmation of
the assessment, and that evidence of a usage in other departments of the
city to charge interest only up to the time of the completion of the work
was immaterial.'
Contracts are not always construed literally, as is shown in a case where
specifications for a house required that " the entire walls of the building
inside and out to be painted," etc., were held not to exclude evidence to
show that it was not intended to paint the plastered walls inside, but only
the wainscoting, frames, base-boards, and doors.*
Evidence offered of a local custom, that a lease of property expired at
noon on the last day of the lease, was held on appeal admissible, notwith-
standing the fact that the law excludes the first day of a lease and in-
cludes the last day.*
Specifications for a piece of black-walnut furniture are not satisfied by %
counter made of whitewood, because it is proved to be a custom to use
whitewood in so-called black-walnut furniture."
When the price is not agreed upon the value of professional services
may be proved by usage, but the usage must be general, and not simply
what another engineer or surveyor would charge.'
627. What Usage may be Shown — Miscellaneous Examples of Usages. —
It is a vexing problem to determine when evidence of usage can be intro-
duced. Courts take different views; some that the usages and customs
should not be encouraged and that proof of them should be admitted with
extreme caution, while others believe it their duty to arrive at the under-
standings and intentions of the parties as best they may. " Lawyers and
judges desire certainty, and would have every contract and business transac-
tion in express terms and that no explanation of it should be received; but
' SontifT •». Kellraan, 18 Mo. 509 [1853]; exterior walls of a building.
Bragg V. Bletz. 7 D. C. 105. ^ Wilcox v. Wood, 9 Wend. 346 [1882].,
'Holmes©. Samuel, 15 111. 412. * Greenstein v. Barchard, 50 Mich. 434
» Fellows V. Mayor, 17 Hun 249. [1883].
^Beason v. Kiirz, 66 Wis. 448 [1886]; ' Pfeil ®. Kemper. 3 Wis. 318.
see Ittner «. St. Louis Exp. 97 Mo. 562,
654 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 627.
contractors, merchants, and tradesmen, with their many affairs and duties
pressing upon them, desire to write but little, and leave unwritten what is
taken for granted in every transaction of the kind, and, in spite of the
lamentations of the judges they are likely to continue to do so even at the
risk of litigation and occasional loss." * These conflicting views,' explain
the diversity in rules set forth in the cases as to the admission of evideiice
to explain contracts, and comprise one of the elements assisting in de-
termining whether a contract is ambiguous. It has been held that the
usage to be proved must be distinctly stated before evidence of it will
be received.^ But proof of a custom cannot be rejected because the
party did not state that he intends to follow it up with evidence of
knowledge.*
If the custom or usage be not fairly proved it should be laid wholly out
of the case/ A custom is not established where the testimony of the wit-
nesses who aver that the custom exists is met by an almost equal number of
witnesses, with equal facilities of knowing, who testify to never having
heard of such custom." There is no rule of law that a usage cannot be
established by a single witness,' but many cases have been lost by a failure
to fully establish the usage.* It is not enough to simply show the existence
of the usage; it must be shown that it is general, and that all persons deal-
ing in the business to which it applies are presumed to have had knowledge
of it and to have contracted with reference to it. This can hardly be
established by one witness."
Expert or skilled witnessess are not required to prove a usage. They,
need only have occupied such a position as to enable them to know of its
existence as a fact. Therefore it is competent to prove a usage among
architects by the testimony of builders;'" and that certain excavations
were "hard-pan" need not be proved by professors of geology, for it may
be proved by engineers and contractors or even by laborers." A person is
not competent to testify as to an alleged custom of trade unless he is
either engaged in such trade or it is shown that he knows what the custom
is." In weighing the testimony of witnesses as to a trade usage, the jury
should consider the extent to which any of the witnesses may have an
interest in the result of the litigation, which might color their evidence."
Evidence of a custom or usage will not always be received to determine
* Lord Campbell, in Humphey v. Dale, 363 [1871].
7 El. & Bl. 266. 8 Greenwich Ins. Co. ■». Waterman (C
' Lawson on Usage 20-25. C. A.), 54 Fed. Rep. 889.
» Susquehanna F. Co. -o. White & Co.. ^ Martin v. Hall, 26 Mo. 386 [1858].
66 Md. 444 [1886]; Linsley v. Lovely, 26 '<> Wilson «. Brennan, 80 111 493
Vt. 123 [1853]. n Currier v. B. & M. R. R., 34 N. H.
^•Patterson «. Crowther, 70 Md.. 124 498 [1887]: accord. Blue ■» Aberdeen &
[1889]. W. E. R Co. (N. C , 23 S E R^^i. 275.
» Linsley v. Lovely, 26 Vt. 123 [1853]. ^^ Kugelman v. Levy, 24 N. Y. Sunn.
«The Harbinger, 50 Fed. Rep. 941; 559.
Brown u Gill & Fisher, 50 Fed. Rep. 941. '» Dodge v. Hedden, 42 Fed. Rep 446
' Robinson v. Unitid States, 13 Wall. [1890].
§ 627.] CONTRACT STIPULATIONS. 655
a controversy over a price agreed upon in an express contract.* Pay for
board furnished in reliance on a custom well known to all the parties,
whereby the principal contractors each month deduct the amount due by
each laborer for board from his wages and pay such amount to the respect-
ive boarding-house keepers, was collected from the principal contractor,
and it was held immaterial that the subcontractor was indebted to the
principal contractors.' A contract providing for "the final inspection and
acceptance or rejection of railroad ties, when being distributed on the road-
bed in advance of the track," will not admit evidence of a general custom
in railroad construction by which the inspection and marking of ties con-
stituted an acceptance of them by the company.^ Under the same rule it
was held that a written contract "to pay forty-seven cents for railroad ties'*
could not be construed to mean to pay forty-seven cents for ties inspected
and classified by the railroad company as " firsts," and half that price for
those classified as "seconds." The law implies in such a contract for
materials that they shall be of merchantable quality and such as will bring
an average price, and that a different price cannot be imposed by showing
such a usage/
An agreement by stone-cutters to furnish the stone for a building
according to the plans and specifications, and to do all the fitting and
rebating necessary, has been held to impliedly require them to furnish the
wooden patterns necessary for cutting them, as they were to furnish all .
necessary tools, and evidence of a usage of stone-cutters to procure such
patterns and to recover the cost from the owner was properly refused. The
contractors having procured and paid for them without asking the owner
or architect to furnish them, they could not recover from them the price.*
A contract to perform a piece of work as good as some other job, or to
furnish a part of a machine like one in operation, as it were by sample, can-
not be modified or changed by evidence that by custom it was no part of
the contractor's craft to complete it. A foundryman who undertook to
furnish a customer a fly-wheel like one in operation, had not executed it by
delivering a casting direct from the sand without boring the hole for the
shaft. «
In contracts with mills and manufactories to do custom work for a price
agreed upon, a practice among millers to appropriate a part of the material
as culls or refuse cannot be shown. So in sawing logs at a mill, the proof
of a usage for the mill to keep the slabs was denied.'' A practice to keep
the odds and ends and culls in other work, without consent of the owner,
cannot be sustained.®
^ Wilkinson v. Williamson, 76 Ga. 163 ^ Gavis v. Galloupe. Ill Mass. 121.
[18841. 6 Martin v. Maynnrd, Ifi N. H 165.
2 French «. Langdon (Wis.), 44 N. W. ' George v. Bartlett, 22 N H. 406; contra.
Rep nil. Hewett i). Lumber Co , 77 Wis. 548.
3 Smvth V. Ward, 46 Towa 339. « Wadley v. Davis, 63 Barb. (N. Y.), 500
4 Larrowe v. Lewis, 44 Hun 2-26 [1887]. [1872].
556 ENOINEERINQ AND ARGHITEGTURAL JURISPRUDENCE. [§ 628.
A contract of sale of timber "at six cents per foot " was held to exclude
evidence of a usage to sell " on a basis of six cents per foot/' That if the^
parties had attempted to contract each with a different price in mind, they
had failed, and that the timber should be restored to the seller, or that tha
purchaser must pay a reasonable [market] price for it/
It may be shown that it is a well-known usage to make changes in pat-
terns for castings for stove-work, for the reason that the first set of patterns^
however good, will not produce castings that will go together and fit."
To excuse delay in completing a job, evidence has been admitted to show
that it was impossible to take measurements from plans and specifications
for wainscoting and stairs, and that from this fact a general custom has.
arisen to take actual measurements therefor from the building itself, and
that the parties contracted with reference thereto.'
Evidence of the practice of contractors and builders in guarding against
accidents is competent to show whether ordinnry care was exercised or
there was culpable negligence." It has been admitted to show the usage of
builders in guarding openings in floors of buildings; * to show that trains
were run according to an established practice of railroads," and that trains
were made up in accordance with an established custom.' It has been held
not error to exclude evidence of a custom of railroad companies to put
defective rails in their side-tracks; * nor can can it be shown that other
lumber dealers piled their lumber in a manner like unto one which had
fallen and injured a child. "
628. Custom of What Place Controls. — If both parties reside at the place
where the contract is drawn, then any ambiguities it may contain will be
construed by the usage of that place. When a contract is made by letter or
telegram, then it will be interpreted by the usage of the writer who first
used the disputed terms or expressions about which the uncertainty has
arisen, because the person who first introduces the words is supposed to use
them in the sense in which he understands them.
If the contract is to be performed in a certain place, and it was the evi-
dent intention to adopt the terms and usages of that place, then such
language and usage will prevail. So if goods are to be bought, or work to
be done, or land to be conveyed, it is presumed to be the intention to per-
'Wilkinson v. Williamson. 76 Ala. 163 « Kansas Cifv M. & B R. Co v. Webb
[1884]; see also Rogers v. Allen, 47 N. H. (Ala.). 11 So Rep. 888; Holmes v. So. Pac.
529, " measuring lumber." Ry. Co. (Cal.). 31 Pac Rep. 834; hut see
2 Machine Co. v Doggett, 135 Mass. 582 Louisville N. R. Co. v. Davis (Ala.), 12 So.
[1883]. Rep. 786, custom contrary to rules of com-
^Bardwell d. Ziegler (Wash.), 28 Pac. pany.
Rep. 360; and see Davis d. Galloupe, 111 ' Memphis & C. R. Co. v. Graham (Ala ),
Mass. 121 ; Sawtelle v. Drew, 122 Mass. 228, 10 So. Ren. 283.
and Sanford «. Rawlings, 43 111. 92, distin- " Lake Erie & W. R. Co. v. Mugg (Ind.)^
guished. 31 N. E. Rep. 564.
'^ Murphy «. Greeley, 146 Mass. 196 ^ Enrl v. Crouch rSnp.), 16 N. Y. Supp.
[1888], and Massachusetts cases cited. 770; nor as to a practice in guarding tires.
Minphy v. Greeley, supi'a. Pulsifer v. Beriy, 87 Me. 405.
§629.] CONTRACT STIPULATIONS. 557
form the agreement according to the usages of the plaCe where it is to be
executed ; that the currency weights and measurements of the place where
the goods are delivered will be the standards, that the trade usages of the
place where the work is executed will control, and the laws of the country
where the land is situated will determine the conveyance, so the courts
have held/ * An agreement to get out and deliver 60,000 cubic feet of timber
suitable for Quebec market was held to require the timber to be measured
according to the standard of the place named. That a usage at Quebec to
reject fractions of a foot in measuring cubic contents of square timber, to
make up for waste in handling, was not unreasonable, and the contract was
construed with reference to it." Unless special provisions are made in the
contract of sale, goods or materials bought in the ordinary course of busi-
ness, ordered from cards or circulars of the manufacturer, designating the
sizes and prices, and to be delivered to a carrier at the place of a seller, are
governed by the customs and usages of the place where manufactured and
sold as to standards of measurements and modes of finish.'
629. Certain Words and Phrases Defined.— Too much care cannot be
exercised in the use of terms of a contract, and no person should under-
take to draft an important contract who is not even himself familiar with the
usages and customs of the trades and occupations with which he is dealing
or has the counsel of some one who is informed in them.
Many words have been defined in particular instances, but whether they
would receive the same interpretation will depend upon the custom and
usage of the place and the circumstances attending each case.
Many terms employed in construction have been explained, which the
author briefly refers to.*
<■
» Lawson on Usage 111. Mass. 373. Custom to have assistants
8 Merrick v. McNally, 26 Mich. 374 measure. (Sec. 616, mfm.)
[1878]; Lawson on Usage 110, 111. " No extras to be allowed." 26 la. 349.
« Star Glass Co. v. Morey, 108 Mass. 570 " Weekly accounts." 30 L. J. Q. B. 9.
[1871]. " Deepening a ditch." Evidence admit-
4 " Black " means white. 24 Solicitors' ted as to how it might be done. 34 Conn.
J.. 522 and 689. 43.
'• Bushel " is a statute bushel. 4 T. R. ." Not less than " 10 feet does not mean
314. necessarily more than 10 feet. Anderson
" Day's work " equals ten [eight] hours. v. Meishihn, 12 Daly 149.
5Hill(N. Y.)437. "Per thousand bricks." 15 Ohio St.
" Custom to give bonds." 16 Mo. App. 179.
383. " Per foot wall." 9 Gray 401.
"Bearings." Evidence of custom to "Per thousand brick which may be
prove whether by magnetic needle or me- laid." 5 Dana 501.
ridian. 11 Cal. 194. " Neat brick in building." 3 Mo. 314.
•North," meaning of. 11 Cal. 194. "Superficial yard, 9 inches thick." 6
"Variation of needle," Judicial notice C B. (N. S.) 691.
of. Little's Cas. (Ky.) 91. "Per perch." 40 la. 352.
" Drawbridge." 21 Wall. 262. " Cord of stone," held 99 cu. ft. in wall.
" Constructive measurements." 19 Atl. Robinson v. Grimes, 33 N. Y. Supp. 291.
Rep. 71 (Pa.) " Whinstones for purposes of building.**
" Measured by the city engineer." 106 1 Car. & Kir. 541.
* See Sees. 57, 58, supra.
558 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 629.
" Face of the work." 40 Vt. 460.
"To furnish cut-stone" includes pat-
terns. Ill Mass. 121.
" Riprap per cu. yd.'' is to b^ measured
after it is fitted and laid in wall. Wood v.
Yt. Cent. R Co., 24 Vt. 608.
" Plastering jier sq. yd." 3 Yeates 318,
42 N. Y. 464, 6 Kans. 231.
Excavation ' ' per sq, yd. " means per ru.
yd. Louisville v. Hyatt, 2 B Mon. (Ky.)
,177.
" Hard-pan." 2 Hun 615, 12 Wend.
834, 75 N. Y. 65, 46 N. Y. 4^14, 15 Wend.
87, 34 N. H. 498.
" Level in mining." Lawson on Usage
S90.
" Lumber to be measured straight meas-
ure." 44 N. W. Rep. 788 (Mich.).
"The best lumber" specified, and was
held to niean the best lumber ordinarily
used for the purpose designated. Mclutire
1). Barnes, 4 Colo. 285.
" Free from knots," applied to flooring,
held to mean free from all knots, both
hard and soft. Rush v. Wagner, 13 N. Y.
8upp. 2.
"An adjustable-stern dock" held not to
require an automatically-adjustable dock.
International Dock Co. •». United States, 60
Fed. Rep. 523.
"Clean, grub, and pile." 15 111. 412.
" One thousand feet in a raft of logs"
means linear measure. 25 Pa. St. 210.
"Thousand shingles," two buncheg. 18
Mo. 509.
*'Cu. ft. square white oak." 26 Mich.
374.
" Inspecting R. R. ties." 46 la. 339.
"Measurement of tan-bark." DwightT.
Cutting (Sup.), 36 N. Y. Supp. 99.
"Timber" has been held to include
"railroad ties." Kollock v. Parcher, 52
Wis. 393. and "patterns" to include
*' ties." Lovewell v. Westchester Ins. Co.,
124 Mass. 418.
"Lumber scales." 50 Mich. 434.
"Miles," in a contract requiring a boat
to attain a certain speed on her trial trip at
sea, was held to mean " maritime miles."
Rockland, Mt. D & S. S. B. Co. v. Fres-
senden (Me.), 8 Atl. Rep. 550 [1887].
" Quarter " is a statute quarter. 6 T. R.
338.
" Tons," statute tons. Lawson on Usage
454.
"Net weight." (Mass) 31 N. E Rep.
293
"Net weight," manner of ascertaining
the .'^ame. Thompson v. Bramun (Ky.), 21
S. W Rep. 1057.
"Oriirinnl line of buildings," L. R. 2
Q. B. 528 [1867].
"In good and workmanlike manner."
6 Kans. 231,
"Timber standing." Whitty u. Dillon,
2 F. & F. 67.
"Streets" include sidewalks, gutters,
paving, etc. 76 N. Y. 174.
"Engineering purposes " has been held
to have reference only to location and con-
struction, and to permit the selection of
that route for a railroad which can be built,
operated, and kept in repair in the best,
cheapest, and safest manner. McRoberts
V. The Southern R. Co., 18 Minn, 108
[1871].
" Commencement of a building" held
to be when the excavations were begun.
Mutual B. Ins. Co. v. Rowand, 11 C. E,
Green 389; Jacobus v. Mut. B. Ins. Co., 12
C. EGieeu604.
A house has been held to be "erected "
when the walls are up and the materials
were on the ground to finish it — Johnston
1). Ewing, 35 111, 578— even though it be
not plastered nor the windows put in.
McLoughlin «. Child, 62 Ind. 412.
Work to be done "as directed," with-
out oiher explanation, was held to refer to
the directions given by the owner. Lan-
caster V. Conn. 92 Mo, 460.
An " available site " for a dry-dock does
not imply a site with good subsoil free
from quicksand. International Dock Co.
V. United States, 60 Fed. Rep. 523.
"Car-load." Good v. Chicago, etc., R.
Co. (la.), 60 N. W. Rep. 631.
" Measurement of ice in bulk." Hutch-
ins V. Webster (Mass.), 43 N. E. Rep. 186.
Arj'ilroad "between two cities," whether
it required the road to be built inside the
city limits. The Western Union R. Co. v.
Smith, 75 111. 496 [1874].
' Or " and " and " may be read " and "
and " or " wh< re it is plain that thev were
so intended, Bethman v. Harness (W. Va.).
26 S. E, Rep, 271; Dumont v. United
States, 98 N. Y. 142.
A contract to furnish a gas-engine in
place and in working order does not in-
clude its foundations, Kumberger v.
Congress Sp. Co. (Sup.), 40 N. Y. Supp.
396,
Books, etc., for reference: Lawson on
Custom and Usage, Browne's Custom and
Usage,
An article, "Admissibility of Evidence
of Usage to Affect a Wr tten Contract."
12 Sol. J. Rep. 514. 536, 562.
" Evidence of Usage to Explain the
Meaning of a Contract," 13 Leg. Obs. 161
[1836].
"Building Contracts." A Lecture by Mr.
Dodd. 13 Leg Obs. 337. Lengthy article
in Greenleafs Evidc ce 292
"Usage and Custom," 27Amer. &Eng.
Ency. Law 700.
"Implied Contracts Arising Out of the
Custom and Course of Trade." 4 Amer.
Law Reg. 192 and 5 Amer. Law Reg. 22.
CHAPTER XXII.
OWNERS LIABILITY FOR ACTS OF CONTRACTOR.
STIPULATIONS FIXING LIABILITY. EELATIONS OF OWNER TO AN INDE-
PENDENT CONTRACTOR AND TO HIS SERVANT DEFINED.
630. Provision that all Laws, Ordinances, etc., shall be Complied with,
and that Contractor shall Protect Works.
Clause: "And it is further understood and agreed that in all the
operations connected with the work herein specified, all laws, ordinances,
by-laws, rules, or regulations, controlling or limiting in any way the
actions of those engaged on the works, or affecting the methods of
doing the work, or materials applied to it, must be respected and
strictly complied with by the contractor(s), his [their] agents and ser-
vants; he [they] shall, at his [their] own cost, provide all gatekeepers,
watchmen, fencing, hoardings, strutting, shoring, bridgeways, fenders,
lights, signals, and defenses, and all other matters which may be neces-
sary or may be deemed necessary by the engineer for the due protec-
tion, security of the works, and also for the security and protection and
free passage of all vessels and craft navigating the river or harbor;
and all enclosures for materials or works, for the protection and safety
of the public, and of all buildings and property whatsoever, near to or
liable to be affected by the works, and shall sufficiently light and watch
the same when necessary, and shall properly light all the works, and
shall afford the utmost facility for public and private transit and travel
in respect of any roads, or rights of way, or rights of traffic which may
be interfered with by the execution of the works.^'
631. Provision that Contractor shall Protect "Works, Property, and Persons
from Injury.
Clause: "He [they] shall take every necessary, proper, timely, and
useful precaution against accident or injury to the works, or any of
them, or to any property, or to any person, by the action or pressure of
water, and whether the same shall arise from or be occasioned bv tides,
floods, springs, rain, streams, accumulations, disruptions, leakage, irost,
or otherwise, and also against all other accident or injury to sucr
works, property, or persons, whether from fire, tempests, earthquakes, or
from or by any other natural or artificial cause whatsoever, and whether
arising from the execution or non-execution of the works, and shall
forthwith repair, make good, and defray any loss, damage, cost, charge,
or expense by or in consequence of any accident, or by or in conse-
quence of the operations, whether negligent or not, of the contractor(s),
occasioned to the owner, city, or company, or to the said works or any
of them, or to any person Qr persons injuriously affected thereby."
559
560 ENOINEEBINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 632.
632. Provision that Contractor shall Give and Serve all Notices.
Clause: '^ He [they] shall give all notices required by any law or stat-
ute, or as directed by the engineer, and whether notice be so required^
or shall be so directed or not, shall in all cases give due and sufficient
notice to all companies, such as water, gas, railway, tramway, electric
lighting, hydraulic power, or other companies, and also to all state,
county and city officials or to their respective departments or other per-
sons and authorities having charge of the water and other pipes, or of
the drains, watercourses, embankments, and the highways, roads,
streets, foot and carriageways, pavements, and the like, previous to.
and at the completion of, any work, in order that the proper persons in
respect of the matters aforesaid may be enabled to attend and see that
the roads, streets, foot and carriageways, pavements, and the like, and
other things incident and appertaining thereto, are secured, relaid, or
reinstated in a proper and satisfactory manner ; and also in order that
the proper persons representing the water, gas, railway, and other com-
panies may be enabled to attend and secure, shore up, alter the position
of, remove, relay, and reinstate the pipes, mains, plugs, and other water
and gas or other works belonging to the city or government or to pri-
vate corporations or persons. In any and every case in which works of
shoring, or other works for the protection or security of buildings, are
necessary, the contractors shall, within a reasonable time before the exe-
cution of such works, serve due notices upon the occupiers of the build-
ings intended to be shored up or otherwise secured, and upon all other
parties entitled to notice, apprising them respectively that such works
are necessary, that the contractor (s) is [are] about to execute the same,
and will, at a time to be specified in such notice, enter upon the prem-
ises for the purpose of executing such works."
633. Provision that Contractor shall Secure all Permits, Licenses, and
shall Pay all Fees and Expenses.
Clause: "The contractors shall obtain and provide all the necessary
permits, licenses, and necessary authority from the city, county, state,
or federal government, and pay all the fees, compensations, and expenses
incident to securing the same, which is required for the proper and
lawful prosecution of the works."
634. Provision that Contractors shall be Liable for and Make Good ail
Damages to Works, Property, and Persons.
Clause: "And it is further expressly agreed that the contractors
shall make good at their own proper cost and expense all damage of
every kind which may occur by reason or in consequence of the execu-
tion of the several works comprised in this contract, whether the said
damage may occur to any public or private ways, or any property, work,
or thing whatsoever, whether belonging to the city or any other person,
or body, or to the state, that may be damaged, removed, disturbed, or
injured, and the contractors shall indemnify, save harmless, and keep
indemnified the city and its officers from and against the same, and
from and against all actions, suits, claims, demands, penalties, or liabili-
ties, and all charges and costs, or expenses .whatsoever, by reason or on
account thereof, whether arising therefrom directly or indirectly; and
when required by the engineer the contractors shall deliver at his office
certificates in writing from the proper authorities, or otherwise give
§ 637.] CONTRACT STIPULATIONS, 661
evidence to the satisfaction of the engineer, that all public and private
ways, and all property, works, or tilings that may have been disturbed
dr injured by the said works have been properly made good, and all
expenses and demands in respect thereof paid by tlie contractors before
the last two payments under this contract shall be due or made, as herein-
after provided, to the contractors."
635. Provision that Contractors shall Indemnify Owners for all Claims,
Costs, and Expense from any Infringement of Patent-rights.
Clause: "The contractors shall indemnify the owner, company, or
city against all actions, and all claims and demands, and all costs,
charges, and expenses, and all damages which may be brought, made,
or claimed against, or incurred by the owner, company, or city for or
on account of any infringement or alleged infringement of any patent
rights by reason of the user of the plant, machinery, and things sup-
- plied, or processes employed by the contractors upon the works or any-
part thereof."
636. Provision that Contractor shall Indemnify Owner and Save Him
Harmless from all Suits and Damages, and that Owner may Compromise Suits.
Clause: "In case of any action or suit or proceeding being brought
or taken against the owner, company, or city, or the said engineer or
officer in charge, or any of their or his officers or servants, in respect
of any penalties, damage, or defects or any loss, damage, or injury by
reason thereof, or consequent upon the execution or non execution of
any work contracted for, or of any patented processes, tools, or materials,
the contractor shall fully indemnify them, and each of them, and shall
forthwith pay to him [it, or them] all costs, charges, damages, and ex-
penses which he or they shall or may have been put to or have incurred
in reference thereto; and the said owner, company, or city, or its solicitor,
may, if they or either of them shall see fit, and in their absolute discre-
tion, defend or compromise any such action, suit, or other proceeding,
or any claim in respect of any such damage as aforesaid, on such terms
as they shall see fit, and the contractor shall thereupon forthwith pay
the sum or sums so paid ; but if the contractor forbid such compromise,
or if no such compromise is effected, then he shall be made a party to
such action, suit, or proceedings, and shall in every case pay to him [it,
or them], such sum or sums as shall fully indemnify him [it, or them],
and the owner, company, or city, or engineer, may deduct the amount
of all such damage and costs thereof, including the taxed costs of the
said owner, company, or city out of any money due or owing, or may
become due to the said contractor on the contract for this work, or any
other contract which he may have with the owner, company, or city.
And it is further understood and agreed by and between the parties
hereto that the special enumeration of certain duties and liabilities
shall not in any way relieve the said contractor from the general and
the whole liability arising from the execution of the work or any neglect
to use proper measures to prosecute and protect the work."
637. Provision that Contractor shall take Every Precaution to Avoid
Injuries, and will Save City from all Cost, Damage, or Expense.
Clause: "And the said part... of the second part [contractor(s)]agree(s)
during the performance of the work, to take all necessary precautions and
662 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 638.
to place proper guards for the prevention of accidents; and to put and
keep at night suitable and sufficient lights, and that he [they] will in-
demnify and save harmless the said owner, company or city from all
suits or actions, of every name and description, brought against the
said owner, company, or city for or on account of any injuries or dam-
ages received or sustained by any person or persons by or from the said
contractor, his servants or agents, in the construction of said work, or
by or in consequence of any negligence in the performance of the work
or in guarding the same, or any improper materials used in its construc-
tion, or by or on account of any act or omission of the said contractor
or his agents and servants; and the said contractor further agrees that
so much of the money due or owing to him, or that may become due
under and by virtue of this agreement as the said engineer shall consider
necessary, may be retained by the said city until all such suits or
claims for damages, as aforesaid, shall have been settled, and evidence
to that effect furnished to the satisfaction of the said engineer."
638. Owner cannot Escape Liability for Certain Acts by Making Con-
tractor Assume the Liability. — The adoption of such clauses in a contract
does not absolve or protect the owner or company from liability for in-
juries that ordinarily result from the work itself, or from the means or
methods authorized by the owner. The liability assumed by a contractor
are usually those which can be avoided by the skillful, careful, and prompt
performance of the contract, or that can be avoided by the foresight,
experience, and knowledge which a contractor or builder is supposed to
possess. It could hardly be expected that a contractor would be required
to assume liabilities which are a necessary result of the carrying out of the
contract. A person or corporation cannot escape liability for a criminal, .
unlawful, surreptitious, or injurious act by employing some one else to do
it for him. His liability directly to the injured party remains, though he
may recover or recoup the damages he may have to pay from the contractor
who assumed them. The contractor's assumption of risks or the agreement
to pay all damages, injuries, or costs arising does not relieve the owner,
company, or city from its liability to the person who is injured,' and the
latter can bring his action against the person or party who is responsible
and liable, irrespective of the relation existing between that person and
others.
The owner is primary liable for the acts of his servant, and as will be
seen from succeeding sections, the question as to whether a builder is
really an independent contractor or a servant is in some cases one of doubt.
This is one good reason why the stipulations are used, for they are a safe-
guard, should the builder be declared a servant of the owner or city.
If the contractor has agreed to assume all the risks incident to the work,
and to indemnify the owner and save him harmless from all damages, actions,
and costs, without doubt he is liable on his contract, and the bonds he has given
» StorrsiJ. Utica (N. Y.), 17 N. Y. 104 ; Meechem on Agency, § 747.
§ 638.] CONTRACT STIPULATIONS. 563
for the performance of the contract will be holden for such sums as the
company has to pay in consequence of damages accruing from or arising
out of the work or the contract. If an owner who has paid a judgment
against him for personal injuries caused by an obstruction left in a street
by a contractor, sues on the contractor's bond for indemnity, he may show,
by evidence aliunde, the record in the action by the person injured, that the
presence of the obstruction was the subject-matter relied on for a recovery
in that action/
Provisions making the contractor liable for injuries caused by his
negligence, and allowing the company to withhold payments under the
contract on account of them, do not affect the relation of the company to
third parties and inure to their benefit,' * nor does the fact that the owner
or city has required a bond of indemnity from the contractor tend to fix
the liability oh the owner or city,' nor does a city become liable for the
negligence of a contractor making a public improvement merely because
the contract did not provide that the contractor should use care to prevent
such conditions as that complained of.*
In an action against a city for damages resulting from the construction
of a viaduct, it has been held that the contractors who built it should not
be admitted as defendants, though they agreed to indemnify the city for
damages caused by carelessness in the work, since the question in such
action is as to the liability of the city by reason of its acts, and not as to
which of the wrongdoers, as between themselves, is primarily liable.^
A contractor, building a sewer in the streets of a city, who has under-
taken to save the city harmless from all suits arising from negligence in
guarding the same has been held liable to a person injured in consequence
of such neglect, though the work was done under the direction of the city
engineer.*
A water company which is laying water-pipes in a city which has agreed
to protect all persons against damages by reason of their excavations, and
to be responsible for all damages which might occur by reason of the neg-
lect of their employees on the premises,. was held liable for injury accruing
to a person passing over a street and occasioned by the negligence of a sub-
contractor whom they had employed. The duty and responsibility assumed
by the water company cannot be shifted by a contract/ When a contractor,
' City of New York v. Brady (Sup.), ' Sauer v. City of New York (Sun.), 41
30 N. Y. Supp. 1121. K Y. Supp. 957.
2 Tibbetts v. Kuox & L. R. Co., 62 Me. « Charlock v, Freel. 50 Hun 395 [18881 ;
437; St. Paul Water Co. v. Ware, 16 Wall and see Baumeister v. Markham (Ky.), 39
566 : Blake v. Ferris, 5 N. Y. 48. S. W. Rep. 844 [1897] ; but see French v.
» Fink V. St. Louis, 71 Mo. 52 [1879] ; Vix (N. Y. App.), 37 N. E. Rep. 612.
Green c. Portland. 32 Me. 431; Murphy «. 'Water Co. «. Ware, 16 Wall. 566
Chicago, 29 III. 279. [1872] ; accord, McManus « The C. Gas
4 While V. City of New York (Sup ), 44 Lt. Co., 40 Barb. 380 [1863].
N. Y. Supp. 454 [1897].
*/Setf Sec. 17, supra, and Sees. 752-768, infra.
664 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 639.
in constructing a sewer, injured the pipes of a gas company laid in the
street, and, when sued for such injury, justified the trespass under his con-
tract with the village, plaintiff may avail himself of a provision of such
contract binding the contractor to repair all damages done to substructures
in its execution/
However, a stipulation by which the contractors assume liability for any
damages that may be done to the property or person of any neighbor or
passer-by is for the protection of the owner, to save him from claims en-
forceable against him, and does not give a neighbor a right of action against
the contractors for the acts of an independent subcontractor, where the
owner would not have been liable had such acts been done by the contractors
themselves.^ Such a stipulation does not make the contractors insurers
against injury to the property of a neighbor who had no knowledge of the
contract, for whom the owner did not act as agent, in whose property he
had no insurable interest, and for which insurance he paid no consid-
erittion.'^ . .
Such stipulations to indemnify the owner, company, or city from losses,
damages, and costs are contracts of insurance, and an extended discussion
of them would take the reader into the broad field of insurance law, which
the size of this book will not permit. There is no object in doing that, for
the subject of insurance in all its branches has been carefully digested and
excellent books are to be had of the dealers, containing both American and
English law.
The law in this country as to whether the contractor can or cannot be
sued is not uniform, owing to the codes of the different states. The prac-
tice, as well as the parties to the action, cannot be given in a book of the
narrow limits of this volume. If the author succeeds in giving his readers
a general idea of who may be sued, or who is liable, without conveying
wrong impressions to the laymen, he will feel that the object of the book
has been accomplished. Attorneys at law are referred to works on insur-
ance [marine insurance] and to works on actions, pleading, and practice.
The questions of law arising in construction work, under these stipula-
tions, are chiefly those which come, or are the result of, laches in the en-
forcement of the stipulation, or that arise from a loosely-drafted clause,
or when it is entirely omitted, when tho question is, Who is ultimately re-
sponsible, the company or the contractor, or both of them ?
639. Owner's Liability for the Unskillful, Careless, Negligent, and
Lawless Acts or Works of His Contractor.* — The liability of the owner for
injuries and damages resulting from work performed under a construction
contract arises in several ways, which the authorities have taken up under
the following heads: (1) When the act which has caused the injury was
^ Glens Falls Gas Light Co. v Van Vran- 2 F,.(.nch v. Vix (Com. PI.), 21 N. Y;
ken (Sup.), 42 N. Y. Supp. 339. Siipp. 1016.
* See Sec. 275, supra : Trespass.
§ 640.] • CONTRACT STIPULATIONS. 665
committed by the owner himself; (3) when the act in itself is harmless and
lawful and the injury has resulted not from negligence or wrongful acts,
but from the work being performed in the manner required by the contract;
(3) when there are certain duties and obligations incumbent on the owner,
which he owes to the public, or to adjoining property-holders, which he
cannot escape by delegating to others, and the performance of which duties
is rendered imperative by the work; (4) when the owner or contractor is in
possession of fixed property which is so managed, wrought, or dealt with,
that injury results to another; (5) when the owner undertakes that due
care has been exercised in the erection of a structure or the like, and that
it is reasonably fit for the purposes for which it was intended, and it turns
out that it was negligently constructed, by reason of which injuries were
sustained, liability will attach notwithstanding the fact that the owner em-
ployed competent contractors to erect the structure; (6) when the injury
has been caused by an agent or servant of the owner, through whom the
:act or neglect has been committed/
640. Act Committed by the Owner or Principal. — This condition should
require no comment or discussion. Every man or corporation must be
made and held responsible for his own acts. The protection of personal
rights requires it. It is equally true where the owner has undertaken to
perform a part of the work, and injury results from his own negligence.'
640a. When Injury Results from Carrying Out the Terms of the Con-
tract.— If damages result from the performance of the work in the manner
required in the contract, and not from any negligence or wrongdoing of
the contractors, the contractors are the agents of the owner, and he is there-
fore liable for such damages/
If the work is harmless and lawful when properly conducted and per-
formed, and the company merely prescibes the end, or results to be attained,
it cannot be charged with liability for injuries resulting from the means
'employed.* The enterprise undertaken must be a lawful one; if it amounts
to a nuisance, or if the injury arises not from its negligent or unskillful
construction, but from the fact that it was constructed at all, then liability
attaches whether the erection be made under the supervision and control
of the company, or it be let out by contract to others.* An owner or com-
pany is liable when the performance of the act authorized necessarily or
naturally produces the injury in the ordinary mode of doing the act or
work, or it employs a contractor to do an unlawful act or one amounting to
a nuisance.* The falling of a brick from an upper story of an incomplete
' See Evans on Agency 590. s Boswell v. Laird, 8 Cal. 469 [1858];
2 GiP'ert v. Beach, 5 Bosw. 445. Cooley on Torts 128; Wilson v. Peto, 6
3 2 Dillon's Municipal Corpn., §§ 977, Moore 49.
•978; Addison on Torts 86. « Pierce on Law of R. R. 288 [1881];
4 Wabash. St. L. & P. Ry. Co. v. Parver, Carlson ». Stocking (Wis.), 65 N. W. Rep.
(Ind.) 12 N. E. Rep. 296 [1887]; Roemer 58; Ellis v. Sheffield Gas Co., 2 El. «&. Bl.
«. Striker, 21 N. Y. Supp. 1090. 767.
566 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 641.
building not being the natural result of any act which independent con-
tractors erecting the building were engaged to perform, the owner cannot be
held for injuries resulting therefrom.^
641. Owner is Liable if the Natural Result of the Act will be a Nui>
sance. — If the work as authorized will necessarily produce the injuries com-
plained of, or if the act itself will be a nuisance to others, then the em-
ployer or company may be held for the damages resulting from the acts so
authorized.' It is not essential that the injury shall be a necessary conse-
quence to the work. If the natural result of it when done in the ordinary
mode is a nuisance, the one who authorizes it to be done is liable;^ or if
the nuisance necessarily occurs in the ordinary mode of doing the work,.
the company or owner is liable; but if it is from the negligence of the con-
tractor or his servants, then he alone should be responsible.* For injuries
that result entirely from the wrongful or negligent acts of the contractor or
his workmen the employer is not liable, but if injury is occasioned directly
by the acts authorized by the company, it, too, is equally liable." If
both are negligent or have failed to conform to ordinances or building
regulations, then each is liable for the damages that result. One super-
intending the construction of a building, as agent of the contractor, has
been held equally liable with his principal for an injury to a third person,,
resulting from a failure to erect proper scaffolding to prevent the fall of
brick, or from the negligent construction of the wall; * and where two dif-
ferent persons are engaged as independent contractors in the erection of a
building, the one at masonry work and the other at iron work, each, and the
owner, too, is required to comply with an ordinance requiring "any owner
or contractor who shall build or cause to be built" any building iabutting
on the public sidewalk to erect a roof passageway over the sidewalk.'*
It may be doubted if it must amount to a nuisance strictly. If the
natural or probable consequences of the work are mischievous and are liable
to injure others in the enjoyment of their rights unless preventive measures-
are exercised by the owner, then he will be liable for injuries caused by his
neglect to adopt preventive measures.® It has been so held when the support
of a building has been undermined by the owner of adjoining premises *" or
^ Smith V. Milwaukee B. & T. Exch. ' Smith «. Milwaukee Builders and
(Wis ) 64 N. W. Rep. 1041. Traders' Excbauge (Wis.), 64 N. W. Rep.
2 McCafferty v. ^ D. & P. M. R. Co., 61 1041.
K. Y. 178 [1874]; Readie ?j. The London, « Bower v. Peate, 1 Q. B. Div. 321 [1876]r
etc., R. Co., 4 Exch. 244. Goiham v. Gross. 125 Mass. 233; Augus v.
« Canes cited in Cuff v. K & N. Y. R. Daltou, L. R. 4 Q. B. D. 162; Homan v.
Co., 35 K J. L. 17 [1869.] Stanley, 66 Pa. St. 464; Chicago v. Rob-
^Cuicago V. Robbins, 2 Blackf. 428; bins, 4 Wall. (U. S.) 657; Scammon i). Chi-
Clarlc V. Fry, 8 Ohio St. 358. cago, 25 111. 424; cases in 29 Amer. & Eng.
^ Robbins v. Chicago. 4 Wallace 679. Ency. Law 947.
Either or both may be liable. ^ Evans on Principal and Agent 593.
« Mayer v. Thorapson-Hutchinson Bldg. English cases cited.
Co. (Ala.), 16 So. Rep. 620.
' - * See Sec. 244, supra.
§ 641.] . CONTRACT STIPULATIONS. 667
when reasonable care or skill were not exercised in the use of a party wall.*
Such injuries or conditions are in the nature of nuisances, if not so accord-
ing to the strict interpretation of the word.''
Therefore, where an owner employed a contractor to shore up a neigh-
bor's wall, to prevent it from falling into an excavation which the owner
was making on an abutting lot, and the contractor's employees, without per-
mission from the neighbor, entered his premises and put beams through the
wall (the only way in which it could be shored up), w.hereby his property
was injured, and it was claimed that the work was negligently or improp-
erly done; it was held that the work was necessarily injurious to plaintiff,
and defendant was not relieved from liability by the fact that it was done
by an independent contractor.'
Where one is making improvements upon his own premises, or without
lawful right, trespasses upon or injures his neighbor's property by casting
material thereon, he is liable absolutely for the damage, irrespective of any
question of care or negligence, and a license from the municipal authorities
cannot affect the question of responsibility.* If a neighbor sustains dam-
age by the dropping of mortar and bricks during the erection of a wall next
to his premises, the owner is not liable for such damage if it was not a
necessary result of the building of the wall, but was caused by the negli-
gence of the contractor, or of the contractor's servants.* The owner is not
liable when an independent contractor negligently uses a coal-hole or
obstructs the sidewalk, nor is he obliged to see that the street is not
obstructed if it be not necessary to obstruct it in performing the contract.*
The owner of a building, while putting on a gravel roof, was held not negli-
gent in failing to clear the sidewalk every hour of gravel which falls on
it.^
If a person not in the actual possession of land, the title to which is in
another, without the latter's consent enters thereon and excavates so as to
injure the adjoining building of the owner, he is liable therefor, and it makes
no difference that the person who actually committed the injury is an inde-
pendent contractor, where the work is done with his knowledge and con-
sent, and for his use and benefit.^
The nonperformance by the owner of a duty imposed by an ordinance
requiring the erection of a roofed passageway over the sidewalk after the
» Hughes -p. Percival, 8 App. Cas. 443; B. & F. Ex. (Wis.), 64 N. W. Rep. 1041;
Bowers v Peat, L. R. 1 Q. B. D. 321. Reedie v. Loud. N. W. R. Co., 4 Exch.
^ Per Court, in Quarman v. Burnett, 6 244.
M & W. 499. sMaltbie v. Baiting (Super. N. Y.), 2&
^Ketc' am «. Cohn (Com. PL), 22 N. Y. N. Y. Supp 903; s^e Patterson v. Austin
Supp. 181. (Tex.), 39 S. W. Rep. 976: Baumeister d.
4 Mails V. Manhattan R. E. Ass'n, 89 N. Markham (Ky.). 39 S. W. Rep. 844.
Y. 498 [18821. ' O'Reilly v. Long Island R. Co. (Sup.),
sPve V. Faxon (Mass.), 31 N. E. Rep. 44 N. Y. Supp. 264 [1897].
640; Larson v Met. St. R. Co., 110 Mo. s Crenshaw ij. Ullman (Mo. Sup.) 20 S.
234; Engle « Eureka Club (N. Y. App.), W. Rep. 1077.
32 N. E. Rep. 1052; Smith v. Milwaukee
568 ENGINEERING AND ARCHITECTUBAL JURISPRUDENCE. [§ 642.
completion of the first story of a building cannot be excused by a plea that
an independent contractor has agreed to perform the duty/
642. A Man must Maintain His Property in a Reasonably Safe and
Proper Manner— The Owner of Real Estate is Responsible for the Safe
Condition of His Land. — It is sometimes stated that the owner of real estate
is responsible for the negligent acts of persons employed in making erec-
tions upon it for his benefit, even when the relation of master and servant
does not exist between such owner and the person employed.'' This state-
ment regarding the ground of liability should be received with consider-
able caution, for the rule, if applied strictly, would become the exception.
It is well settled that an owner of real estate may contract for any work
which is lawful and not in itself a nuisance, and is harmless if properly
and carefully carried out, or which is not of such a character as to impose
a duty upon him to protect the public or his neighbors, and if he does not
reserve or assume control of it so as to make the contractor his ser-
vant, he will not be liable for injuries resulting either from the work or
from the prosecution of the work during its progress. Thus it has
been held that the owner is not liable for the failure of a dam built upon
his property," for injuries resulting from excavations,* or from the opera-
tion of a steam shovel by which the horse of a passer-by was frightened, or
from fires negligently set under a contract to clear land.*
Two interesting cases which are seemingly contrary are directly in point
on this question. The facts are very much alike, each being a case of fail-
ure of a dam and destruction of property resulting. In one case it was held
that the owner of real estate was responsible for erections negligently car-
ried on upon his property," and in the other the court held that the mere
fact that improvements were erected upon the land was no just reason why
-liability should attach to the owner during the process of erection any more
than if the enterprise were executed elsewhere.'^
643. After Acceptance the Owner is Responsible for the Safety of Works.
— If work is done by a contractor not in its way a nuisance, but which
becomes so by reason of the manner in which the contractor has performed it,
the owner or company becomes responsible at once if he [it] accepts the
' As to what acts in building operations such as water, snow, sewage, offul, fac-
•amouut to nuisances, see 29 Amer. & Eng. tory products, and steam exhausts or
Ency. Law 946, 947, and see Hainan v. whistles. Cooley on Torts. Smith v. M\\-
S'atily, 66Pa. St. 464; a^soLloyd'sLaw of waukee B. & T. Ex. (Wis.), 64 N. W.
Building, i^§ 76-78. Some of the most or- Rep. 1041; and see Jager t). Adams, 123
d nary nuisances in building operations are Mass. 62.
ilie following; Obstruction of streets, ways, '^ Mayor of New York -o. Bailey, 2 Denio
and streams; interruption of public travel 433 [1845], citing many cases.
and traffic, as by structures, excavations, 'Boswell «. Laird, 8 Cal. 469 [1857]; a/nd
buildiug materials; undermining land or see Barton v. McDonald, 81 Cal. 267; hut
tlie foundations of other structures; tres- see Mayor v. Bailey, 2 Denio 433 [1845].
pass upon, over, or beneath private prop- ■* Aston v. Nolan, 63 Cal. 269.
erty; accumulating and keeping dangerous ^ 14 Amer. & Eng. Ency. Law 831, 833.
or offensive materials, or unsightly and ^ Mayor v. Bailey, ^ Denio 433.
noisy things, to -the annoyance of others, ' Boswell v. Laird, 8 Cal. 469 [1857].
§ 643.] CONTRACT STIPULATIONS, 569
work in that condition.* " Before acceptance the owner must see to it that
the work, as to strength and durability, and as to all other particulars
necessary to the safety of the property and persons of third parties, is sub-
jected to proper tests, and that it is sufficient. By acceptance and sub-
sequent use the owners assume to the world the responsibility of its suf-
ficiency.""
Acceptance of important works, as has been shown in other parts of this
work, is an act which should be attended with appropriate formality and
preparation. A searching inspection of the work itself, and careful review
of all the circumstances and events connected with it, will frequently reveal
many things that would otherwise be overlooked. Tests, actual use, or ser-
vice, under the control and superintendence of the contractor, are advised.
After the owner has accepted a work or a structure he is liable for subsequent
injuries caused by the natural results of the work, he having assumed the
responsibility of its sufficiency. From the act of acceptance by the owner
the liability of the contractor ceases.' The owner is responsible after
acceptance, even though the accident is due to the negligent performance of
the contractor.* A formal acceptance, it seems, is not necessary; it is
enough if the owner or city has assumed control of the structure.^ The
owner must have possession and control, or there is no such ratification of
the contractor's work as will render him liable therefor."
The law casts a duty upon an owner of property to see that operations
upon his land are conducted with reasonable care and skill, and an owner
cannot^get rid of this responsibility by delegating the performance of work
to a contractor. The owner cannot remove the lateral support which his
land has afforded his neighbor's land without taking precautions to pre-
vent injury to his neighbor's land.'^ If the adjoining property be occupied
with a building, the owner or builder is in duty bound to notify his neigh-
bor of the operations he is about to undertake before commencing," and
he must exercise due and ordinary care in carrying on the work,^ or he will
be liable for injuries resulting.'" It has been held that a person must use
^Vogel V. Mayor, etc.. 93 N. Y. 10 «?. Hancock, 12 Mass. 220; Wyatt «. Harri-
[1883] ; Smith v. Milne, 1 Dowl. 290. son. 3 B. & Ad. 871; Partridge v. Scott, 3
2 Field, J., in Boswell v. Laird, 8 Cal. M & W. 220.
469; hut see Ryder v. Kiusey (Minn.), 64 N. ^ Biown v. Werner, 40 Md. 15; MM?sy ■».
W. Rep. 94. Goyder, 4 C. & P. 161 ; Wyley Canal Co.
3 Boswell V. Laird, 8 Cal. 469 [1857], 14 v. IBradley, 7 East 368.
Amer. & Eng. Ency Law 837. » Ciiarles v. Rankin, 22 Mo. 566; B. & O.
^Khron v. Brock (Mass.), 11 N. E. Rep. R. Co. v. Reaney, 42 Md. 117; Jeffries v.
748 [1887] ; contra, Ryder v. Kinsey (Minn. ), Williams, 5 Ex. 792.
supra. 10 g^g Peyton v. Mayor, 9 B & C. 725;
»Fir«tP. C. of E. 1). Smitli (Pn.), 30 Atl. and see Emden's Law of Buildins:, chap.
Ren. 279, a sewer; semhle, Klix v. Nieman xviii, and Lloyd's Law of Building. §
(Wis.), 22 N. W. Rep. 223, note; Khron v. 80; Smith v. Darby, L. R. 7 Q. B. 716;
Brock. 11 N. E. Rep. 748 [1887]. Horner v. Watson,' 79 Pa. St. 242; Hilton
« Atlanta & F. R. Co. v Kimberly rGa.), v Granville, 5 Q. B. 701; Fisher v. Beard,
13S. E. R-p. 277 [1891]. H2 Iowa 346; Bouoni v. Blackhause, Ei.,
Quincy v. Jones, 76 111. 231; Thurston BI. & El. 622.
570 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 644.
ordinary and reasonable care and means to prevent an injury to his property
by negligent construction, and he can only recover such damage as could not
by such care and means be avoided.' So when an owner's house was sepa-
rated from an adjoining house by a party wall and he employed a builder to
pull down his house and build it on a plan which involved the tying together
of the new house and the party wall so that if one house fell the other would
be damaged, in the course of rebuilding the builder's workmen, in fixing a
staircase negligently, and without consent of the owner, cut into a party,
wall on the other side, in consequence of which the house fell and damaged
all the houses, the owner was held liable for the damage, unless he proved
that the act could not have been reasonably anticipated by workmen of
ordinary skill who were neither dishonest nor insane." A landlord, who
undertakes to make repairs which affects the support and foundations of a
building, is bound to use the greatest degree of care, not mere ordinary
care, because he is bound to use ordinary care towards persons to whom he
owes no duty; and if by his alterations he endangers the safety of his ten-
ants or guests, he does it at his peril, and cannot shield himself from
responsibility after a catastrophe has happened by saying, "I used ordinary
care and employed skillful mechanics, but in spite of all, for some unknown
reason, the building fell." ^ Ordinary care is that degree of care which a
reasonably prudent and cautious person would take to avoid injury under
like circumstances.*
An owner cannot maintain the right to blast rock with gunpowder on
his own lot even if he uses care and skill in so doing. He should know
that by such act, which was intrinsically dangerous, the damage would be a
necessary, probable, or natural consequence.'
644. Duties Imposed by Law Upon the Owner to Exercise Due Care
and Foresight — Must Employ Competent Parties. — The first duty of an
owner is to employ competent and skillful persons to undertake the work»
If unskillful and improper persons are knowingly employed by the owner
or company to perform their work, they may be required to answer their
reckless choice and make good their blunder." * It is not enough, in em-
J City of Dallas v. Cooper (Tex. Civ. portation Co. v. Chicago, 99 U. S. 635;
App.l 34 S. W. Rep. 321. Losee v. Buchanan, 51 N. Y. 479; explain-
^ Hughes V Percivnl (Eng.), 8 App. Cas. ing Hay v. Cohoes Co., 2 N. Y. 159; Pixley
443 [1883]; Gorham v. Gross. 125 Mass. 232; v. Clark. 35 N. Y. 520; Heeg v. Licht, 80 N.
but see ConnoTsv. Henuessy, 112 Mass. 96. Y. 579; Tiffin v. McCormick, 34 Ohio St.
3 Judd & Co. V. dishing, 50 Hun 181 644; Sutton v. Clark, 6 Taunt. 44; Joliet «.
[1888]; Jefferson v. Jameson & M. Co. Harnood, 86 111. 110; Farrand «. Marshall,
(111.), 46 K E. Rep. 272; McHenry v. 19 Barb. 381; Rylands «). Fletcher, L. R. 3
Marr, 39 Md 510- Stott v. Ciiurchill (Com. H. of L. 106; Wilson v. New Bedford, 108
PI), 36 N. Y. Supp. 476; and see Camp- Mass. 261-266; Cahill v. Easlman. 18 Minn,
bell V. Portland Sugar Co.. 62 Me. 552; 324; Norwalk Gas Co. ^. Nurwalk (Conn.),
Toole V. Bffckitt, 57 Me. 544. 28 Atl. Rep. 32.
^ Chicago City Ry. Co. v. Dinsmore (111. * 14 Amer. & Eng, Eucy. Law 836; Cuff
San.). 44 K E. Rep. 887. v. N. & K Y. R. Co., 35 N. J. L. 17
5 Colton «. Onderdonk (Cnl.), 23 Rep'tr [1869]; Boswell v. Laird, 8 Cal. 469
106 [1886] ; Addison on Torts, 9; Trans- [1858].
* See Sec 246, supra.
§ 644.] CONTRACT STIPULATIONS. 671
ploying an independent contractor, not to knowingly employ an incompetent
one; but one must exercise due and reasonable care to select a competent
and skillful person.* If the work be lawful and be entrusted to competent
and skillful engineers and contractors, no liability will attach to the pro-
jectors before it is accepted.'* * .
The owner, however, does not guarantee to the workman that the con-
tractor engaged by him is skillful or careful; it is for them individually to
inquire into the contractor's character and ability." . If a person has been
injured, through the contractor's negligence, in doing the work he was
employed to do, the habits of the contractor may be shown to prove that he
was a person not to be trusted with such work, and the owner may be re-
quired to show that he had used proper care and diligence in ascertaining
the contractor's character and capacity.*
If the company employ a contractor to do a thing the performance of
which would render it liable, it cannot hope to escape by delegating the
act to a third party. If the company authorized the very act to be done
which has caused the mischief, it will be compelled to shoulder the con-
sequences. But if the act which is the subject of complaint has arisen
indirectly in the course of the work as a result of the contractor's mistakes,
omissions, negligence, or methods that he has himself adopted, then the
company is not responsible, because it has never authorized these acts to bo
done.'
A duty is imposed by law upon everybody to avoid acts in their nature
dangerous to others. If the negligence of the contractor complained of be
an act imminently dangerous to life, then the contractor is liable; and this
is so notwithstanding the fact that the party injured was not a party to the
contract. The builder of a structure for a company is liable for defects in
his work when the defects are such as to render the building dangerous
and the injury is a natural and probable consequence of its use,*' even though
such defects are due to negligence of subcontractors.'
If the owner of land contracts with a skillful party to erect a building
thereon, and for that purpose surrenders the premises for the use of the
contractor, he is not, during the erection of the huilding, answerable in
damages for an accident which occurs to a passer-by.® If a corporation that
is building a structure composed in part of brickwork and in part of wood-
work has exercised due and reasonable care in selecting a mason supposed
J Norwalk Gaslight Co. -». Norwalk 780, also 31 N. Y. Supp. 1091.
(Couii.), 28 Atl. Rep. 32. 5 Hale v Ry. Co., 6 H. & N. 497; accord,
2 Cuff V N. & N. Y. R. Co., 35 N. J. L. Ryder v. Kiusey (Minn.), 64 N. W. Rep.
17 [1869] ; Boswell v. Laird, 8 Cal. 469 94; Ryan «. Fowler, 24 N. Y. 410; Homan
[1858]. v. Stiinley. 66 Pa. St. 464.
3 Hunt v. Penn. R. Co , 51 Pa. St. 445; « Devlin v. Smith, 89 N. Y. 477 [1882].
.Schin V. Pabst Brew. Co. (Minn.), 66 N. ' Bast v. Leonard, 15 Minn. 304.
W. Rep. 3. 8 Scamnion v. City of Chicago, 25 111. 424
4 Berg 7). Parsons (Sup.), 35 N. Y. Supp. [1861].
* See Insufficient Plans, Sees. 243-248, supra.
572 ENGINEERINO AND ABGEITECTURAL JURISPRUDENCE. [§ 645,
to be an expert in the business, it is not responsible for the fall of the ma-
sonry upon the carpenter, whereby he was killed, even though the mason's
work was defective. The carpenter and mason are co-laborers of a common
master, and co-operating in their respective departments of labor to a com-
mon end, viz., the erection and completion of the building/
If the owner has not knowledge or even constructive notice of the
danger, he cannot be held liable for injuries sustained by a laborer by a
floor giving away, caused by overloading-with stone and brick by the mason
contractor who was building the walls. In this case plans and specifications
had been approved by the building deptwtment, and mason's and carpen-
ter's work had been contracted for with the owners, to be done according
to plans and specifications, by contractors well known, experienced, and
competent. An inspector of the building department had examined the
work every d^y as it progressed, and had approved of it up to the day of
the accident, but on that day he warned the employees of the mason con-
tractor not to overload the beams.''
Negligence has been defined as the failure to exercise that degree of
caution which a man of ordinary intelligence would exercise under the cir-
cumstances of a particular case." Of corporations it is required that they
exercise the same degree of care and prudence that a cautious individual
person would exercise if the whole risk or loss were his own;* such a.
measure of prudence as a discreet person would employ.' The degree of
care necessary has been held to be in proportion to the extent of the injury
that would be likely to result if it should prove insufficient or fail/
645. Duties of Cities and the State to Maintain their Streets, Ways, and
Public Improvements in a Safe Condition. — It has been frequently held that
cities owe to the public the duty of keeping its streets in a safe condition
for travel.' If it authorizes excavations and obstructions it will be liable
for injuries received from neglect to take proper precautions to prevent
accidents. It must keep proper lights and guards at night, whether it has or
has not contracted for such precautions with the persons executing the work.®
J Keith '0. Walker Iron & Coal Co. (Ga.), » Gravelle v. M. & St. L. Ry. Co , 10
7 S E. Rep. 166 [1888] ; but see Giles v. Fed. Rep. 711 [1882].
D'amond State Iron Co. (Del.), 8 Atl. Rep. * Denver v. Rhodes (Colo.), 13 Pac. Rep.
3158 and 11 Atl. Rep. 189, where the walls 729 [1887].
fell from hemg improperly designed; see ^ Mayor of New York ■??. Bailey, 2 Denio-
7 S E Rep 166, note. 433 [1845]. '
2 McEmandy d. Kyle, 14 Daly 268 « Mayor v. Bailey, 2 Denio 433 [1845].
[1887]; and see Olsen v. Meyer (Neb.), 64 No additional liability is incurred by a
N. W. Rep 954, where owner had em- cit3^'s taking a bond to indemnify it airainst
pioyed an architect. any loss or damai^e resulting from a failure
An inspector has been held a mere fel- of a contractor to perform his duty. Erie
low-servant of the men at work upon a v. Caulkins, 82 Pa. St. 247.
structure. Stourbridge v. Brooklyn City ' Siorrs v. Utica, 17 N. Y. 104; Cuff v.
R. Co. (Sup.), 41 N. Y. Supp. 128. N. & N. Y. R. Co., 35 N. J. L 17 [1869];
A surveyor is the fellow-servant of tlie see eases collected, 14 Amer. «fe Eng. Eucy.
conductor of a train upon which he may be Law 842, note.
rid ins Ro^s v. N. Y. C. & H. R. R., 5 « Storrs v. Utica, 17 N. Y. 104 [1858],
Hun 488 [1875]..
§ 645.] • CONTRACT STIPULATIONS. 673
The arguments upon which this liability is put are that the accident is
a result of the work itself and not of its unskillful performance; that a
ditch could not be dug in a public street and be left unguarded at night
without imminent danger of such casualities ; that the author of the
mischief was the one who caused the excavations to be made, whether it
did it by its own laborers or let it out by contract. The city first deter-
mines that the excavations shall be made, and then selects a contractor to
do it. Can it escape responsibility for putting a public street in a danger-
ous condition by interposing a contract which it itself has made for the
very thing which creates the danger?'* The law in all cases does not,
it seems, make the same rule for counties; thus it has been held that where
independent contractors, while putting down a stone curb for a county, left
a trench and a pile of dirt unguarded and unlighted during the night,
the county was not liable to a person who fell into the trench and was
injured, in the absence of interference with and control 6f the work by the
county.' Although the city is responsible for such injuries, that does not
necessarily relieve the contractor of liability for his negligence or the wrong-
ful acts of Ms servants.^
While it is the imperative duty of cities to keep their streets safe for
travel as regards pitfalls, it seems that the duty does not extend to protect-
ing residences from accidents due to the negligence of contractors.* Thus
ivhere a contractor was to furnish the materials and do the work of regu-
lating and leveling the road, and injury was occasioned by negligent blast-
ing of rocks by a subcontractor in the execution of the work, it was held
that the city was not liable for damages caused by rocks being thrown into a
house. ^ Nor does it require a city to provide water for fire purposes when
there is a contract by which a water company agreed to keep the city sup-
plied with a certain quantity of water to protect its inhabitants from loss
by fire. Such a contract does not create between the city and the com-
pany the relation of principal and agent, so as to relieve the company of
liability to a citizen for loss by reason of its failure to keep such supply.*
If, however, the state has by statute empowered the city to elect water com-
missioners for a fixed term, and for such subsequent terms as the city might
determine, to prescribe the duties and compensation of the commissioners,
and to regulate the mode and causes of their removal from office, and
under such statute the city owns the waterworks, receives rents for water,
and controls the use and distribution of the water, the city is liable for
see Baumeister v. Markliam (Ky.), 39 S. ^ Storrs v. City of Utica, 17 N. Y. 104.
W. Rep. 844, which held coDtractor liable, ^ Kelly v. Mayor. 11 N. Y. 432.
I Storrs V City of Utica, 17 N. Y. 104; » p^ck v. The Mayor, etc.. 8 K Y. 222;
Stafford v. City of Oskaloose, 64 Iowa 251 Kelly v. The Mayor, etc., 11 N. Y. 432.
[1885]; Welsh r. St. Louis, 73 Mo. 71 ^ Padiicah Lumber Co. v. Paducnh
[leSOJ. Water Supply Co. (Ky.), 13 8. W. Rep.
"^ Eby v. Lebanon County (Pa.), 31 Atl. 249.
Rep. 332.
574 ENQINEERINO AND ABCmTECTURAL JURISPRUDENCE. [§646.
damages resulting from an unsafe highway caused by a stream of water
thrown from a city hydrant across the highway by employees of the water
commfssioners. The water commissioners and their employees were held
the servants of the city, and the city responsible for their acts/
The same duty is required of common carriers, such as railroad com-
panies, to ifeep their depots and platforms free from defects occasioned by
carelessness of contractors to whom construction has been let. They must
provide a safe means of access to and from the cars for the public, which
duty is independent of the means by which the obstructions or defects are
occasioned. It is a duty imposed by law." Their obligations to the public
as a common carrier requires this. The law imposes certain obligations and
liabilities upon a company in which it vests a franchise with exclusive priv-
ileges, of which it cannot relieve itself so long as it enjoys those privileges.
It cannot escape responsibility by delegating a portion of its business to
others, nor parcel out its business to agents, and be a common carrier with-
out assuming the liabilities of a common carrier.'
If a town be directed by statute to build works of a certain size and ac-
cording to plans approved by a board of harbor and land commissioners,
and it is done, through the selectmen and a committee of citizens of a town,
in a negligent manner, the town will be liable for personal injuries caused
by the negligence of its agents in constructing the work.*
646. City, Company, or Owner Cannot Escape Liability by Delegating
Duties to a Contractor. — " No one can lawfully delegate to another the au-
thority to do an unlawful act, nor can one upon whom the law imposes the
performance of a duty relieve himself from the responsibility for its non-
performance by committing its performance to a substitute. Thus if the
thing to be done is in itself unlawful, or if it is in itself a nuisance, or if it
oannot be done without doing damage, he who causes it to be done by an-
other, be the latter servant, agent, or independent contractor, is as much
liable for injuries which may happen to third persons from the act done as
though he had done the act in person ." ^
" It is, therefore, the duty of every person or company who does by its
own act, or causes to be done by another, an act which from its nature is
liable, unless precautions are taken, to do injury to others, to see to it that
these precautions are taken, and he cannot escape this duty by turning the
whole performance over to a contractor." * " Of the same nature is the
» Aldrich v. Tripp, 11 R I. 141 [1877]. N. Y. 498 [1882] ; Bailey t). Troy & Boston
5 Cuff V. N. & N. Y. R. Co., 35 N. J. L. R. Co., 57 Vt. 252 ; Gorham v. Gross, 125
17 [1869]. Mass. 232; Eaton v. Railroad Co., 59 Me.
3 Speed V. O. & P. R Co., 71 Mo. 303 5-20 ; Caswell «. Cross, 120 Mass. 545 ;
[1879] Wjvtef Co. v. Ware, 16 Wall. (U. S.) 566.
^ Paul v. Forbes, 148 Mass. 495, 628 ; ^ Meechen on Agency. § 747 ; Wilson v.
semble, Lebanon v. McCoy (Ind. App.), 36 White, 71 Ga. 506 ; Gray v. Pnlhn, 5 B.
N. E. Rep. 547. & S. 970 ; Bower v. Peate, L. R. 1 Q. B.
^ Meechen on Agency, 747, and cases Div. 341 ; Tarry v. Ashton, 1 Q. B. Div.
cited; Mairs v. Manhat. R. Est. Assn., 89 314; Gorham v. Gross, 125 Mass. 232;
§ 647.] CONTRACT STIPULATIONS. 67S
duty which the law imposes upon every person, who for his own purposes
brings on his lands and collects or keeps there anything likely to do mis-
chief if it escapes, to confine it at his peril. If he does not do so, he is
prima facie answerable for all the damage which is the natural consequence
•of its escape." * This distinction has been stated in a recent case as fol-
lows: "If the work to be done is committed to a contractor to be done in
his own way, and is one from which, if properly done, no injurious conse-
quences to third persons can arise, then the contractor is liable for the neg-
ligent performance of the work. If, however, the work is one that will
result in injury to others unless preventive measures are adopted, the em-
ployer cannot relieve himself from liability by employing a contractor to do
what it was his duty to do, to prevent such injurious consequences. In the
latter case, the duty to so conduct one's own business as not to injure an-
other is continuously with the employer." ^
" It would be monstrous if a party, who caused another to do a thing
which will necessarily in its progress become dangerous and inconve-
nient, were exempt from liability for the act, merely by interposing a
contract between him and the person immediately causing the act to be
done." '
The rule that a railroad company cannot delegate to a contractor its
charter right to construct the road, so as to exempt it from liability, does not
extend to the use of the ordinary means employed for its construction, but
to the use of such extraordinary powers as the corporation itself could not
exercise without first having complied with the conditions of its charter.*
A provision in the charter of a street railroad company that it should be
liable for the negligence or misconduct of its agents and servants in con-
structing the road, does not apply to the negligence of an independant
contractor.*
647. Provision that Engineer shall have Supervision and Direction of
Work, and that He may Require Dismissal of Incompetent and Disorderly
Workmen.
Clause : ** And it is further mutually agreed and understood that
the work shall be under the supervision and direction [but not con-
trol] of the engineer and according to his instructions in all matters
pertaining to the result or results required by this contract, but not as
to the means and manner by which such results are to be accomplished;
that the said engineer shall have power to require the contractor to
discharge any men considered by the engineer to be incompetent, disor-
derly, or disposed to create discontent or mischief on the works; that
Colegrove «. Smith (Cal.), 33 Pac. Rep. R. Co., 57 Vt. 252.
115; Stiirges v. Theological Society, 130 » Lowell v. Railroad Co., 23 Pick. 31;
Mass. 414. and see Water Co. «. Ware, 16 Wallace,
» Gorham v. Gross, 125 Mass. 232 ; 566 ; Florsheim v. Dullaghan, 58 111. App.
Fletcher v. Rylands, L. R. 1 Exch. 265 : 593.
Shipley v. Fifty Associates, 106 Mass. 194. ■» Sanford v. Pawtucket St. Ry. Co. (R
2 Powers, J., in Bailey v. Troy & Boston I.), 35 Atl. Rep. 67.
676 ENGINEERING AND ARGIIITEGTURAL JURISPRUDENCE. [§ 648.
the work shall be performed and completed to the entire satisfaction of
the engineer and to his approval and acceptance."
648. Provision that Contractor shall Employ and Keep Competent Fore-
men and Mechanics, and that the Engineer may Dismiss Objectionable Em-
ployees and Workmen.
Clause: "The contractor' shall give all necessary personal superin-
tendence during the execution of the said works, and shall constantly
employ on each part thereof at least one good, careful, and competent
foreman, skilled in the trades and callings required by this specifica-
tion, to manage and direct in the absence of the contractor, and such
foreman shall, on behalf of the contractor, receive and have charge of
such several drawings, writings, papers, specifications, and documents as.
may be delivered to or for the use or guidance of the contractor, and
such foreman shall also, on behalf of the contractors, receive, execute, and
obey all such instructions and directions as may be given by either the
engineer, or assistant engineer, or authorized person, and shall not be
changed without the consent ol the engineer; but he may, nevertheless,
be objected to and his dismissal required by the engineer, if and when
he shall see fit to do so ; and thereupon the contractor shall forthwith
cease to employ him upon the work, and shall employ another good and
competent foreman in his stead, and so from time to time, and as often
as occasion shall require. In like manner the contractor shall employ,
in and about the execution of the said works, or any of them, only such
clerks, foremen, superintendents, agents, and workmen as are careful,
competent, and skilled in their various trades and callings •; and the
engineer shall be at full liberty to object to or require the dismissal of
any person employed by the contractor in or about the execution of
such works who shall, in the opinion of the engineer, misconduct him-
self, or be incompetent for, or negligent in, the due and proper per-
formance of his duties or any of them; and 'such person or persons
shall not be employed again thereon without the consent in writing of
the engineer; and should the contractor continue to employ, or should he
again employ about such works, without such consent, such overseer,
mechanic, or workman, the contractor shall pay and forfeit to the said
corporation the sum of twenty dollars lawful money for each day dur-
ing which such overseer, mechanic, or workman shall be employed on
the works after such order as aforesaid, as and for liquidated damages in
respect thereof; and all sums so forfeited may be deducted from the
amount which the contractor may be entitled to receive from the said
company."
649. Provision that only Skillful, Competent Men shall be Employed, and
that the Engineer May Order the Dismissal of Incompetent and Disorderly
Men.
Clause: *' And the said part. . . of the second part further agree. . .
to employ only competent, skillful men to do the work; and that when-
. ever the engineer shall inform said part ... of the second part, in writing,
that any man on the work is, in his opinion, incompetent, or unfaith-
ful, or disorderly, such man shall be discharged from the work, and
shall not again be employed upon it."
650. Provision that Engineer or Architect may Require Dismissal of
Workmen.
§ 652.] CONTRACT STIPULATIONS. , 577
Clause: "The engineer or architect for the time being shall have
power to require the builder immediately to dismiss any workman,
watchman, or other servant of the builder who shall in the opinion of
the engineer or architect misconduct himself, or shall in his opinion be
incompetent, and the builder shall forthwith comply with such re-
quirements/'
651. Object of Contract Work to Avoid Liability Consequent to its Per-
formance.— These are stipulations which often prove expensive and that are
a cause of great mischief and endless litigation. If not carefully drafted
they may endanger the chief objects and purposes of the contract system of
doing work, its effect being to retain the control of the work, and therefore
to assume the risks, dangers, and damages attending its execution. The
primary object of having work done by contract is to avoid these very
things, and to shift the responsibility upon parties who are in better posi-
tion to undertake hazardous jobs and to avoid accidents common to their
execution. Contractors who are working for themselves are likely to use
more care, and take greater pains to protect themselves and their own inter-
ests, than would agents of corportions, who have little or nothing at stake,
and this fact alone is sufficient reason for companies to adopt the system of
contract work, rather than trust to the probable indifference of servants.
Contractors are usually better able to undertake the work. Men who reside
in a cummunity and who have personal acquaintance with workmen, and
know each man's individual habits, character, and disposition, or who from
their experience with men on contract work are able to judge of their fit-
ness and value, are better qualified to assume the risks, dangers, and liability
of their employment than any other class of persons. They know whom
to employ and who may prove able and trustworthy servants. A con-
tractor's acquaintance with the conditions and resources of his locality en-
able him better to estimate the probable cost of work. He knows the cost
of materials and labor; his experience affords him some knowledge of
difficulties and hardships to be encountered in a proposed undertaking.
He has experienced floods and sunken foundations in the same stream or in
the same vicinity, and knows what to expect. He may have two jobs, one
of which will assist the other, by reason of which he may be able to execute
both cheaper and better than the company or any one else not being in the
same position.
For these reasons contractors are willing to undertake engineering work
and its attendant risks, and companies and owners are fortunate in securing
them to assume duties and undertake work the performance of which is
hazardous and burdensome.
652. Contract should Make the Contractor an Independent Contractor
and Not a Servant. — To avoid the risks and dangers of the work, the relation
of the party undertaking the work to the company must be that of an inde-
pendent contractor and not that of a servant. If work be put into tlje
578 ENOINEERING AND ARCHITEGTUBAL JURISPRUDENCE. [§ 652.
hands of an independent contractor, and it is not in itself a nuisance or
unlawful, and if the work be of such a character that if properly performed
no injurious consequence will arise, and if the law does not impose a duty
upon the company or principal or take necessary precautions to protect the
rights of others who may be injured by the work, the company or principal
escapes the liability arising from any injury or damage caused by the negli-
gent or improper performance of the work.' When these conditions exist,
the owner^s or company's liability is to be determined by the fact whether
the party doing the work is an independent cootractor or is an agent and
servant of the owner or company, which must be ascertained from the facts
of each case.' Nice shades exist, and many cases are hard to reconcile, but
all seem to recognize this general rule.
Except in the three instances mentioned, the rule is invariable that the
master alone is responsible for the acts of the servant. In some cases it is
difficult to say whose servant a person is that does the injury, but when
that is decided the liability is placed/ It is absolutely essential in order to'
establish a liability against a party for the negligence of others, that the
relation of master and servant should exist,* and the liability by virtue of
the relation of master and servant must cease where the relation itself
ceases to exist.*
The responsibility grows out of, is measured by, begins and ends with,
the control of the parties doing the injury. If it is the owner's duty to con-
trol them in what they do, he is responsible for their neglect; but where
workmen do not stand in such relation to the party sought to be charged as
to make it a duty to control them, they are not his servants ; except in
some cases, where by subsequently adopting and sanctioning these acts he
renders himself legally a participator in them. That party is undoubtedly
liable who stands in the relationship of master to the wrong-doer — ^he who
had selected him as servant, from the knowledge or belief in his care and
skill, who could remove him for misconduct, and whose orders he was bound
to receive and obey, should be responsible."
The owner's liability for injuries resulting from the improper and neg-
ligent performance of the work depends upon the relation that the party
executing the work or causing the injury bears to the owner. If the rela-
tion be that of contractor and contractee, the company is not liable; if it be
that of master and servant, he (or it) is liable. A contractor therefore is
» Wood's Law of Railroads 1008, and * 40 Alb. L. Jour. 223.
many cases; Clark «. Fry, 8 Obio St. 358; » Cuff v. N. & N. Y. R Co., 35 N. J.
Connors v. Hennessy, 112 Mass. 96; Car- L. 17 [1869].
men v Steubenville, etc., R. Co., 14 Ohio * King v. K Y. Central R. Co., 66 K Y.
:^9'): Dygert 'o. Scbenck. 23 Wend. (N. Y.) 181-184.
446 Callahan v. Burlington, (tc . R. Co., * Cuff v. N. & N. Y. R. 35 N. T Law 17.
23 Iowa 562; Searle v. Laverick, L. R. 9 Q. « Allen v. Willard, 57 Pa. St. 374 [1868];
B. 122: Gilberts Halpin, 3 Jr. Jur. (N. S.) Cuff « N. & N. Y. R., 35 N. J. L. 17
306; Muviie v. Currie, L. R. 6 C. P. 24. [1869].
§ 654.] CONTRACT STIPULATIONS. 67^
not liable for injury to one of his employees caused by the negligence of a.
subcontractor, where the contractor had no control over the subcontractor.'
653. What Makes the Relation of Master and Servant. — The questions
as to wliat creates the relations of master and servant, and what conditions
are necessary to establish the relation of independent contractor, are ques-
tions extremely difficult to determine. There is irreconcilable conflict in
the decisions, and no general rule can be laid down. Each case must be de-
cided upon its own peculiar facts.' They must not be such acts as he can-
not delegate. As said before, when the work is in itself harmless and law-
ful if carefully conducted, and no duty is imposed to prevent injury, the
general principle is recognized everywhere that liability for damages occa-
sioned by the act of another exists only when they stand in the relation of
master and servant.^
A company or proprietor is not chargeable with the negligent acts of an-
other in doing work upon his lauds unless he stands in the character of em-
ployer to the one guilty of negligence, or unless the work as authorized by
him would necessarily produce the injuries, or that they are occasioned by the
omission of some duty incumbent on him." It is not enough to show em-
ployment merely, it must be shown in addition that the employment created
the relation of master and servant.^
The circumstance that a person possibly may not be capable of paying-
damages is not one which can legally be taken into consideration in order
to determine the legal liability for a wrong. The law can only afford
redress against the individual who commits it; " nor does the fact that after
the act of the subcontractor the contractor made declarations showing his
belief to be, that he was liable, make him liable; nor the fact that he was to
have secured permits make him liable.' Though the contractor's remunera-
tion is measured by the day's and hour's work of himself and his men, he ia
liable for injury caused by their negligence.*
654. The Owner or Employer Cannot have the Direction and Control
of an Independent Contractor, His Servants, nor the Work He is Doing. —
It is the intention and aim in construction contracts to create and maintain
the relation of independent contractors and to prevent the person engaged
to do the work from becoming a servant. To understandingly attempt this
it is first necessary to ascertain what is the relation of an independent con-
tractor and how it differs from a servant. The general test of the relation
between the owner and the contractor is whether the former controls the
» Wittenberg v. Friederichs (Sup.), 40 N. * McCafferty «. S. D. & P. M. R. Co., 61
Y. S. 895. K Y. 178 [1874].
» Speed V. Atl. & Pac. R. Co., 71 Mo. ^ Hexamer v. Webb, 101 N. Y. 377
303. [1886].
=* Speed V. Atl. & Pmc. R. Co.. 71 Mo. « Painter v. Mayor, 46 Pa. St. 213; and
803; Painter v. Mayor, 46 Pa. St. 213 see Udell v. Atlierton, 7 H. & N. 195.
[1863] Hale v. Johnson, 80111. 185; Barry ' City of Buffalo v. Clement, 19 N. Y.
V. St. Louis. 17 Mo. 121 [1852]; Cooley on Supn. 846.
Torts 547; Pierce on Railroads 286. » Qger v. Dairow, 61 Conn. 280.
580 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 654.
separate individual acts of the latter; whether the one has the direction,
when and where, and in what manner the other shall act; whether or
not the owner oi- employer retains the supervision, direction, and control of
the contractor or the work, and the means to be employed to accomplish it.*
To hold the owner liable for the acts of an employee, justice demands that
the former should direct and control the acts of the latter, and that is the
test which determines whether the relation is that of master and servant.
If an employer retains the power to select, direct, and discharge, he is
responsible as a master; but if he surrender the hiring, direction, and con-
trol of the workmen, he is relieved of the responsibility for their acts.'
When the power of directing and controlling the work is parted with by the
employer or company, and given to the contractor, the relation of master
and servant does not subsist, but only that of contractor and contractee.*
So long as the employer or company has no control over the workmen, or
cannot interfere with the manner of doing the work, nor discharge one work-
men or employ another, then he [it] cannot be held liable.*
In order to be chargeable for the acts of another, the person sought to be
charged must at least have the right to direct such person^s conduct and to
prescribe the mode and manner of doing the work.' As Mr. Meechem in
his excellent book on Agency has said, *' The employers' liability for the
acts of his agent within the scope of his authority depends upon the fact
that the relation of principal and agent exists. It is the principal's will
that is to be exercised; his purpose that is to be accomplished; his are the
benefits and advantages which ensue. He selects his own agent, puts him
in motion, and has the right to direct and control his actions. It is there-
fore just and proper that he should be responsible for what the agent does
while so employed.-"* "Where, however, the principal has not this control,
^ Fulton Co. St. R. Co. «. McConnell 1193; Shenrmiin & Redfield on Negligence,
(G!i.>, 13 S. E.Rep. 828 [1891]; Atlanta & § 73; Schouler Doni. Rel. 644; andseeCo]-
F. R. Co. V. Kiniberly (G:i,), 13 S. E. Rep. Jensworih d. ISew Wluitcom (Wash.). 47
277 [1891]; Wabash, St. L. & P. Ry. Co. v. Pac. Rep, 439. whicli held a city which had
Parver (Ind), 12 N. E. Rep. 296 [1887]; retained con! rol of the employee was liable
Lowell V. Boston & L. R. Co., 23 Pick. for his negligence, notwithstanding that
(Mass.) 24; Water Co. v. Ware, 16 Wall. the law required the city to do the work
(U. S.) 566; Mohr v. McKenzie, 60 111. by contract.
App, 575; Schwartz v. Gilmore, 45 111. ^ Pierce on Railroads 286; Storrs v.
455; Allen v. Hayward, 7 Q. B. 975; Utica, 17 N. Y. 104; St. Louis, etc., Ry.
Painter v. Pittsburgh, 46 Pa. St. 213; St. Co. v. Yonley (Ark.), 13 S W. Rep. 333;
Paul V. Se.tz, 3 Minn. 297; Cincinnati v. Wallaces. So. Cotton Oil (Tex), 40 S. W.
Stone. 5 Oliio St. 38; Blake v. Thirst, 2 H. Rep. 399; Carlson v. Stocking (Wis.), 65 N.
& C. 20; Sadler v. Henlock, 41 El. & Bl. W. Rep. 58; San for i v. Pawtucket St. Ry.
570; Scanimon v. Chicago, 25 111. 424, Co. (R. I.), 35 Atl. Rep. 67.
cases in 14 Amer. & Eng. Ency. Law 830, ^ Conners v. Heunessy, 112 Mass. 96
831 and 833; Leavitt v. Bangor & A R. [1873]; Mumby '«. Rowden, 25 Fla. 454;
Co. (Me.), 36 Atl. Rep. 998 [1897]; collee- Morgan v. Smith (Mass), 35 K E. Rep.
Hon of cases in Blackstone's (Students' 101; Campbell v. Lumsford, 83 Ala. 512.
Ed.); Evans's Principal and Agent, ?iote 1, ■'Storrs d. Utica, 17 N. Y. 104
39. 581; Humptoni). Unterkircher(lovva), 66 ^ Wood on Master and Servant 281;
N. W. Rep. 776; Cooky on Torts 548: ^wa^/y Rome & D. R. Co. v. Chasteen (Ala.), 7 So.
cases in Pierce on Law of Railroads 286, Rep 94.
287; awdw Dillon's Munic. Corps., § 974, p. « Andrews, J., in King v. New York,
§ 655.] CONTRACT STIPULATIONS. 681
a different rule prevails. Neither reason nor justice requires that he should
be held responsible for the manner of doing'an act when he has no power oi
right to direct or control that manner. The party employing has the selec-
tion of the party employed, and it is reasonable that he who has made choice
of an unskillful or careless person to execute his orders should be respons-
ible for any injury resulting from the want of skill or the want of care of
the person employed; but neither the principal of the rule nor the rule
itself can apply to a case where the party sought to be charged does not
stand in the character of employer to the party by whose negligent act the
injury has been occasioned/' ^ If therefore the principal, using due care
in the selection of the person, enters into a contract with a person exercis-
ing an independent employment, by virtue of which the latter undertakes
to accomplish a given result, being at liberty to select and employ his own
means and methods, and the principal retains no right or power to control
or direct the manner in which the work shall be done, such a contract does
not create the relation of principal and agent or master and servant, and the
person contracting for the work is not liable for the negligence of the con-
tractor, or of his servants or agents, in the performance of the work."
Whether or not the owner has by his contract retained any control over the
work is a question for the court, and cannot be left to the jury, as the inter-
pretation of contracts, oral or written, is for the court."
655. The Relation of Independent Contractor is not Determined by the
Term of Service nor by the Wages. — " Tlie independent contractor is usually
paid, in common parlance, by the job, but the fact that he is paid by, or has
charged by the day, does not necessarily destroy the independent character
of his employment."* So when a carpenter was employed under a continu-
ing contract to make all repairs and alterations upon works, he to furnish
tools and the company the materials, at $2.50 per day for his own services
and 25 cents profit on each man employed by him, the carpenter to hire,
pay, superintend, and discharge the men employed by him, the company to
dii-ect how the work was to be done, it was held that a man hired by the
carpenter was an employee of the carpenter, and not of the company/
etc . R. R. Co., 66 N. Y. 181; see also Mc- 849; City of St. Paul v. Sei'tz, 8 Minn. 297;
Ciififertyv. SpuytenDuyvil, etc., R. R Co., Clark v. Fry, 8 Ohio St. 858; Cuff v. New-
61 N. Y. 178; Clark v. Fry, 8 Ohio St. ark, etc., R. R. Co., 85 N. J. L. 17; Ryan
858; Gahagan v. Aerometer Co. (Minn.), 69 «, Curran, 64 Ind. 345; Myer ■». Hobbs, 57
N. W. Rep. 914. Ala. 175.
^Justice Rolfe in Hobbit v. London, ^ Bran nock ?). Elmore, 114 Mo. 55.
etc., Ry. Co.,4Exch. 255. * Harrison v. Collins, 86 Pa.' St. 158;
^McCarty V. Second Parish, 74 Me. 318; Forsyth v. Hooper, 11 Allen (Mass.) 419;
Harrisons. Collins, 86 Penn. St. 156; Lin- Corbin v. American Mills, 27 Conn. 274;
ton V. Smith, 8 Gray (Mass.) 147; Bennett Geer v. Darrow, 61 Conn. 280; Dane ©.
?7. Truebody. 66 Cal. 509; Bailey ?7. Troy «& Cochrane Cbem. Co. (Mass.), 41 N: E.
Boston R. "R. Co., 57 Vt. 252 ; McCafferty Rep. 678; Hexamer i). Webb. 101 N. Y.
«. Snuyten Dnyvil, etc., R. R. Co., 61 N. 877 [1886]; Ronrke v. W. M. Colliery Co.,
Y. 178: Hexamer v. Webb, 101 N. Y. 377; 1 C. P. D. 556.
Hass V. Philadelphia, etc.. Steamship Co., ^ Dane v. Cochrane Chem. Co. (Mass.), 41
88 Penn. St. 269; Boswell v. Laird, 8 Cal. N. E. Rep. 678.
469; Hilliard v. Richardson, 8 Gray (Mass.)
682 ENGINEEBINQ AND ARGUITEGTVRAL JURISPRUDENCE. [§ Q6Q.
When a person is employed to construct a building with materials to be
furnished by the owner, and -according to certain plans, the person to
receive in payment day wages for himself and the other men engaged on
the work, who were to be hired and paid by him, the court will hold him
an independent contractor, for he occupies the relation of master to such
employees, for whose negligence the owner is not liable, the work contracted
for being lawful.' If the contract be parol, and there is evidence that one
performing work for another represented the will of that other, not only as
to the result of the employment, but also as to the means by which that
result was to be accomplished, the question whether he was an independent
contractor, or an agent for whose acts the employer was responsible, should be
submitted to the jury.""
The fact that the employee is paid by the job does not make him an in-
dependent contractor if he is at all times subject to the control of the
employer and works in the manner the employer directs and employs such
men as he indicates.*
656. Contract Clause should Give Control of Men and Manner of
Doing Work to Contractor. — In drafting an engineering contract great
care must be taken to leave the mode and manner of performing the work,
the hours or days that the work shall be carried on, the means by which it is
to be executed, and the persons by whom it shall be done, to the contractor.
If by the terms of the contract the owner or employer retains the power to
select and discharge the workmen, and can control them in the discharge of
their duties, can hold them responsible and direct them as to the mode and
manner in which they perform their duties, they may justly be regarded as
agents and servants of the owner or company, and he (it) is responsible for
their misconduct and negligence.* The responsibility is equal and similar
to that which exists in the ordinary case of principal and agent.'
657. Relation of Contractor to Owner where Workmen are Furnished
by Contractor. — The fact that the workmen are furnished by a contractor,
upon the requisition of an officer of a department of public works of a city,
and are paid by a contractor, does not alter the case; if the contractor does
not have the control of the men, and the direction of the mode and manner
or means by which the work is to be accomplished, then they are not his
his servants, but those of the city.* Therefore, a person employed by the
> Emmerson v. Fay (Va.) 25 S. E. Rep. * Story on Agency [7th ed.], p. 567 ;
886. Cincinnati v. Stone, 5 Ohio St. 38; see Clark
« Barge v. Bousfield (Minn.),' 68 N. W. v. Vermont & C. R. 28 Vt. 103; Pawlet
Rep. 45. -». Rutland & Wash. R. 38 Vt. 297 ; and
» Sadler v. Henlock, 4 El. & Bl. 570; Blackwell v. Wiswall, 24 Barb. 355; Ladd
accord, Frink v. Missouri Fur. Co., 10 Mo. i\ Chotard, 1 Ala. 366; Felton v. Deall, 22
App. 61 ; Corbin «. American Mills, 27 Vt. 170; Rapson v. Cubitt, 9 M. & W. 710;
Conn. 274; and see Geer«. Darrow,61 Conn. Winterbottom v Wright, 10 M. & W. 109-
230. Ill; other cases collected, 29 Am. & Eng.
* Bibbs' Admr. v. Norfolk & W. R. Co., Ency. Law 947, noU 6.
14 S. E. Rep. 176 ; Butler v. Townsend, « Beatty v. Thileman, 8 N.Y. Supp. 645.
126 N. Y. 105.
§ 667.] CONTRACT SIIPULATIONS. 583
agent of the owner of a street railway, at a stipulated sum per month, to
run a car and furnish a driver, the car and the road being controlled and
the work directed by the agent, is not an independent contractor, and the
owner is liable for the negligence of such employer's servants.' And when
a subcontractor for the brickwork of a building, on account of lack of
work for his employees, put some of them to work on an excavation not in-
cluded in his contract, under an agreement with the contractor that the
subcontractor should pay their wages, which should be repaid him by the
contractor, the laborers worked under the direction of the contractor.
When the excavation was completed the subcontractor paid the laborers
and was repaid by the contractor, and it was held that the laborers, while
working on the excavation, were not the subcontractor's servants, so as to
render him liable for their negligence.'^
An agreement by a contractor to furnish men to prosecute work he has
undertaken, for which he is to be paid the cost of their labor increased by
fifteen per cent., creates no privity between the owner and the laborers.'
When one undertakes to complete a job that had been abandoned by
another contractor, and is to receive the cost of the labor and materials
furnished and ten per cent, additional, he will be held to be an independent
contractor and not a servant." Under such a contract it has been held that
the contractor could recover what he had paid subcontractors for portions of
the work, including their customary profits as the cost of the work, and in
addition his own per cent, profit agreed upon/
These cases should be distinguished from those cases where one furnishes
a servant with personal property which he furnishes for hire. There is a
principle in law that where a person hires the personal property of another
who furnishes a servant to manage the same, though the hirer acquires the
right to superintend and direct the conduct of the servant, the latter con-
tinues to be the servant of the owner of the property, who is responsible for
any negligence of the servant in the performance of his service for the
hirer, even where the hirer only is interested in such service.' Such cases
are those where one hires a horse and. carriage with a driver; but cases
might arise where it would be difficult to draw the line, though one may
distinguish between a livery rig and a hod and shovel of a common laborer.
The question might be asked if the furnishing of a plow or scraper with
team attached would come within the former or latter rule. It has been
held that the fact that the employer furnishes the tools, materials, or appli-
ances with which the work was to be done by the contractor does not
' Jensen t. Barbour (Mont.), 39 Pac. ^ New Orleans, etc., v. Reese, 61 Miss.
Rep 906. 581.
2 Cotter V. Lindgren (Cal.), 39 Pac. Rep. * Hamilton v. Coogan (Com. PI.), 28 N.
950. Y. Siipp..21; and see Ford v. St. Louis,
» United States v. Driscoll. 96 U. 8. 421 etc.. R. Co., 54 Iowa 723.
[1877]; other cases, 14 Am. & Eng. Ency. « N. O., B. R. & M. R. R. Co. v. Nor-
Law 749; hit see Beatty v. Thilemau, 8 N. wood, 62 Miss. 565 [1885].
Y. Supp. 645.
684 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 658.
render him liable for negligence in their use by the contractor or his
servants.'
, If, however, he negligently furnishes defective appliances, he would be
liable for an injury happening on that account.'
658. Relation of Master and Servant is Established if Control of
Contractor is Reserved.— " The simple test is," says Mr. Wood, in his book
t)n master and servant, *'Who has the general control over the work? If
the person employed reserves this power to himself, his relation to his
employer is independent, and he is a contractor; but if it be reserved to the
-employer or his agent [engineer], the relation is master and servant."^
The relation of master and servant does not cease so long as the employer
reserves any control or right of control over the method and manner of
doing the work or the agencies by which it is effected.*
Whether an owner or company retains such control over work to be
done and the manner of doing it as to render himself responsible for in-
juries occasioned by the negligence of a contractor and his employees in
the performance of the work depends upon the construction given to the
contract.' It is a question to be decided in each case largely if not entirely
irom the terms of the contract.
It has, therefore, been held that a deposition by the engineer of a com-
pany that the duties of the contractors were to build the road so that it
would be accepted by the engineer-in-chief , that the owner controlled the
work only indirectly and as manager of his superior, that the details were
left to the contractors, and that the results of the work were what the rail-
way company was after, was not admissible as evidence; that as the contract
stated the relative duties of the contractors and of the engineer, and the
relation of the latter to the former, the evidence of the engineer was a
mere opinion as to the legal effect of the contract, and, therefore, incom-
petent.'
659. Contractor may be a Servant, though Called a Contractor. — What
the party is called or what term is applicable to him makes no difference;
the duties and obligations required by the contract, and the power of direc-
tion and control given or reserved therein, determines the true relations of
the parties and who shall bear the responsibility.' The intention of the
* Riley ?). State Line Steamship Co., 29 Owners liability for maletials ordered
La. Ann. 79. by contractor as owner's agent discu-sed in
" Meechem on Agency, § 748. Steele v. McBurney (Iowa), 65 N. V" Rep.
^ Wood's Master and Servant, 614 ; see 333.
also K^Wyv. Cohoes Knitting Co., 32 N.Y. 'Gulf, C. & S. F. Ry. Co. t. Shearer
Supp. 459; McCann v. Waltham (Mass.), (Tex. Civ. App.), 21 S. W. Rep. 133; hui
40 N. E. Rep. 20. see Carlson v. Stocking (Wis.), 65 N. W.
^ Wood's Master and Servjmt 281 ; Rep. 58, which held it was a question for
Painter v. Mayor, 46 Pa. St. 213; and cases the jury to decide.
cited and reviewed. ■" Semble Norwalk Gas Lt. Co. «. Nor
5 Lineman d. Rollins, 137 Mass. 123 walk (Conn.), 28 Atl Rep. 32.
{1884], and cases cited.
§ 661.] CONTRACT STIMULATIONS. 58.7
parties has no weight in determining the relation to one another or their
liability to an injured party; the whole question must be decided by the
test who has the immediate direction, control, and management of the
person or things causing the injury. The contract is the instrument by
which the control is to be retained or surrendered, and the limit of the
control and the extent of the reservations are determined by it.
The character and difficulty of engineering works renders it desirable,
if not necessary, for the company to retain a general direction and super-
vision of the work. And this the courts have permitted to a greater extent,
it is believed, than in any other business.
660. The Owner or Employer May Direct as to the ITltimate Object or
Eesult of the Undertaking. — The exceptions to the rule as laid down are best
expressed in words often quoted, and which are particularly true of engineer-
ing works, which are, "That the true test is to ascertain whether the service
is rendered in the course of an independent employment, in which the con-
tractor represents the will of his employer only as to the result of his work,
and not as to the fneans by which it is accomplished.^
The employment, says Mr. Meechem in his work on Agency, " is regarded
as independent where the person renders service in the course of an occupa-
tion and performs the v/ill of his employer only as to the result of his work,
iind not as the means by which it is to be accomplished." "
If the employee or contractor is engaged to accomplish a particular object,
and the mode and manner in which it is to be done and the means to be
employed in its accomplishment are left to his skill and judgment, then the
owner or employer are not liable for injuries due to the acts or negligence
of the contractor, or of his agents and servants. The contract may provide
for a result to be attained, without the right to interfere in the conduct of
work. An employee bound only to produce or have a certain result brought
about, even though a result of labor, and who is free to dispose of his own
time and personal efforts according to his own pleasures, without responsi-
bility to his employer, is an independent contractor and not a servant.'
661. The Right of Selection is an Important Element in Determining
the Relation of the Parties. — Some courts have put great stress upon the
hiring and paying of the workmen. One says, the right of selection is the
basis of the responsibility of a master or principal for the acts of his agent.
No one can be held responsible as principal who has not the right to chose
' Sbearnian & RedfieM on Negligence, Louis, 17 Mo. 121.
§ 76; Harding ?>. Boston (Mass.). 39 N. E. 'Vane v. Newcombe, 182 U. S. 220,
Rep. 411; Storrs v. Utica, 17 N. Y. 104; telegraph line contractor ; also see Aiken v.
Wabash, St. L. & P. Ky. Co. v. Farver Wassou, 24 N. Y. 482, contractor not a
(Ind.), 12 K E. Rep. 296 [1887] ; Cun- «ermn^- Wakefield tJ. Fargo. 90 N. Y. 213.
ningha-n ^ International R. Co., 51 Texas general manager not a laborer or servant;
503 [1879]. Gurney v. Atl. & Gt. W. Ry., 58 N. Y.
'^ Meechem on Agency, § 747; c^.■<^/?5' Har- 3o8, counselor-af-law not an employee, ^2
rison v. Collins, 86 Pa. St. 153; Peck v. Wis. 541, employee of contractor, and 45
Mayor, 8 New York 222; Barry v. St. Ind. 96.
686 ENOINEERINO AND ARCEIT^CTURAL JURISPRUDENCE. [§ 662.
the agent from whom the injury flows/ Something more than the mere
right of selection is essential to the relation of master and servant. That
right must be accompanied with the power of subsequent control in the
execution of the work contracted for, and if that power is wanting the rela-
tion to which it is essential does not exist."
In the words of another court, " The party employing has the selecting
of the party employed, and it is reasonable that he who has made the choice
of an unskillful or earless person should be responsible for an injury result-
ing from the want of skill or want of care of the person employed. How-
ever, neither the principle of the rule nor the rule itself can be applied where
the person sought to be charged does not stand in the relation of master or *
principal to the party whose negligent act lias occasioned the injury.""
662. The Fact that the Contractor Carries on an Independent Employ-
ment may be an Important Element in Determining His Relationship. —
Other circumstances may afford a strong presumption that an employee is
a servant: the fact that he always serves the same person, and' that he has
no independent occupation.* A large number of cases are decided on the
ground that if the employee exercises a distinct and independent employ-
ment, he and the persons whom he employs under him are not servants of
the employer, but are servants of an independent contractor.* The distinc*
tion made in many cases is, that if the employee carries on an independent
employment and acts in pursuance of a contract with the employer by
which he has agreed to do the work on certain specified terms, in a particu-
lar manner and for a specified price, then the employer is not liable. The
relation of master and servant does not subsist between the parties, but only
that of contractor and contractee. The power of directing and con-
trolling the work is parted with by the employer, and given to the contractor^
hut if the work is done under a general employment, and it is to be per-
formed for a reasonable compensation or for a stipulated price, the employer
will be liable if he retains the right and power of directing and controlling
the time and manner of executing the work, or of refraining from doing it,
if he deems it necessary or expedient. This distinction is recognized in
many cases."
These circumstances as evidence of independent employment to ga
before the jury are important when no written contract has been entered
into, and it is difficult to show what was the understanding between the par-
ties. Mechanics are called in to make improvements or repairs, and what
' Kelly v. Mayor of New York, 1 Ker- §§ 76-78; Dressil v. Kingston, 32 Hmi 533.
nan 436; hut see Boswell v. Laird, 8 Cal. ^ Story on Agency, g 454.
'169 [1858]. • Forsytli v Hooper, 11 Allrn 419; Lin-
2 Boswell «. Laird, 8 Cal. 469 [1857], a ton v. Smith, 8 Gray 147; Hillard v. Ricb-
long case reviewing the law up to that time. ardson, 3 Gray 349; Brackett v. Lubke, 4
^ Jewett, J., in Pack v. Mayor of New Allen 138; Conners v. Hennesey, 112 Mass.
York, 8 N. Y. 222. 96 [1873] : Morgan v. Smith (Mass.), 35 N.
* Shearman & Redfield on Negligence, E. Rep. 101.
§ 663.] CONTRACT STIPULATIONS. 687
was or was not the nature of the understanding is very difficult to deter-
mine. As a general rule, where a person is employed to perform a certain
kind of work, in the nature of improvements or repairs to a building by the
owner thereof, which requires the exercise of skill and judgment as a
mechanic, the execution of which is left entirely to his discretion, with no
restrictions as to its exercise, and no limitations as to the authority conferred
in respect to the same, and no provision is especially made as to the time in
which the work is to be done, or as to the payment for the services rendered,
and the compensation is dependent upon the value thereof, such person does
not occupy the relation of a servant under the control of the master, but he
is an independent contractor, and the owner is not liable for his acts or the
acts of his workmen.* The fact that the owner furnishes the tools, machin-
ery, and the building in which the work is carried on, does not make
him the master, when the contractor employs, pays, and has sole control
over the workmen.'
663. The Mode, Method, and Manner of Doing the Work may be Pre-
scribed in the Specifications and Plans. — A company or employer may direct
work with regard to the minutest detail if the directions are prescribed and
incorporated into the plans, specifications, and contract, and agreed to by
the contractor." This is upon the theory that the contractor accepts,
approves, and adopts the methods and plans proposed by the company or
owner as his own. By the agreemeiit he undertakes on his own responsi-
bility and by his own methods and means to perform and complete the work
as required by the contract, plans, and specifications.*
It has therefore been held that one who contracts to do a specific piece
of work, furnishing his own assistants and executing the work entire in
accord with his own ideas, or in accordance with an accepted plan, without
being subject to the orders of the owner in respect to the details of the
work, is clearly a contractor and not a servant, and a person injured by his
negligence in the performance of the work would have no right of action
against the party for whose benefit the work is done.^ An owner is not
liable for damages resulting to a third person from boards intended to be
used in repair and alterations of his house when they have been deposited
in the highway in front of his land by the contractor's teamster if the con-
tractor was to do the work under a written contract according to a plan and
1 Painters. Pittsburgh 46 Pa. St. 213, 3 Mayor, 8 N.Y. 222; St. Louis, etc., R Co.
Am. L. Reg. (X. S.) 350 [1864], foot note v. Willis, 33 Kan, 330.
<ind collection of cases. ^ Hale v. Johnson, 80 111. 185 [1875];
2 Reiertj. Detroit St. & Sp.Wks. (Mich.), citing also Scamraon «. City of Chicago, 25
67 N. W. Rep. 120. 111. 424; 2 Hilliard on Torts 537. § 11;
^ Semhle, Smith v. Milwaukee Builders' Wharton on Neg'ce, § 181, and cases cited:
and Traders' Exch. (Wis.), 64 N. W. Rep. Shearman & Redfield on Neg'ce, § 77;
1041; Hunt v. Raihoad Co., 51 Pa. St. Harris v McNamara (Ala.), 12 So. Rep.
475. 103; Morgan v. Smith (Mass.), 35 N. E.
4 Smith V Milwaukee B. & T. Exch. Rep. 101.
<Wis.), 64 N. W. Rep. 1041; Pack v.
588 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 664.
specification annexed and to furnish his own materials/ Upon the owner or
company the law imposes a duty to see that the plans, specifications, and
contract are appropriate, suitable, sufficient, and meet the necessities of
the case, and that the work be entrusted to men capable and with proper
skill, means, and knowledge to perform the work." Authority to insist
generally that work shall be done according to the terms of the contract,,
but reserves no right to direct as to the manner of performance, does not
render the company liable to a third person for injuries caused by negligence
in the execution of he work."
In order to establish the company's liability for acts of the contractor,,
the control or direction reserved must be such as can be changed or modified
as the company or employer may chose to declare from time to time. He
or it must have retained power to give instructions as the period and con-
dition of the work demand, whether contrary or in keeping with earlier
orders, specifications, and plans. And the control reserved must be both
general and special, and not only be in regard to what work shall be done,,
but also how it shall be done.* A contract which requires a company's depot
business to be done under the control of the superintendent and to "his
satisfaction, and if not so done, reserving the power to revoke the contract,
together with the fact that the employee performed no service for any one
else, made the employee a servant, and t*ha't he was not an independent con-
tractor.^ The company employed the help, but put them under the control
of the contractor; but the company could at any time remove them and
substitute others. The fact that all business was to be performed under
the supervision of the company's superintendent, who had express authority
to direct the manner in which it should be done, was strong evidence of
service. This reservation of the control or direction as to the manner of
doing the work is fatal to the relation of independent contractor. In this
case there was also the selection and hiring of the the workmen, and further
than that, there was an element of duty which every common-carrier owes
to the public to protect it from injuries. The same rule exists between
principal contractors, and subcontractors; if the former reserves no right
to direct the work, and he has not in tsLCt given any directions, then he is
not responsibb for the acts of his subcontractor."
664. What Control or Direction, if Any at All, may be Reserved to the
Owner. — The authorities all recognize the rules laid down in the preceding
sections, viz.: that the owner must not retain present control of the mode,
manner, or means of doing the work, though he may beforehand specify in
writing or designate by plans how the work shall be done, and he may direct
the restiUs of the work.
' Hilliard v. Richardson, 3 Gray (Mass.) * 40 Alb. L. J. 223.
849 [1855]. 6 Speed v. A. & P. R. Co., 71 Mo. 303.
2 Connors v. Hennesey, 112 Mass. 96 « Buffalo v. Clement, 19 N. Y. Supp.
[18731. 846; accord, Slater v. Mersereau, 64 N. Y.
» Slater u. Mersereau, 64 N.Y. 138 [1876]. 138 [18761.
§664.] CONTRACT STIPULATIONS. 689
The conflict in the decisions arises from the interpretation of the rules^
and is due to the personal judgment of different courts as to what is a suf-
ficient control of the work and the operatives. Some courts hold that the
owner shall have surrendered the etitire control over the work, the contract-
or, and employees, holding the owner responsible when the contractor
has not the full nor immediate control of the negligent party; ' that to
escape liability the owner must entirely abstain from control, and that if he
personally interfere with the work and assume control of it, or of some part
of it, and through such interference, whether as a direct result or Jis a con-
sequence thereof, injury results to a servant, he is responsible.'
It has been held that when a city ordinance gave its consent to the
construction of a work by a private corporation, and reserved the right, in
case it became necessary in the progress of the work to remove a sewer, to
supervise and control the work of removal and reconstruction, that it was
the duty of the city officers to exercise such supervision and control, and
that the fact they did not exercise any control or supervision was no defense
in an action for damages resulting from negligent construction by the con-
trator. It was held that the duty was imposed by the charter and recog-
nized in the ordinance.' Other cases maintain that the control reserved
must be both general and special, and not only as to tuhat work shall be
done, but also as to liotv it shall be done.* Then there are cases that have
held that where the contractor is independent and a properly competent
person, the employer's 7Hglit to control any part of his work is immaterial;
that it is only the employer's actual interference or assumption of control
that makes him liable for injuries caused by the contractor's negligence.'
Where a railroad company employed a contractor to lay its track under a.
a contract, by which, if strictly carried out, the party would be an inde-
pendent contractor, but afterwards the parties abandon the contract, and
the railroad company, by its officers and servants, takes charge of and super-
vises the work, gives directions as to how the roadbed shall be constructed,
and assumes general management and control of the enterprise, the railroad
company cannot relieve itself from liability for injuries caused by negligent
or improper construction." In fact, it seems that any interference, assump-
tion of control, or direction on the part of the owner of work being done
» Schwartz v. Gilmore, 45 111. 455 [1867]; Railroad Company. 15 Amer. & Eng. R.
immediate coiitrol, M-or^SLU V Smith (Mass.), Cas. 101, and notes; see also Lesher v.
35 N. E. Rep. 101. ^ Navigation Co.. 56 Am. Dec. 495; Bailey d.
2 Faren v. Sellers. 37 Alb. L. Jour. 321 Mayor, etc., 38 Am. Dec. 669; Hilliard v.
[1887]; Thompson's Negligence 213, No. 40; Richardson, 63 Am. Dec. 743, and notes.
Wood's Master and Servant 837; Cooley's ' Norwalk Gaslight Co. v. Norwalk
Torts 548; Heffermau v. Beckard, 1 Rob. (Conn.). 28 Atl. Rep. 32; and see Buffalo v.
487; Whartons Negligence, §§ 186, 205; Clement, 19 N. Y. Supp. 846; Eby « Leb-
Boweri). P.ate. 1 Q. B. D. 321; Gilbert-tJ. anon Co. (Pa.), 31 Atl. Rep. 332, in ab-
Beach. 16 N. Y 608; Hughes v. Percival, sence of interference with work; and see
L. R. 8 App. Cas. 444. Allen v. Havward, L. R. 7 C. B. 975.
» Frink v. St. Louis, 71 Mo. 52 [1879]. « Savannah & W. R. Co. v. Phillips (Ga.)^
4 40 Alb. L. Jour. 223; see Hughes v. 17 S. E. Rep. 82.
590 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ ^6.
by contractors under a special agreement giving the latter the control of
the work may render the owner persomiUy liable for injuries caused to third
persons by the negligent conduct of the contractors in doing the work so
directed.' If the contractor is without doubt an independent contractor^
and the owner has not by the contract retained the right to direct the work
and control the contractor, yet if the owner takes it upon himself to direct
and the contractor yields to his direction and control, then the owner is
liable for the injury that results."
The best advice that one can give an owner is to keep a close mouth
when on or about works, and to close it entirely to his contractor. A stero-
typed answer to all questions or a convenient reply to all inquiries pertain-
ing to the work, which refers all questions to the contract and specifications
or architect, would best evade responsibility for damages, extra work, delay,
and many other kindred accounts which an owner is frequently called upon
to settle.
. 665. Instances in Which the Contractor has been Held a Servant of
the Owner or Company. — The effect of reservations as made in construction
contracts by the stipulations commonly employed will be understood best by
giving the interpretations put upon them in the decisions rendered.
The owner or employer has been held a master, and the employee a ser-
vant, when the former retained a general or special or supervisory control
of the work. Such control over the mode, manner, method or means of
doing, performing, or ^conducting the work has been held to be reserved
when the contract stipulation employed required:
that the contractor shall perform his work under the supervision and
direction of the architect, who was declared to be the superintendent of the
owner, reserving also the right to change the plan of the work; '
that the engineer shall have superintendence of the improvement, and
that any person employed on the work disobeying the city engineer shall be
discharged; *
that all of said work shall be done carefully and under the direction and
subject to the approval of the owner; ^
that the work shall be under the supervision of the engineer and subject
to his orders; '
that the contractor shall rebuild a wharf and replace parts in such a
manner as the company through the engineer shall require, and shall sub-
' Hefferman r. Benkard, 1 Robt. (N. Y.) 887.
432 [1863]; and see Hughes v. Percival L. ^ Linneman v. Rollins, 137 Mass. 123.
R. 8 App. Cas. 444 ; Bower v. Peate, L. R. Work to be " subject to the acceptance of
1 Q. B. D. 321. engineer," has been heldto mean that "the
2 Semble, Gilbert v. Beach, 16 N. Y. 607 work should be done to his satisfaction,"
fl858]. Pollock V. Penna. I. W. Co., 34 N. Y.
a Schwartz v. Gilmore, 45 111. 455 [1867]; Supp. 129.
accord, Camp v. Church Wardens, 7 La. « Chicago v. Joney, 60 111. 333 [1871], in
Ann. 322. this case the city also reserved the right to
'* Cooper XI. Seattle (Wash.), 47 Pac. Rep. dismiss the contractor's workmen.
§ 665.] CONTRACT STIPULATIONS. 691
mit to the supervision and direction of the company's engineer, and do the
work to his satisfaction; *
that the work shall be carried out according to the directions of the
supervising architect, whose decisions on all points I agree to accept as final; *
that the work shall be done as the engineer may direct, any employee re-
fusing to obey his orders to be discharged by the contractor."
The mere fact that the owner's engineer had no authority over the con-
tractors except to see that the work was done according to contract does not
■establish that the contractors were independent.*
Frequently it will be found that these cases which held the contractoi' a
€ervant, when the control reserved by the contract was remote or had refer-
-ence to the design, plan, materials and general results of the contractor's
undertaking, depended upon other circumstances and rules of law, and that
it was not the contract stipulations alone that determined the question. In
^n Illinois case before mentioned, where the parties who contracted with a city
to do work under the supervision of its engineer and subject to his orders
were held servants for whose negligence the city was liable, it appears from
the contract that the city retained a supervisory control over the work. It
had power to dismiss any persons employed by the contractors on the work,
and the dismissals by the representatives of the city were final and conclu-
sive in every case that might arise under the contract. The court declared
that here was dependency and serviency in the contractors, and for their
negligence the city was responsible.' By the contract the entire work was to
be under the immediate direction and superintendence of the city through its
board of public works, and the contractor, being under the direction and con-
trol of his employer, the employer was held liable for his negligence. There
was another element in this case, viz : It was shown that the work was done
at the point where the accident occurred at the very time and in the manner
in which it was directed by the city.' This work was the deepening of the
Illinois and Michigan Canal, and was negligently done so as to leave a reef
of rocks on which the claimants boat struck and sank. The city was direct-
ing merely as to the results, and that was the extent of their superintendence,
and it is submitted that if this case is sustained it should not be upon the
ground of master and servant, but because it was either the duty of the city
to make the canal safe for boats or that it was a natural consequence of the
way it was authorized to be done. The fact that the benefit of the work
-accrued to the city cannot shift the liability from where it properly belongs.
1 The N. O... Mobile & C. R. Co. -». Jour. 321 [18871.
Hanninir, 15 Wallace 649 [1872]; semhle, ^ Larson v. Met. St. Ry. Co. (Mo.), 19 S.
Chicago v. Dermody, 61 111. 431 [1871]; W. Rep. 416.
aw(i «ee Carman «. Steubinville. etc., R. Co., ^ T^yj^r B. & H. Ry. Co. v. Warner
4 Ohio St. 399; Lerandat u. Saisse, L. R. 1 (Tex.), 32 S. W. Rep. 868.
€. P. 152; Lake Sup. Iron Qo.d. Erickson, * Chicago v. Joney, 60 111. 383.
39 Mich. 492: Philadelphia, etc., R. Co. v. • City of Chicago v. Joney, 60 111. 38a
Phila. Tow Bt. Co., 23 How (U.- S.) 209. [1871], and cases cited.
«Faren v. Sellers (La.), 37 Alb. Law
592 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ Q'^Q^
Another case in which a city was held liable for injuries caused by th&
abandonment and neglect of a job of grading on one of its streets was a-
contract which required the work to be done under the supervision and to
the approval of an engineer appointed by the street commissioners, and the-
contract reserved power to complete the work at the expense of the con-
tractor if at any time the work should not progress according to the terma
of the contract. Tlie work was not completed per contract, but was
abandoned, and the court held, tiiree judges dissenting, that the city was-
liable to an adjoining property owner for damages from water diverted upon
his premises, as it permitted these excavations to remain, when it had power
and right to take charge of and complete the work and thus protect the ad-
joining property from injury; that when work was done under contract not
in its nature a nuisance, but which becomes so by reason of the manner in
which the contractor has performed it, the one who directed the work to be
done becomes at once responsible for the nuisance, if he accepts the work
in that condition. The liability in this case can hardly be traced to the
contract reservation, but to the principle that the injury was an ordinary re-
sult of the city^s negligence. When the contractor abandoned his contract^
the city was under obligations to remedy defects in the street.
It may be difficult to distinguish between damages to residents upon a
street by water and damages by blasting. Howevsr, if a city contracts for
work that in its progress will divert and cast water upon the land of another
it should be held liable for it.^
666. Instances in Which General Supervision and Direction have been
Held Not to Create the Relation of Master and Servant. — The greater and
better tendency of later decision is to be more liberal in the application of the
rule and to permit the owner to reserve a general supervision and direction,
of work and yet uphold the relation of independent contractor. The difficul-
ties attending operations, the impossibility of foreseeing obstacles and to pro-
vide for the thousands of changed conditions that may arise, and the great
necessity of remedying evils promptly, that no delays shall occur, render it
almost necessary that a general supervision should be retained over the pro-
gress of work, that the ultimate object and result of the work may be ac-
complished. Many courts have appreciated this and have given such reser-
vations a liberal construction, and it is believed that the general tendency is
to follow those decisions. A liberal construction of such stipulations will
best carry out the evident intention of the parties to the contract, and place
the liability on the shoulders of the one who has expressly assumed it.
Clauses as a rule are incorporated to protect the company and save it harm-
less from any damages arising from the contractor's or his servant's acts. No'
hardships are created and no liability bestowed, but those that were antici-
pated and assumed.
- - » Vogel 'D. New York, 92 N. Y. 10 [ 1883].
§ 666.] CONTRAGT STIPULATIONS. 593
It is well settled that the owner may determine what work shall be
done and how it shall be done, if in the beginning he incorporates that
determination in the contract, specifications, and plans ; and it is now
pretty generally settled that he can also retain a general direction and con-
trol as to what shall be done or as to what results shall be reached.*
It therefore follows that changes may be made as to the size, quantity,
or amount of work to be done, and that the owner or his engineer may
superintend and direct what shall be done without being liable for negli-
gence in the manner of doing the work, though it was directed to be done
by him.' A reasonable construction of a contract to do work in a substan-
tial and workmanlike manner and in accordance with the plans, specifica-
tions, and instructions furnished by the company does not give the com-
pany the power to direct the mode of accomplishing the work, but leaves
that to the skill and judgment of the builder. The word instructions
should be held to refer to such questions as the kind of structure, the plan-
ning of the building, its design, materials, combinations, and not to give
the company the control of the manner of doing the work so as to render
them liable for negligence in its performance.'
In further support of this doctrine we find cases that have held the
relations of the parties not changed by a clause in the contract by which
the contractor engages to conform the work to such further directions as
'may be given by the city engineers or street commissioners, and to do it to
their satisfaction. The court held that this agreement only entitled these
officers to direct the results of the work and not the manner of performing
it; that it gave the city the power to direct as to the results of the work,
but without control over the contractor or his workmen as to the manner
of performing it, which control alone furnished a ground for holding the
owner liable for the acts of an employee.*
The fact that the engineer had power to interpose in certain easels is not
conclusive as to the contractors' status. So long as the contractors fulfill
their stipulations neither the owner or company or their engineers have
any control over them. The engineer may stand in the relation of an
umpire between the owner and the contractors in certain contingencies. If
no act has been done by the contractors which authorizes an interference
either by the owner or the engineer, then the contractors must be considered
as in possession of the work.* So under a contract with a city to build a
» Hunt V. Pa. R. Co.. 51 Pa. St. 475: St. Seld. 222; Kelly v. Mayor, 1 Kernan 432.
Louis, etc., R Co. v. Willis, 38 Kans. 330; » Hunt v. Tlie Penua. R. Co., 51 Pa. St.
Edmunson v. Pitlsburirh, etc., R. Co., Ill 475 [1866]; Slater v. Merserenu, 64 N. Y.
Pa. St. 316; many cases cited, 14 Amer. & 138 [1876]; hut see Farren v. Sellers (La.),
Eng. Eiicy. Law 837-838. 37 Alb. L. Jour. 321.
' Cuff «. N". & N Y. R. Co., 3.5 N. J. L. * Pack v. Mayor, 8 N. Y. 222 [18531
n [18691; Steel v. S. E Rail-vav Co . 16 Kelly v. Mayor, 11 N. Y. 4.S2 [1854].
C.B. 550; Caryi?. Chicago. 60111. App. 341; » Stone v. Cheshire R. Co.. 19 K H.
Brown v. Accrinsrton Cotton Co., 3 H. & C. 427 [1849].
511, 519; Pack v. Mayor of N. Y. City, 4
594 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ t)67
sewer for a sum to be paid on completion, the work to be done to the satis-
faction of the engineer in charge, the contractor to indemnify the city
against all loss, damages, costs, and expenses arising from the nature of the
work or from the manner of its execution, the city was held not liable for
damages from blasting, as the workmen were not servants of the city.*
In another case a railroad company contracted under seal to build a
portion of the line, and by the contract reserved to itself tlie power of dis-
missing any of the workmen of the contractors; the workmen, in construct-
ing a bridge over a public highway, negligently caused the death of a per-
son passing along the highway underneath by allowing a stone to fall upon
him. After elaborate argument it was decided in an action against the
company by the administratrix of the deceased that it was not liable, and
that the terms of a contract did not make any difference."
When a person lets out work to another to be done by him, such person
to furnish the labor, and the owner reserves no control over the work or the
workmen, the relation of contractor and contractee exists, and not that of
master and servant, and the contractee is not liable for the negligence and
improper execution of the work by the contractor.' The element essential
to the discharge of the contractee from responsibility is that he shall not
reserve control of the work. This does not mean that he may not reserve a
certain power to direct as to the things to be done, provided the methods
and instruments of doing the thing are left under the exclusive control of
the contractor. "The simple test is,^' says Mr. Wood, "who has the gen-
eral control over the work."*
667. Interpretation of Certain Contract Clauses. — The courts have held
that the relation of independent contractor .was not inconsistent with such
control and' direction as is given by a contract which provides:
that the work shall be done subject to the supervision or approval of the
engineer;^
or that the owner or employer shall have the right to inspect the work,"
or to employ an agent to superintend the work and see that the contract
is complied with;'
' Henington v. Lansingburg, 36 Hun (Ala.), 14 So. Rep. 401; accord, Filzpat-
698 [1885]; and see Tibbetts v. Knox & L. rick v Chicago, (tc, R. Co., 31 111. App.
R. Co.. 62 Me. 437. 649; Steel v. South Eastern R. Co., 16 C. B.
2 Story on Agency [7th ed.] 565; Reedie 550; contra, Hart v. Ryan, 6 N. Y. Supp.
«. Loud. & N. W. Ry. Co., 4 Wels., Hurl. 931 [1889]; and see Larson v. Met. St. R.
& Gord. 244; see Buffalo v. Hollonay, 3 Co., 110 Mo. 234; Campbell v. Luusford,
Seld. 493; Hickock v. Plattsburgh, 16 N. 83 Ala. 512; Edmundson v. Railroad Co.,
Y. 161; Kelly v. New York, 1 Kernan HI Pa. St. 316; Hughes v. Railroad Co.,
432; Storrs v. Utica, 17 N. Y. 107; Blake 39 Ohio St. 461; Eaton v. Railroad Co., 59
«. Ferris, 1 Seld. 48; Pack v. Mayor of N. Me. 520; Schular i). Railroad Co., 38 Barb.
Y'., 4 Seld. 222; Steele. The S.E. Ry. Co., 653; Callahan v. Railroad Co., 23 Iowa
16 C. B. 550; Cuthbertson v. Parsons, 12 562.
C. B 304. • Bibb's, Admr. , v. Norfolk & W. R. Co..
3 Wood's Master and Servant 593. 87 Va. 711; Smith v. Milwaukee B. & T.
^Farreii v. Sellers (La.), 37 Alb. Law Exch. (Wis.), 64 N. W. Rep 1041.
Jour. 321 [1887]. , ' Crenshaw v. UUmau (Mo.), 20 S. W.
^ Alabama Mid. Ry. Co. v. Martin Rep. 1077.
§ 667.] CONTRACT STIPULATIONS. 595
that the employer, engineer, or architect may supervise the work gen-
erally; '
that the work shall be done according to the directions and to the per-
fect satisfaction of the superintendent;''
that the engineer shall have power to direct changes in the time and
manner of conducting the work," or in the plan of doing the work; '
that the engineer may give further directions, which relate only to the
results of the work and not to the manner of its performance;*
that the work shall be ujider the supervision of an architect, who, in the
event the work being delayed, was authorized to employ another builder,
and without whose consent the builder could not sublet any of the work; '
that the work shall be performed under the supervision of the engi-
neer, at whose directions objectionable employees should be discharged,'
or simply that the engineer may require the discharge of incompetent
workmen; *
that " The work is to be executed under the supervision of the engineer,
officer in charge or his agent. * * * No material of any description will be
placed in the works without his knowledge and instructions at the time.
* * * The contractor must keep upon the works at all times responsible
agents, who shall have full authority to carry out the instructions of the
agent of the United States; * * * and all material, supervision, and labor
furnished by the contractor will be subject to the approval of the engineer
or officer in charge ;" *
that a city may suspend or annul the contract, and oblige the contractor
to discharge workmen who disobey city officers ; '°
that the company shall have the right to control the contractor or to
terminate the contract if the work be not done to the satisfaction of the
company; "
' Many cases collected, 14 Araer. & Eng. such reservations do ivot make the relation
Ency. Law 837-8; Eaton v. European <fe one of master and servant. Pierce on Rail-
N. A. R. Co., 59 Me. 520: Barry v. St. roads [1881].
Louis, 17 Mo. 121; but see N. O., M. & C. . « Robinson v. Webb, 11 Bush. 464 [1875J.
K. Co. v. Banning, 15 Wall. 649. ■» McKinley i}. C. S. T. & C. Ry. Co., 40
2 Chambers rs Ohio L. J. & T. Co., 1 Mo. App. 449 [1890] ; Eaton v. E. & N. A.
Dist. (Ohio) 329; accord, Forsyth v. Ry. Co., 59 Me. 520 [1871] ; Harris «>. Mc-
Hooper, 11 Allen (Mass.) 419; Allen «. Namara (Ala.), 12 So. Rep. 103.
Willard, 57 Pa. St. 374; Kelly r. Mayor, s Cuff x. Newark & N. Y. R. Co., ft
UN. Y. 432. Vroom 17, 35 N. J. Law 17 ; Robinson v.
3 Erie v. Caulkins, 85 Pa. St. 247; and Webb, 11 Bush. 464 ; Reedie « Lend. &
eases collected, liKmQY. &Eng. Ency. Law N. W. R. Co., 4 Exch. 244 ; Hobbitt v.
841. Loud. & N. W. R. Co.. 4 Exch. 254.
* Pack V. Mayor, 8 N. Y. 222. » Callan v. Bull (Cal.), 45Pnc. Rep. 1017.
5 Pack V. New York, 8 N. Y. 222; Kelly " Under direction of architect" has been
V. New York, 11 N. Y. 432; Gourdier v. held a power to direct, given to architect
Corniack, 2 E D. Smith 254; Schular v. for the protection of the owner, and as ap^
Hudson R. R. Co., 38 Barb. 653; Callalian plying to the fitness of the materials and
p. B. & M R. Co , 23 Iowa 562. the manner in which the work was done.
Where the employment is under a con Slater «. Mersereau, 64 N. Y. 138 [1876].
tract for the execution of a certain job or '*' Blumb v. City of Kansas, 84 Mo 112.
work, and the choice and direction of the " Pack v. Mayor. 4 Seld. 222 ; Schular z>.
servants still remain with the contractor, H. R. R. Co., 38 Barb. 655 [1862] ; Wray
596 ENOINEEHIJ^G AND AliCIUTKCTUUAL JUlilSPBUDENCE. [§ 667.
that the company or owner shall have the right to direct how the work
should be performed, and by the specifications provided that the ground be
cleared of all perishable materials, which were to be removed or burned as
the engineer might direct ; and the company was held not liable notwith-
standing that tlie engineer, in the progress of the work, ordered an employee
of the subcontractor to set fire to and burn the rubbish from which the fire
escaped, it beiug shown that the fire escaped not from the burning simply,
but by reason of the negligent manner in which it was done;*
that the engineer shall have power to direct changes in the time and
manner of conducting the work; "
that the engineer or architect may criticise the method of erection and
the workmanship, if he has not the power to direct the methods of the con-
tractor in the erection ; "
tliat the architect may direct that certain things be done by the con-
tractor, where he has not exercised any control of the manner of doing the
work or his choice of workmen ; "
that the contractor shall be liable to the owner for all negligent acts, and
that the owner may retain from moneys due the contractor a sum sufficient
to meet all damages suffered from injuries done; *
that the work and materials may be inspected by the city officers to see
that the specifications are fulfilled; that certain kinds of work should be
done by workmen approved by the engineer; that no tunneling should be
allowed except by his permission; that if in excavation any obstruction were
met, which said engineer thought should be avoided, the work should be
measured and the excavation filled in; that the work should be prosecuted
at as many points as said engineer should from time to time determine;
that plank foundations should be laid when the engineer thought them
needed; that all work should be done according to the plan and direction of
the engineer; that certain rock should be excavated with as little blasting
as possible, under immediate supervision of the engineer; that laborers and
tools objected to by the engineer should be removed; and that the con-
tractor should be responsible for damages to neighboring property, and
at his own expense shore up, protect, and restore all improvements dis-
turbed or injured; *
that the contractor shall employ competent foremen and workmen and
experienced mechanics, and shall immediately discharge, whenever required
to do so by the engineer, any men considered by the engineer to be incompe-
.. Evnus, 80 Pa. St. 102 [1875] ; Blumb v. (Va.), 14 S. E. Rep. 176 [1892], many casw
City of Kansas, supra. cited, a long case reviewing many cases ;
1 Callahan v. B. «& M. R. R. Co., 23 Iowa Morgan v. Smith (Mass.), 35 N. E. Rep.
562 [1867] ; see also Eaton «. E. & N. A. 101.
Ry. Co., 59 Me. 520 [1871]; hut see St. * Morgan «. Smith. «wjr)m.
Johns & H. R. Co. «. Shalley (Fla.), 14 So. * Tibbetts v. Knox «fe L. R. Co., 62 Me.
R( p. 890. 437.
2 Erie«. Cftulkins. 85Pa. St. 247. « Nor walk Gaslight Co. %. Norwalk
3 Bibb's Adm'r i). Norfolk W. R. R. Co. (Conn.), 28 Atl. Rep. 32.
§ 668.]
CONTRACT STIPULATIONS.
597
tent or disorderly, or disposed to foment discontent or mischief on the
"work; '
or that the contractor shall employ and pay the laborers and do the
work subject to the approval of the company's engineer; increase the force
of laborers whenever required by said engineer, and discharge any laborer
who might be offensive to the company ;
or that in case of failure to complete the work within the time stipulated
the company might employ laborers and complete it at his expense; that the
contractor should remove or burn up all trees, logs, and other perishable
materials along the line of the road, and be responsible for damages as be-
tween himself and the company; and that the company's assistant engineer
€hall personally direct the execution of the work.'
668. Advice in Regard to Reserving Control of Work and of Contractor.
—Without going into further detail it should be clear that certain of these
stipulations are undesirable features of a construction contract, if indeed
not perilous to the interests and success of a project. Accidents do and will
occur, and misfortunes do not always come singly, and prudent managers
«,nd owners will prefer the safe side. It is foolhardy to assume risks and
losses that can be avoided by a little foresight and precaution, and the con-
tract is the place to provide that no liability shall attach to the, employer for
the misdoings and neglect of servants over whom he has little or no control.
It must be evident that the stipulations as usually written and employed are
perilous to the interests of the company, and should be drafted with extreme
care, unless it is the express intention of the company to retain the control
of the work and to be responsible for the omissions, negligence, and blun-
<iers of the contractor and his employees, etc.*
» Cuff V. Newark & N. T. R. Co., 35 N.
J. Law 17 [1870] ; State v. Williams, 1
Vroom. 103 ; Reedie v. Railway Co., 4
Exch. 244; Hobbett v, London, etc., R.
€o..4Exch. 254.
« Rogers «. Florence R. Co. (8. Car.), 9
S. E. Rep. 1059 [1889], s. c. 40 Alb. L.
Jour. 223.
s Of the clauses given Sees. 647 to 650i tbe
fiist one Is usually to be preferred.
CHAPTER XXIII.
NONPERFORMANCE OF CONTRACT. IMPOSSIBILITY OP
PERFORMANCE.
COMPLETION PEEVENTED BY CIKCUMSTANCES BEYOND THE CONTROL OF
EITHER PARTY. CASUALTIES AND DESTRUCTION OF WORKS BEFORE COM-
PLETION. WORK MORE ARDUOUS OR ONEROUS THAN WAS EXPECTED.
669. Performance of Contract Impossible — Construction Contracts Whose
Performance is Impossible. — Contracts are impossible and their performance^
will be excused either when (1) the nature of the obligation is such that
it cannot by any means be accomplished, or (3) when some event has super-
vened which has rendered the performance of the contract either legally or
physically impossible.^ The authorities agree that a contract created ly lam
which is absolutely and palpably impossible will not be enforced, but per-
formance will be excused. A person is not required to contend with Provi-
dence or in his private capacity to contend with the public enemy.'
There is little if any direct authority for the statement that an agree-
ment impossible in itself is void. "The ground of such a dictum is prob-
ably that the nature of such an agreement shows in itself that there was-
no serious intention of contracting and therefore no real agreement."*"
When the performance of an agreement becomes impossible bylaw the agree-
ment becomes void.* Contracts contrary to law are without binding effect
and therefore void. * An agreement is not void merely because its per-
formance is physically impossible, nor does it become void because the per-
formance has become impossible in fact, without fault of either party, unless^
by the intention expressed or implied from the terms of their agreement, the
performance was conditioned on the possibility continuing.^ If the act
undertaken is notoriously physically impossible, and was known to be so at
the time the contract was entered into, it will not be a binding contract,,
' 10 Amer. & Eng. Ency. Law 176. So held when in drilling a well the aiicer
2 State V. Clark, 73 N. C. 255: Norcross broke off and became "stuck" in the v^ell.
« Clark, 53 Me. 163; Mosley v. Baker, 2 Barrett v. Austin (CmI.), 31 Pnc. Rep. a
Sneed (Tenn.) 362. [1892]; and see, Brinkerhoff v Elliott, 4^
3 Pollock on Contracts [4th ed J 352. Mo. App. 185; School Trustees i). Betinett»
* Pollock on Contracts [4th ed.J 351. 3 Dutch 515; Bube v. Johnson, 19 Wend.
^ Pollock on Contracts [4th ed.] 352; 500.
Paradine v. Jane, Aleyn 26.
* See Chap. Ill, Sees. 71-88, supra.
598
§ 669.] CO^•TRACT STIPULATIONS. 699
unless the contractor lias taken upon himself to warrant that it was possible.'
A party may, by absolute contract, bind himself to perform things which
subsequently become impossibilities, or to pay damage for their nonper-
formance, and such construction is to be put upon an unqualified undertak-
ing when the event which causes the impossibility might have been foreseen
and guarded against, or when the impossibility arises from the act or default
of the promisor; but when the event is of such a character that it cannot
reasonably be supposed to have been in contemplation of the contracting
parties, they will not be held bound by general words, which, though large
enough to include, were not used with reference to, the possibility of the
particular contingency which afterwards happens.''
A thing is not to be deemed impossible simply because it never yet has
been done." Cases arise in which a man has undertaken to do that which
turns out to be impossible, yet he may be bound by his agreement. Many
things have become possible that were supposed to be utterly impossible, and
this not only in the well-known instances of mechanical invention and the
application of scientific discovery, but in the realm of pure mathematics.
Sylvester has solved certain algebraic and geometrical problems long thought
insoluble, and Peaucellier a form of the problem of link motion. A contract
to make a flying-machine, with the warrant that it shall fly, may be a good
contract; * so too, one to draw or lift water more than 34 feet by a suction-
pump. It is submitted that the undertaking must be one that is within the
serious contemplation of a reasonable man. Whether an agreement to con-
struct a perpetual-motion machine or to fly to the moon would be recog-
nized as a binding contract may well be doubted.^ We have read lately
of contracts to make rain in the Western States, and presume that the won-
derful (?) Keely motor of Philadelphia has furnished some instances of the
impossible; but of decisions in these cases by the courts the author has no
knowledge.'
In such cases t^le question is not so much whether the thing is absolutely
impossible as it is one of intention of the parties. The thing stipulated^ for
m*ay be so absurd that the paties canirot be supposed to have contracted for
it, or if they did, that they were not possessed of ordinary intelligence and
capacity to contract. If the contractor by his own contract assumes a duty
or charge he is bound to make it good, notwithstanding any accident by
inevitable necessity, for he might have provided against such misfortunes
by his contract.'
» Addison on Contracts [8th ed.] 1196. 5;8tf« Pollock on Contmcts 350-4: Walker
« Chicago, M. k St. P. Ry. Co. r. Hoyt, v. Tucker, 70111. 527; Gilmer v. Tucker,
13 Sup. Ct. Rep 779 42 Ala, 9; Metcalf on Contracts 211.
'Duncan v. Gibson, 45 Mo. 352; The ^ See in point, Bube v. Johnson, 19
Harriman. 9 Wallace 161; Walker v. Wend. 500.
Tucker, 70 111. 527; McDonald r>. Gardiner, ' Davis v. Smi b, t5 Mo. 467; Brinker-
56 Wis. 35. hofif V Elliott, 43 Mo. App. 185; School
* Paddock V. Robinson, 63 111. 99; Havi- Dist. -». Daucby, 25 Conn. 580; J-ime.'-oni).
laud V, Halsiead, 34 N. Y. 643. McDauiel, 25 Miss. 83; Bacon «. Cobb, 45
600 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 670.
If a condition precedent is not known to be impossible when the contract
is made, and it afterwards becomes so, the other party cannot be placed in
default while even for this cause it remains unperformed/
If the subject-matter of the contract has been destroyed and the perform-
ance of the contract has been rendered impossible thereby, the contract may
in some cases be avoided.'"' *
670. Impossibility of Performance Caused by Act of Owner. f — The case
of impossibility of performance caused by an act of one of the parties to the
contract involves quite different considerations, because a party must be
responsible for the consequences of his own act. " It is a clear principle of
law that if by any act of one of the parties the performance of a contract is
rendered impossible, then the other side may, if they choose, rescind the con-
tract; ^ and it appears to be sufficient, if the contract cannot be performed in
the manner stipulated, though it can be performed in some other manner
not very different." * A promise is excused if the performance of it is ren-
dered impossible by an act of the owner. Thus, where a contract is made for
work to be completed by a fixed day under penalties of so much per day for
delay, the contractor is excused the penalties for delays caused by the default
or interference of the employer.^ \
Where the owner and his agents prevented the contractor from complet-
ing the work within the time fixed by the contract, by ordering extra work
and neglecting to supply necessary drawings in time, and his architect or
agent continued to supervise it after that time, and it was completed as soon
as the owner^s interruptions and required alterations allowed, it is no ground
for resisting .a recovery that the work was not finished by the time specified
in the contract." If the contractor is prevented from performing his con-
tract, or any part thereof, by default or refusal of the owner, the perform-
ance is to that extent excused. The contractor may recover any loss incurred
thereby, or if the breach goes to the essence of the contract [is important],
the contractor may rescind the contract and recover for what he has furnished
111. 47; Biiun v. Prather, 21 111. 217; Bar- Law 903.
rett V. Austin, supra. * Panama Tel. Co. v. India Rubber Tel.
1 Howell V. Knickerbocker L. Ins. Co., Works L. R. 10 Ch. 532; Planche v Col-
44 N Y. 276; Mizell «. Burnett, 4 Jones burn, 8 Biiig 14; Leake's Digest of Con
(N C.) 279; see 19 Am. Law Reg. (N. S.) tmcts, p. 708 [1878].
548; White v. Mann, 26 Me. 361, and^ng- * Holme v. Guppy, 3 M. & W. 387;
lish cases in Lloyd's Law of Building 47, Haugliery v. Thiberge, 24 La. Am. 442;
7iote. McAndrews v. Tippet t, 39 N. J. Law 105;
2Stnckland«. Turner, 7 Exch. 217; Clif- Thornbill v. Neats, 8 C B. (N. S.) 831;
ford® Wa'ts, L. R 5 C. P. 586, where Rus?ell i;. Bandiera, 13 C. B. (N. S.) 149;
clay to be dug gave out; Taylor v. Cald- Pollock on Contracts [4th ed.] 381; Stand-
well, 3 B. & S. 833; and Livinirston Co. v. aid Gas Lt. Co. v. Wood, 61 Fed. Rep. 74;
Graves, 32 Mo. 479. where a bridge that was Ketchum v. Zeilsdorf, 26 Wis. 514.
1o be kept in repair was destroyed by fire; * Thomas v. Fleury, 26 K Y. 26 [1862];
})iit see Brecknock Co. -». Pritchard, 6 T. R. White v. Braddock School Dist., 159 Pa.
750 St. 201.
^ Mo,ny cases, 29 Amer. & En?. Ency.
* See Sec. 676, infra. f See Sec. 326, supra. X See Sees. 321-6, and 585, supra.
§671.] CONTRACT STIPULATIONS. 601
or done.' The owner who keeps a contractor from fulfilling his part of a
contract must pay or settle the damages that the contractor suffers.' One
cannot maintain a suit against a contractor for not doing what he has put
out of tlie contractor's power to do.'
If the owner has interrupted the performance of the contract and ren-
dered it impossible, it will excuse performance on the part of the contractor,*
The owner cannot thereafter take advantage of the nonperformance by the
contractor and thereby avoid liability/ If the owner has been the cause of
nonperformance, the contractor is discharged from the liability.' If a con-
tractor has undertaken to produce the certificate of the owner's engineer
that work has been done according to the contract or to the engineer's satis-
faction before he will demand any pay, and the production of the certifi-
cate is prevented by the owner, it will excuse his failure to produce it, and
he may recover his pay without if *
671. Provision by Which Contractor Assumes Bisks and Dangers of
Destruction of Works,
Clause: "It is further declared and agreed that from the com-
mencement of the work to its completion and final acceptance by the
engineer, the structure, building, or works shall be under the con-
tractor's care and charge, who hereby agrees and undertakes to rebuild,
repair, restore, and make good all injuries, damages, re-erections, and
repairs occasioned or rendered necessary by accidental causes, or by
flood, storm, tempest, lightning, fire, earthquakes, or trespassers, or other
means, artificial or natural, to all or any portion of the works during
construction or before the final acceptance and occupation of the works
by the owner, company, or city, or its engineer; and to hold the em-
ployer harmless from any claims for injuries to persons or to structures
or from any damage to property happening from any neglect, default,
want of proper care, or misconduct on the part of the contractor, or of
any one in his employ, during the execution of the work."
This clause is frequently met in English contracts, but from what fol-
lows it will be seen that the law requires all that the first part of the clause
provides for, and the second part, making the contractor responsible for in-
juries to others and their estates, is covered in clauses given in Sees. 630-637.
The clause is recommended in all contracts which are 7iot clearly entire,
and it is an extra safeguard in any contract where partial payments are
made, or where the works are large and complicated or numerous.
» Pollock on Contracts [4th ed.] 380; Blackf. 222.
■many cases in 29 Amer. & Eng. Eucy. Law * People v. lus. Co., 91 N. Y. 174; Leo-
903 pold V. Salkey, 89 111. 412; Ohio R. R. v.
2 Wullman v. Society of C. 45 K Y. Yohe, 51 lud. 181; Walker v. Fitts, 24
485; Blood v. Eiios. 13 Vt. 625; St, Louis «. Pick 191.
McDonald, 10 Mo. 609. ^ jq Amer. & Eng. Ency. Law 183.
» Gibson v. Dimman, 1 Hill (S. C ) 289; • 10 Amer. & Eng. Eucy. Law 184.
Coal Co. V. O'Hern. 8 Md. 197; Stewart v. ■» Guidet v. Mayor. 36 Super. Ct. 557,
Keteltas, 36 N. Y. 388; McKee c. Miller, 4 562; see other cases*
* See Sees. 418-444, supra.
f302 ENQINEEBINQ AND ARCEITECTURAL JURISPRUDENCE. [§ 672.
672. Provision that Contractor shall Insure Works against Loss by Fire,
Floods, Tempest, etc.
Clause : " And the builder further agrees that he shall and will
forthwith insure and keep insured the buildings and works herein pro-
yided for during the progress of such work, and until the same shall
be completed and delivered to the owner, from loss or damage by firc^
lightning, etc., in such insurance company or companies as the said
ownor shall approve."
673. Provision that Contractor shall Insure the Works.
Clause: " The contractors are to insure the building against lessor
damage by fire, in a company to be approved, in the joint names of the
owner and contractors, for half the value of the work executed, until it
shall be covered in, and thenceforth until completion in three-fourths of
the amount of such value, and are, upon request, to produce to the
architect the policies and the receipts for the premiums for such insur-
ance. All moneys received under such policies are to be applied in or
towards the rebuilding or reparation of the work destroyed or injured.
In case of neglect to insure, the employer is to be at liberty to insure
the works and deduct the amount of the premiums from any moneys
payable to the contractors.'*
The propriety of these clauses will be appreciated from what follows, and
it will be seen that there are times when the owner should take out insur-
ance in his own name, as when he lets a job in parts, as the masonry, car-
pentry, plumbing, and painting, to different contractors.* A policy of
insurance issued to the owner will not, it seems, insure the contractor's
interests.*
An agreement to repair, it seems, is not an undertaking to insure the
existence of the structure,' but an agreement to keep in order was held to
require the contractor to rebuild when a bridge was carried away by au
extraordinary flood.' A tenant occupying a building under a lease, with an
agreement to keep in repair, has been held bound to rebuild.*
674. Complete Performance Prevented by Misfortune Beyond the Control
of Either Party — Casualty— Work Destroyed without Fault of Either Party.
— If a contractor voluntarily agree to perform work or render service in
consideration of payment on completion of the wJiole, and the full perform^
ance is prevented by accident, as by destruction of the works by fire, flood,
or tempest, and without fault of the owner, he has no claim for the part
performance before the disaster occurred.* If the contract for the erection
of a structure be entire, and there is no provision in the contract against
<iccident or inevitable necessity, and the structure is destroyed before its
^ Trustees of Academy io. Insurance Cos. * Bullock v. Dommett, 6 T. R. 65 ; and
(Wis.). 66 N. W. Rep. 1140. see Appleby ^. Myers. L. R. 2 C. P. 653.
2 Livingston Co. ■». Graves 32 Mo. 479. ^ Leake's -Digest of Contracts 68-70 ;
•Brecknock Co. v. Pritcbard, 6 T. R cases. 29 Amer. &Eiig Ency. Law 906.
r50.
* See Sec. 676, infra.
§ 674.] CONTRACT STIPULATIONS. 603
completion or acceptance by the owner, and without fault of eith . party,
the loss falls upon the contractor, and he can recover no compensation for
his labor and materials.' The obligation to build not being imposed by
law, but arising from the contractor's own voluntary agreement, its non-
performance is not excused by inevitable accident.' If the contract be
entirey or it is the express and evident intention of the parties to have the
contract fully performed before any liability should arise, then the con-
tractor cannot recover for a part performance of his contract.'
If the contract be for separate items of work and the price is apportioned
to each item,* or if it be at a rate per unit measure," so that the cost of each
item may be determined," then the contract is not entirey but severable. A
contract to build a structure to be paid for by installments as the work pro-
gressed was held severable.' If the contract provide for the payment of
definite sums at different periods, before the completion of the entire work,
it is severable, and suit may be brought upon it as the installments come
due.^ An undertaking to build for a fixed sum was held an entire contract,
though the^ work was to be paid for from time to time as it progressed at the
price fixed by the estimates made by the engineer. Partial payments as
work progresses do not alone make a contract severable." *
When a landscape architect and dealer in gardeners' materials sub-
mitted an estimate for labor and materials in laying out grounds, specify-
ing the different items of labor, trees, vines, grass-seed, etc., giving the
price and sum of each item, and also recommended three tons of sheep
manure for fertilizing the ground, which he could furnish at $38 per ton,
and his estimate, including the manure, was accepted, there was an indi-
visible contract for the whole work and materials, and no action could be had
separately for the manure without proof of performance of the whole con-
tract." A contract which has for its object the making of a stream navi-
' Adams v. Nichols (Mass.), 19 Pick. Morton v. Read, 2 S. & M. 685 ; Chambers
279 [1837] ; Eaton v. School District. 23 v. King, 8 Mo. 517 ; Kettle «. Harvey, 21
Wis. 374 [1868] ; School Dlst. v. Diiucliy, Vt. 301 ; Addison on Contract?, 100.
25 Conn. 530, structure destroyed by light- * Dibal c. Minott, 9 Iowa 40S.
Thing ; Lumber Co. v. Purdum, 41 Oliio St. ^ Stewart v. Weaver, 12 Ala. 538.
37? [1875] ; Bacon v. Cobb, 45 111.47; Ap- » Wright v. Petrie, 1 Smed. & M. Ch.
pleby v. Myers (Eng ), L. R 2 C. P. 651 (Miss.) 282; and see Gomer v. McPhee
[1867]; Fildew v. Besley. 42 Mich. 100; (Colo. App.). 31 Pnc. Rep. 119.
Parker v. Scott (la.), 47 N. W. Rep. 1073 ' Wright d Petrie, supra.
[1891] ; Tompkins v. Dudley, 25 N. Y. « Keeler «. Clifford, 62 111. App. 64 ; af-
272 ; Dermot v. Jones. 2 Wall. 1 ; Shines' firmed in (III. Sup.) 46 N. E. Rep. 248.
Execs, v. Heimburger, 1 Mo. App. Reptr. ^ Cox v. Western Pac. R. Co., 44 Cal.
Ill; and see Clearv v. Sohier, 120 Mass. 18 ; Quigley i). DeHnas, 82 Pa. St. 267
310 ; Partridge v. Forsytli, 29 Ala. 200 ; [1876] : and see ^choo\ Trustees®. Bennett,
Edwards ®. Derrickson, 4 Dutch. 39 ; s. c. 27 N. J. Law 513 ; Butterfield «. Byron,
5 Dutch. 468 ; Tompkins v. Dudley, 25 N. 153 Miss. 517 : Muusey v. Todella Pen Co.
Y. 274. (Sup.) 38 N. Y. Supp. 159; Parker v. Troy
2 Haynes t). Second Baptist Ch., 88 Mo. & R. R. Co. 27 Vt. 766
285 ; and see 29 Araer. & Eng. Ency. L iw '^Manda v. Sullivan County Club (Sup.),
906. 38 N. Y. Supp 55.
» Roberts v. Havelock, 3 B. & Ad. 404 ;
* See Sec. 677, infra.
604 ENQlNEElilNO AND ARCHITECTURAL JURISPRUDENCE. [§ 674.
gable, which is one undertaking for one price, was held entire, although the
undertaking did consist of several items, and the price was apportioned to
the several items for convenience, because the work was to be paid for as
the work progressed, and the contract provided that "out of the above
estimated costs of each of the respective divisions of the work the company
shall be privileged to retain fifteen per cent, until the whole is completed
in a satisfactory manner according to contract/' The court held that
notwithstanding the general rule that if a contract consist of several and
distinct items, and the price to be paid is apportioned to each item to be
performed, or is left to be implied by law, such a contract will be severable;
yet the conditions of this rule will not override the clear intention of the
parties, gathered from the whole subject-matter of the contract/
A contract to pay sums of money for $1 and in consideration of the
advantages that a railroad coming through a town would bring— a certain
sum when the road was graded, another when ironed, the road to be com-
pleted by a certain date — was held an entire contract, and no recovery was
allowed unless the road was completed.'
If the contractor has agreed to erect certain machinery on the owner's
premises, the price to be paid on the completion of the whole, and in the
course of the work the machinery and premises were destroyed by an acci-
dental fire, he has no claim for the portions of the work which were done before
the fire.' The court said : '* The contractor having undertaken to do an entire
work for a specific sum, can recover nothing unless the work be done, or it can
be shown that it was the owner's fault that the work was incomplete, or that
there is something to justify the conclusion that the parties have entered
into a subsequent agreement." *
If the pccident or casualty can be attributed to the negligence or want
of reasonable care, skill, and expense of the owner, it seems he is liable for
work done prior to the destruction of the works. It was so held when a
retaining wall was undermined by heavy rains and gave way, precipitating
a land slide which destroyed the works. The owner was held to be required
to provide a reasonably safe place for the erection of the structure, and
that the contract implied an undertaking on the owner's par*: that the
site chosen was free from danger.^ In another case, where a building fell
^Quigley v. De Haas, 82 Pa. St. 267 see Gilbert Mfg. Co. -». Butler (Mass.), 15
[1876]; but see Crawford v. McKinney N. E. Rep. 76 [1888], where recovery was
(Pa.), 80 Atl. Rep. 1047. allowed. The fact that the materijil, used
* (5 ray 15. Hinton (Neb.V 7 Fed. Rep. 81 have become the property of the owner does
[1881]; see also Norriugton •». Wright, 115 uot alter the case, if he has not accepted
U S. 188; Stepheuson v. Cady, 117 Mass. the structure as com pi (Med under the terms
6; Cohen v. Piatt, 69 N. Y. 348; Rugg v. cf the conlract. Appleby v. Myers, L. R.
Moore, 110 Pa. 236. 2 C. P. 651 [18671.
2 Appleby «. Mvers, L. R. 2 C. P. 651 ; ^ Sinnott v. Mullin.82 Pa. Si. 833 [1876];
Hughes V. Lenny, 5 M. & W. 183. Whitfield v. Zellnor. 2 Cush. (Miss.j 663,
"* Accord, Siegel v. Eaton & Prince Co. work a nuisance and enjoined.
(111. Sup.), 46 N. E. Hep. 449 [1897]; but
§ e7j.J CONTRACT STIPULATIONS. 605
before it was completed by reason of latent defects of the soil, it was held
that tlie loss fell upon the contractor/ *
Buildings in process of erection upon the land of the owner, under an
entire contract to pay upon completion, which are destroyed by fire, or by
storms, or by floods come within the same rule. A printer engaged to print a
work, which is destroyed by fire before delivery, cannot recover the price.' A
person who covenanted to build a bridge and keep it in repair for a certain
time, was held bound to rebuild the bridge, although it was broken down
by an extraordinary flood," and a bond conditioned for the building of a
bridge on a certain site and to maintain it for seven years was held valid,
and the obligee liable for damages for a breach of the condition, although
the maintenance of a bridge on the site was found to be impossible." An
insurance company who undertook to reinstate tlie insured premises which
had been damaged by fire, were held not to be excused from their contract
by reason of the public authorities having subsequently taken down the
premises as dangerous, although on account of defects not caused by the
fire/ An agreement to build a bridge according to specifications drawn up
by the engineer of the employer, and which were found to be impracticable,
was held to have been made on both sides upon the assumed practicability
of the specifications, and that the contractor could not charge the employer
with an implied warranty that the plans were practicable."
675. Destruction of Works Does Not Excuse Failure to Complete by a
Specified Time. — If the contractor Jias undertaken to complete the structure
on or before a certain date and for a price named, he is bound to do so, and
the destruction of the building by fire or storm without fault of the owner
will be no excuse at law for his failure to complete by the date named.'
If delay is caused by owner, it may change the rule,® but the mere ordering
of extra work will not absolve a builder from consequences of a delay in
completing the work in accordance with the terms of his contract." If the
owner is not in default, no additional compensation for loss by contractor
in consequence of the destruction of his works can be claimed; he -can de-
mand payment for his work when he has completed his contract, and then
only the contract price.^° Nor can the" contractor recover a sum retained
» lugle V. Jones. 3 Wall. (U. S.) 1; Stees « Brown v. Royal Ins. Co , 1 E. & E.
c. Leonard. 20 Miuu. 494; Trustee ??. Ben- 853,28 L. J. Q. B. 275, Earl, J., dis-
nett, 27 N. J. Law 513 ; Tompkins v. senling.
Dudley, 25 N. Y. 272 : and see Gibbons v. « Thorn v. City of London, L. R. 1 Ap.
United States, 109 U. 8. 200, as to ruins and Cas. 112.
their removal. ' Many cases in 10 Amer & Ens:. Eiicv.
2 Adlard v. Booth, 7C. &P. 108 ; Gillett Law 179; Adams v. Nicholas, 19 Pick. 275
i>. Mawman, 1 Taunt 140. [1837].
3 Brecknock Navif^ation Co. r.Prit chard, ^ Semhle, GWhQYi & B. Mfg. Co. v. Btit-
6 T. R. 750; hut see Bietry v. New Orleans, ler (Mass.), 15 N. E. Rep. 76 [1888].
22 La. Ann. 149 » Harrison v Trickett, 57 111. App. 515.
"Eniiigton V. Aynesley, 2 Bro. C. C. ^o Parker v. Scott (la.), 47 N. W. Rep.
341 ; Walker v. London & N. W. R. Co. 107d [18911.
36 L. T. Rep. 53 [1876].
* See Sees. 237-345, supra, and 678, infra.
606 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 675.
by the owner as security for the faithful performance and completion of'the
work, though nearly completed when destroyed and without the contractor's
fault/
Money advanced upon the contract, which was due only upon its com-
plete performance, may be recovered back from the contractor,' and in ad-
dition thereto damages for his failure to complete it.' When a building
has been destroyed under the conditions recited, and it has been rebuilt,
neither the land nor the new building are subject to claims of contractor
for work done or materials furnished for the building destroyed, none of
the materials of the old structure having been used in the reconstruction.*
If the owner has accepted the structure or asserted his ownership and
control by acts which amount to a waiver of the right to a complete per-
formance, the contractor is relieved from liability in case of destruction, and
may recover for what he has done and the materials furnished.* The
taking out of a policy of insurance on the structure and receiving money
thereon after the loss, has been held sufficient evidence of acceptance or con-
trol to entitle the contractor to recover,' as has occupation and use of a
building by a tenant,^ but mere occupation does not necessarily imply an
acceptance.® Taking possession of a building and accepting work, does not,
it seems, waive the owner's right to damages sustained because of delay in
completing the contract.'
The rule is different when woi-k and materials have been applied to a
chattel which the employer can keep or return, and which the contractor
can demand shall be paid for or returned. When an artist prepares a
statue or a picture of a particular person to order, or a mechanic makes a
specific article in his line to order, and after a particular measure, pattern,
or style, or for a particular use or purpose; when he has fully performed his
part of the contract and tendered or offered to deliver the article thus
manufactured according to contract, and the vendee refuses to receive and
pay for the same, he may recovet* as damages in an action for breach of con-
tract the full contract price of the manufactured article." In general, where
the contract is to supply a completed chattel to order, no claim can be made
for any work done short of completion ; as in the case of a coat to be made
by a tailor who dies before completion." If a workman has undertaken to
1 CntcHff «. McAnnally (Aia.), 7 So. Ralph (Ind. Apn.), 42 N. Y. Rep. 644.
Rep. 331 [1890]. ^ Gnlyon v. Ketchon, 85 Tenn. 55; Fil-
2 Bulterfield v. Byron, 153 Mass. 517; dew v.Besley, 42 Mich. 100; Lawing v.
Trustees i). Bennett, 27 N, J. Law 513; Riutles. 97 N. C. 350; semble, Eaton i).
Nollmaii D. Evensoii (N. D.), 65 N. W. School Dist.. 23 Wis. 374 [1868].
Rep. 686; and see Oakland Retreat v. Rath- « Cook v, McCabe, 53 Wis. 250.
bone, 26 N. W. Rep. 742. ' Lord v, Wheeler. 1 Gray 282 [1854].
' Thompkius «. Dudley, 25 N. Y. 272 » Bozarth t». Dudley (K J.), 27 Alb. L.
[1864]; other cases 29 Amer. & Eng. Ency. J. 76 [1882], many caaes cited.
Law 907. « Felt v. ^mith, 62 III. App. 637.
4 Shines' Exec'r v. Heimbur^er, 1 Mo. ^^ Gordon v. Nonis, 49 N. H. 376 [1870].
App. Rep. Ill; and see Rothwell «. Dean. ^' Werner n. Humphreys, 2 M. & G. 853;
1 Mo. Rep. 309; hut see Smith ij. Newbaur Lee v. Griffin, 1 B. «& S. 272.
(Ind.), 42 N. S. Rep. 40, and see Bratton v.
f 676.] CONTRACT STIPULATIONS. 607
«
repair certain defective articles and make them complete for a stated sum,
^nd has done some work upon them, but failed to make them complete, he
is not entitled to make any claim for the work done/ If the thing made is
to be called for by the employer, and if it be completed and accepted, he is
liable for it, though it burn up before he calls for it, without fault of the
scontractor."
676. Destruction of Property when Alterations, Improvements, or
Hepairs are being Made, or the Contractor has Undertaken a Part only of
the Work. — Oases in which the contractor is to do something to property of
the owner, such as decorations, improvemets, repairs, etc., are frequently de-
cided by putting upon the owner the responsibility of preserving or keeping
his property where it can be wrought, improved, or repaired. This is some-
times called the New York rule, and is generally applied to such cases as
contracts to do painting, plumbing, decorating, etc. It has been held not
to apply when a contract including repairs and alterations and new work
was entire, and payments were to be made in installments. An installment
not entirely earned was held not recoverable.' It does not apply, it seems,
when a man has ordered a portrait of himself painted and dies before it is
<jompleted. The artist probably could not recover from the man's executors
for the material and work performed, the contract being for a completed
portrait.* Yet under a contract to paint a picture on the wall of a house
or to carve a panel, the destruction of the house would not preclude the
•contractor from recovery for what he had done.
Th.ere are cases that distinguish a contract for a completed job and
payment on completion from one in which there is no such stipulation. An
«arly (1867) English case distinctly rejected the idea that there was an
implied warranty on the part of the owner to keep his premises in a fit state
to receive the work or improvements which the contractor undertook to
install or perform.' In this case the contract required the furnishing of
certain machinery and its erection upon certain premises, and the premises
^nd partly co^npleted work were destroyed by fire. It was held that there
ivas no absolute promise or implied warranty on the part of the owner to
keep the premises fit to receive the machinery. This was hardly a simple case
of repair to an existing structure, but a contract for a new structure to be paid
ior 0.1 completion, aivi was to be kept in repair for two years thereafter.'
A few cases in this country follow the English case just cited.' The
I)etter authority is decidedly in favor of the contractor's recovery, as already
■set forth.'
» Sinclair v Bowles, 9 B. & C. 92. « But see Gilbert & Barker Mfg. Co. v.
2 Cent. L=th. Co. v. Moore (Wis.), 43 N. Butler (Mass.), 15 N. E. Rep. 76 [1888].
y^. Rep 1124. ' Brumby v Smith. 3 Ala. 123; and see
3 Clark «. Collier (Cal.), 34 Pac. Rep. Fildew «. Besley. 42 Midi. 100: Jm^ seecow-
677. . tra. Cook v. McCabe. 53 Wis. 250; and
4 Pollock on Contracts (4th ed.) 375. Hollis v. Chapman, 36 Tex. 1.
* Appleby v. Meyers, L. R. 2 C. P. 651 « ^\\,\o ^. Binsse, 1 Keyes (K Y.) 476, 3
(18671. Abb. Pr. 375 ; Menetone v. Athawes, 3 Burr.
608 EKQINEERJNO AND ARCEITECTURAL JURISPRUDENCE. [§ 676^
If the contract be to do a thing which in itself is possible, the contractor
will be liable for its breach, notwithstanding it was beyond his power to per-
form it; but where, from the nature of the contract, it is apparent the par--
ties contracted qn the basis of the continued existence of a given person or
thing, a condition is implied that if the performance becomes impossible
from the perishing of the person or thing, that shall excuse the perform-
ance. Therefore a contractor who undertook to work a coal mine for a cer-
tain length of time in a good and workmanlike manner is liable for a breach
of his covenant, notwithstanding it was beyond his power to perform it;:
but if the coal mines become exhausted, that will excuse him from any fur-
ther performance.' If the subject-matter be destroyed before the time for
the performance of the agreement, the parties are discharged from the con-
tract, as in the case of a lease of a music-hall which was destroyed." If tha
peiiformance depends upon the existence of a specific person or thing, and
that person or thing is accidentally destroyed, as by an act of God, and with-
out fault of either party, the parties are excused from further performance.*
If by the contract a builder is to furnish materials and perform labor in
altering aiid repairing a structure already erected according to specifications,
agreed on, there being no agreement as to when payment should be made,
and by neither party's fault the structure itself is destroyed by fire before^
the alterations are completed, the owner must pay the builder full compen-
sation for the work done and materials furnished before the fire; and
whether constructing or repairing the building of another, it has been held
not negligence on the part of the builder to fail to insure it against fire.*
A contract to cut, cure, and stack hay on a ranch at a price per ton.
which does not certify what number of tons are to be cut, nor any given
number of acres to be mowed, and under which neither the work to be done
nor the amount to be paid is in gross, is a separable, not an entire contract;
and where the hay is burned the loss falls on the owner, and the contractor,
being innocent, can recover for his labor notwithstanding.^
The same rule holds for work which forms only a part of .a r\QVf build-
ing, as the carpenter-work or mason-work or painting." Thus where labor-
is performed and materials furnished under a contract to do the carpenter's,
work only of a building, the risk of destruction by fire is on the owner, and
a decree giving the carpenter a lien on the lot for the sum due him for
work and material will not be disturbed.' The carpenter cannot, however,
1592; Clark «. Busse, 82 111. 515; Lord v. » Pollock on Contracts (4th ed.) 367r
Wheeler, 67 Mass. (1 Gray), 282; Schwartz cases collected, 10 Amer. & Eug. Ency. Law
tJ. Saunders, 46 111. 18; Rawson v. Clark, 181.
70 111. 656; Haynest). Baptist Ch., 88 Mo. * Weis v. Devlin 67 Tex. 507 [18871: see
285; Weis «. Devlin (Tex.), 3 S. W. Rep. also Lord v. Wheeler, 1 Gray 282 [18541.
12Q, and cases cited supra. ^ Yiiudivax v. Williams (Colo.), 12 Pac.
1 Walker, et al., v. Tucker, et al , 70 111. Rep. 486 [1887].
627 [1873]; see also Pollock on Contracts « 10 Amer. & Eng. Ency. Law 180 andi
(4th ed.) 351. Vol. 29 Id. 907.
2 Taylor v. Caldwell, 32 L. J Q. B. 164 ' Sontag v. Brennan, 75 111. 279 [1874];
(1863]; 8. c, 3 Best & Smith 826. Dexter iJ.^Norton, 47 N. Y. 62; Wilson «^
§ 676.] CONTRACT \8TIPULATI0N8. 609
recover for the value of materials which he had procured for use in the
building but which he had not used at the time of the fire.* *
When the contract was to do a part of the work of a stiucture or to fur-
nish a part of the materials and the remainder was to be provided by the
owner or some other contractor, and the structure was destroyed, the con-
tractor was allowed to recover, even though the price was an aggregate sum
and no payments were to be made until house was completed."
The law was laid down by Justice Kyowlton in a Massachusetts case' in
the following words : " It is well established law that where one contracts
to furnish labor and materials and build a house or other structure on the
land of another, that he will not ordinarily be excused from performance
by the destruction of the building without his fault, before the time fixed
for completion.* It is equally well settled that where work is to be done
Tinder a contract on a building or chattel which is not wholly the property
of the contractor, or for which he is not solely accountable, as, for example,
where repairs are to be made on the property of another, the agreement on
both sides is upon the implied condition that the building or cliattel shall
continue in existence, and the destruction of it, without the fault of either
party, will excuse performance of the contract and leave no right of recovery
of damages in favor of either party.* The implied condition is a part of
the contract as if it were written into it, and by its terms the contract is
not to be performed if the subject-matter is destroyed without the fault of
either party before the time for completion has arrived. From the very
nature of the agreements as applied to the subject-matter, it is manifest
that while nothing is expressly said about it, that the parties contem-
plated the continued existence of the subject-matter to which the contract
applies.
**The fundamental question then is, what is the true interpretation of
the contract ? Was the house while in the process of construction to be in
the control and at the sole risk of the contractor, or was the owner to have
a like interest in a part of it? Was the builder's undertaking to go on and
huild and deliver such a house as the contract called for, even if he should
be obliged repeatedly to build anew on account of the destruction again
and again of a partly completed building by inevitable accident, or did his
contract relate to one building only? A contract to contribute certain labor
and materials toward the erection of a house on the land of the owner, for
Knott, 3 Humph. (Tenn.), 473; Clark v. the owner had taken out insurance on the
Franklin, 7 Leigh (Va) 1 ; Hollis ?J. Cliap- structure: hut see Tilden v. Besley. 42
man, 36 Tex. 1: Weis v. Devlin, 67 Tex. Mich. 100; and compare with GwvYQiiy v.
507; Ganety v. Brazell. 34 Iowa 100; and Brazell, 34 Iowa 100.
see Taylor v. Caldwell. 3 B. & S. 826; ^ Bntterfield v. Byron (Mass.), 27 N. E.
Meneioue v. Athawes, 3 Burr 1592. Rep. 667 [1891].
* Hay< s V Gross (Sup), 40 N. Y. Supp. * Numerous cases cited.
1098: Eichelherger v. Miller, 20 Md. 332 ^ Gases cited; and see Niblo v. Buisse (N^
« Cook c. McCabe, 53 Wis. 250 [1881], Y. App.), 3 Abbott 375.
*8<ie Sues, 272, 27o, supra.
-610 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 676.
which the owner was to do and furnish the grading, excavating, stonework,
brickwork, painting, and plumbing, is not a contract to erect and furnish
^complete a house, but a contract to finish a house on the owner^s land
which had been constructed from materials and by labor furnished in part
by the contractor and in part by the owner. The contractor is no more re-
sponsible that the house should continue in existence than was the owner.
The contract was like a contract to make repairs on the house of another.
The contractor's undertaking and duty to go on and finish the work was
upon an implied condition that the house, the product of their joint con-
tributions, should remain in existence. The destruction of the house dis-
charges the contractor from his contract.
"As to what are the rights of the parties the law of England and that
of the United States are at variance. The general rule in the United
States is that the contractor may recover for what he has done or furnishes.*
Thus a plasterer who was to do work at a price per yard was allowed to re-
cover for the work he had done before the building was burned,' The con-
tractor has been allowed to recover pro rata under his contract, i.e,, on an
implied assumpsit at the contract rate.' He has been allowed to recover a
proportional part of the contract price."*
Under a contract to put certain fixtures into a church for a gross sum to
be paid on completion and acceptance, it was held that the contractor might
recover on a quantum meruit for the work he had done, the church having
been destroyed by fire without fault of either party. ^ The fact that such
work is to be paid for upon the estimate of an architect does not seem to
alter the case. For when a party sought to recover the price of iron manu-
factured for a building which he was to put up and be paid upon the
■estimate of an architect, and the building was destroyed by fire before the
ironwork could be put up, it was held that the case contemplated for the
architect's certificate never arose, and that the contractor could recover with-
out it according to the contract price." So under a contract to varnish
clock-cases at specified prices per case, the work being done in owner's fac-
tory, payment being made on regular pay-days for work completed, which
had been examined and pronounced satisfactory by defendant's agent, the
factory being destroyed by fire and a large number of cases being burned
iipon which the plaintiif had performed work, some having been completed
but not inspected, it was held that the defendant was liable for the work
done, and plaintiff was entiled to recover the contract price for .the com-
pleted work, and upon a quantum meruit for the unfinished, and this
^ Several canes cited. Franklin, 7 Leigh 1; Schwartz v. Saunders,
« Cleary v. Sohier, 120 Mass. 210: see also 48 111. 18; Rawson v. Clark, 70 III. 656.
Lord V. Wheeler, 1 Gray 282 ; Wells v, * Haynes u. Second Baptist Church, 88
Cahian. 107 Mass. 514, 517. Mo. 285 [1885].
» Cook V. McCabe, 53 Wis. 250. « Rawson v. Clark, 70 111. 656; Clark c.
* Hollis v. Chapman, 36 Tex. 1; Clark v. Basse, etc., 82 111. 515.
§ 677.] CONTRACl STIPULATIONS. 611
whether the relation of master and servant existed between the parties or
plaintiff was a contractor 'to do the work.'
677. Work Destroyed which was to he Paid for as It Progressed. — When
by the terms of a contract payments are to be made, as the work progresses^
in weekly or monthly installments, or upon the certificate of the engineer^
and the structure is destroyed before all the payments are due, the install-
ments not due according to the terms of the contract cannot be recovered,*
though the amount already due under the terms of the contract may be recov-
ered.^ If the contract be severable, as when a portion of the pay is to be made
when a certain portion of the work is completed, then it is payable when
that part is done." The same was held when a part had been accepted,
though the contract was entire.^ When the last installment was due on
completion of the work it was held not recoverable when the house was.
. destroyed before it received a second coat of paint, all the doors were hung,
the fastening put on the doors and windows, or the building was delivered
to the owner."
A contractor agreed to build a house subject to inspection and ap-
proval of the engineer, payments to be made in installments on or before
a specified day, or as soon thereafter as the specified stages of work waa
completed, and seven installment had been paid, the engineer approving:
of the work, and the eighth installment was to be paid when the exterior
was finished and one-half of the interior woodwork finished, the cooking-
range set, and the plumbing done. All but setting the cooking-range was
done, but the engineer had not approved when the building was burned.
It was held that the contract was entire, and that the contractor was not
entitled to the eighth installment.'
If the contract be to pay for work or services from time to time as it is
performed, the claim for the part performed remains valid, although:
further performance may be prevented by accident and the part performodi
become useless; as where a shipwright was employed at continuous work
upon the repairs of a ship, which was accidentally destroyed by fire before-
the repairs were completed, he was held entitled to charge for his work and
materials rendered up to that time.* Likewise if payments are to be made
according to the work and materials furnished on measurement, and the
» Whelan v. Ansonia Clock Co., 97 N.Y. Rep. 686.
293 [1884]. « Clark v. Collier (Cal.), 34 Pac. Rep.
3 3 Amer. & Eng. Ency. Law 917; Clark 677.
«. Collier (Cal.), 34 Pnc. Rep. 677. ^ Newman Lumb. Co. v. Purdum, 41
3 Siegel V. Eaton & Prince Co., 60 111. Ohio St. 373; 3 Amer. & Eng. Ency. Law
App. 639. 917; see aUo Simonds v. Pearce, 31 Fed.
^ Mor<ian id. Ward, Wright 474. Rep. 137; Richardson ^. Shaw. 1 Mo. App.
^Robinson r. Snyder, 25 Pa. St. 203; 234; and Miller «. Hubbard, 4 Cranch C.
hut see School Trustees v. Bennett, 27 N. C. 451; and see Eichelberger «. Miller, 20'
J. Law 513; and Butterfield v. Byron, 153 Md 332.
Mass. 517, where the owner recovered ^ Menetone v. Athawes (Eng.), 3 Burr,
back the partial payments he had made; 1592; Biieder «. Carnie, 44 N. J. Law 208;
NoUman v. Evenson (N. D.), 65 N. W. Leake's Digest of Contracts 68-70.
612 ENOINEERINQ AND ARCHITECTUBAL JURISPRUDENCE. [§ 678.
^orks are destroyed before completion, the loss falls upon the owner, and
the contractor may recover for what he has supplied/
In a case where the contractor was to be paid a certain percentage on
fthe value of the work as it progressed, on the certificate of tlie architect,
^ut the last payment was not to be made until all the claims for extras had
been agreed upon and the contractor had proceeded with the building and
'did considerable amount of extra work, but before the completion of the
tbuilding it was destroyed by fire, it was held in an action on the contract
that the contractor was entitled to recover the percentage of value of the
work done, though the building never was completed.^ If certain work
^as to be performed at a certain rate -and part of the work has been per«
i'ormed, and the performance of the residue has been prevented without the
fault of either party, the contractor is entitled to payment in proportion, at
the rate agreed upon for the whole. When installments are due and have
been paid as work progresses, it seems they cannot be recovered back, the
full performance of the work having become impossible. It was so held
when boilers and engines had been made for a ship, which ship was
'4iestroyed before the machinery had been installed/
678. Work Becoming More Difficult or Arduous. — It is well settled that
If the performance of a contract is not impossible in its own nature, but the
impossibility is due to particular circumstances, whether existing at the
time the contract was made or arising from subsequent events, it is no
excuse for the failure to perform an unconditional contract.* The fact that
work has become more difficult, onerous, or expensive, not by the fault of
the owner or his agents, does not entitle the contractor to extra pay in con-
sequence of the extra work.^*
Although accidental or natural causes may make the work much more diffi-
•cult and expensive than was expected, the contractor is bound to do all that
is necessary to make it reasonably effective for the purpose it was intended
do accomplish," and this is so even if every item is not specifically mentioned
in the contract.' If a substantial performance can be carried out it will be
xequired, though a complete performance in the exact terms be imppssible.*
1 Wilson «. Knott, 3 Humph. (Tenn.) Conn. 9; Hay t). Holt, lONorris (Pa.) 88
473; Clark v. Fmnldin, 7 Leigh (Va.) 1; ^ Gifford t). Hoffman, 3 Pbila. 127; Nor-
^ind see Perkins v. Locke (Tex.), 27 S. W. ton v. Fancher (Sup.), 86 N. Y. Supp.
Kep. 783; Schwartz t?. Saunders, 46 111. 18; 1032; Classen v. Elmendorf (Tex.). 37 S.
•Ctarretty v Brazell, 34 Iowa 100. W. Rep. 245; Cannon v. Wildman, 28
2 Flood v. Morrisey. 4 Pugsley & B. Conn. 472; Boyle v. Agawam C. Co., 22
<N. B ) [1880]: semhle Hargrave v. Conroy, Pick. (Mass.) 381; Ambler v. Phillips, 132
19 N. J. Eq. 281 [1868]; a7id seeC\iic\\ft v. Pa. St. 167; Rigby v. Bristol. 29 L. J.
3IcAnnally, 88 Ala. 507. Exch. 359: Wiseman v. Thompson (Iowa),
3 Anglo-Egyptian Nav. Co. v. Rennie, 63 N. W. Rep. 346.
jL R. 10 C. P. 271: but see School Trustees « I. B. & W. Ry. Co. «. Adamson, 114
^. Bennett, 27 N. J. Law 513; and Butter- Ind. 282 [1887].
«old v. Bryon, 153 Mass. 517. ' Currier v. B. & M. R. Co , 34 K H.
4 Flemniing v. Manne Ins. Co., 4 Whar- 498 [1847].
ton 59; Baker «. Manfrs. Ins. Co., 12 Gray « Williams d. Vanderbilt, 28 N. Y. 217;
«03; Blodgett v. Amer. Nat. Bank, 49
* See Sees. 582-590, avpra.
^ 678.] CONTRACT STIPULATIONS. 61S
The fact that the contractor has adopted the usual and most advantage-
ous means of performance, which both parties contemplated, and has failed,
i^ill not be a defense for noncompletion of the contract, unless it is so pro-
Tided in the contract.' *-
A statutory enactment which makes the performance of a contract more
burdensome or expensive will not excuse the contractor from performance,*
but if the statute makes the performance unlawful it will be a good excuse.*
Sickness creates no impossibility when the act is not one requiring per-
gonal service, for it may be performed by proxy. If the contractor be dead,
his personal representatives must perform or respond in dam.ages.* The
visitation and prevalence of a contagious and fatal disease, which renders it
Imprudent to work and impossible to procure suitable workmen, has been
held to excuse performance of a personal contract.^ If part of the work
has been executed before the disease came the contractor may, it seems,
recover for it on a quantum meruit.^
If a manufacturer has contracted to furnish certain materials and sup-
plies to the contractor, he cannot excuse non-delivery of the materials by
pleading that his mill burned down,' or that the mills could not be operated
because of the drought and lack of water," or that the materials could not be
-delivered because the river was frozen and navigation closed, or that they
could not be shipped on account of the weather, danger from freezing, damp-
ness, etc' A contractor's inability, by reason of accident, want of means or
insolvency, lack of skill of himself or any of his workmen or subcon-
tractors,'" does not excuse a full performance of his contract.''
It is not enough that the work done " is a fair average job for thai, class
of building, '^ when he has undertaken to furnish a certain quality of
material and work." f
The fact that weather was unsuitable for the progress of the work will
not excuse its completion within the time specified," or that the contract
required it to be done during the winter months. The severity of the
IVhite V. Manne, 26 Me. 361; Chase v. Bar- ^ Dewey v. Alpena School Dist., 43 Mich.
xeit. 4Paigel48. 480.
1 Eng^ter v. West, 35 La. Ann. 119; • Lakeman v. Pollard, 43 Me. 463;
Hand v. Baynes, 4 Wharton 204; Har- Sickles v. United States, 1 Ct. of CI. 214.
mouy «. Binjrham, 1 Dur. 210, 12 N" Y. ' Booth v. Spuyten Duyvil R. M. Co., 6ft
99; and see Owens v. Butler Co., 40 Iowa N. Y. 487.
190, whether a failure to complete work ^ Eddy v. Clement, 38 Vt. 486.
according to certiiin plans and specifica- ' 10 Amer. & Eng Ency. Law 179.
tions furnished by the owner, and made a ^° Sherman v. Bates (Neb.), 17 The Re-
part of the contract, would be a defense porter 86 [1883] ; and see McGonigle «.
to an action by the contractor. Klein (Colo.), 40 Pac. Rep. 465.
"^ David V. Ryan, 47 Iowa 642; Baker v. " Jones v. Anderson (Ala.), 20 So. Rep.
Johnson 43 N. Y. 126. 911 [1887].
» 10 Amer. & Eng. Ency. Law 182 ^'^ Golden Gate L Co. v. Sahrbacher
* Siler V. Gray, 86 N. C. 566; Hawkins (Cal.), 38 Pac. Rep. 635.
D. Ball, 18 B. Monr. 816; Smith v. Coal '" Margon v. Carter, 4 Car. & P. 296.
Co., 83 111. 498.
* See Sees. 236-242, Sufficiency of Plans, supra.
t See Substantial Performance, Sees. 701-702, infra.
614 ENOINEERINO AND ARGEITECTUBAL JURISPRUDENCE. [§ 679^
weather is alone insufficient as an excuse for failure to perform, if the work
could have been carried on by the exercise of extra means or effort/ * Th&
fact that an unbridged river between defendant's residence and the place of
performance was swollen by recent rains, and impassable at the time set for
the performance of the contract, will not excuse the performance of the-
contractor's obligation when it is not shown that such a condition of the
river was unusual at that season of the year and could not have been antici-
pated by ordinary prudence." The same was held when materials were to
be delivered at a certain place which became inaccessible; it was held thai
the contractor must deliver at a new place established conveniently near to
the original place of delivery.'
The defective condition of the soil under a house, in consequence of
which the walls sank and cracked and the house had to be taken down
and rebuilt on artificial foundations, Avill not excuse the performance of a
contract to build, complete, and deliver over the house by a certain day
named, nor entitle tiie builder to extra compensation. He must either
rebuild or answer in damages for his failure to complete his contract.* A
covenant to build a bridge and keep it in repair for a certain time requires
the builder to rebuild the bridge, although it was broken down by an
extraordinary flood. ^ So when an arch fell, it was held there had been no
performance and therefore no recovery was allowed.'
679. Excavations More Difficult than was Supposed when Contract was
Taken. — A very common claim for extra compensation is that for the extra
labor required to excavate rock and hard-pan. What has been said of work
becoming more onerous than was anticipated or estimated will apply to this
class of work. To prevent hardship and litigation, a contract for excava-
tions should always specify a price for solid rock, loose rock, hard-pan, clay,
quicksand, common earth, and other stuff the excavation and handling of
which entail greater or less cost, and each should be described clearly.
If a contract requires the contractor "to furnish at his own cost and
expense all necessary labor and materials, and excavate and build a certain
dcwer,'' and according to specifications which provided that "the contractor
shall make all necessary excavations for the sewer in such directions, and of
such width and depth as shall be necessary/' no extra compensation can be
recovered for excavating rock, though neither party contemplated that rock
would be met.' If the contractor had protested when he discovered the
^ Reicbenbach v. Sage (Wasb.), 43 Pac. Law (3 Dutcb.) 513; see alf<o Sters v.
Rep. 854. Leonard, 20 Minn. 494; but see Burke v.
2 Ryran v. Rogers (Cal.), 31 Pac. Rep. Dunbar, 128 Mass. 499.
244; but see Pengra v. Wbeeler (Or.), 34 ^ Brecknock Nav. Co. v. Pritcbard. 6 T.
Pac Rep. 354. R. 720; and see Leake's Digest of tbe Law
' RobsoQ v. Miss. R. Log. Co., 61 Fed. "f Contracts p. 696; see also Police Jury v.
Rep 893. Tnylor, 2 La Ann. 272.
4 Dermott «. Jones, 69 U. S. (2 Wall.) « Denmead v. Coburn, 15 Md. 29 [I860].
[18651, 8. c. 4 Amer. Law Res:. (N. S.) "^ McCiuiley v. City of Des Moines, 83
604; Supt. of Schools v, Bennett, 27 K J. Iowa 212 [1891]; Cannon v. Wildman, 28-
* See Sees. 326, 585, and 670, supra.
§ 679.] CONTRACT' STIPULATIONS. 61a
rock, and induced the owner to agree that each should bear the expense of
blasting the rock equally, the courts very likely would hold the settlement
a fair one, and allow him to recover.' * '
A contract to construct a section of a canal at a price per cubic yard for
excavations and embankment, payments to be made on monthly estimates
of the engineer, reserving 25 per cent., and the balance when completed,
requires the contractor to re-excavate earthworks and repair embankments
which have been filled up or washed away by floods before the works were
finished, and without extra compensation.' Under an agreement to pay as
a " compensation for such excavation, refilling and repaving," as follows:
**for the digging ^^ and refilling, seven cents per cubic yard; for repairing,
etc., four cents per square yard; evidence that in the work undertaken hard-
pan and rock were met, the excavation of which was worth ten to fourteen
times the price named, and that the price agreed upon was the lowest price
for common earth excavations, is not admissible, and the contractor can
recover only the prices agreed upon.' Under a contract to excavate "solid
rock" at a certain price, no extra charge can be made for flint rock, though
it costs four or five times as much to excavate it than limestone rock, there
being no proof that the words ^' solid rock " have any particular meaning.*
When another contract fixed the price of earth excavations and allowed
an extra compensation for rock excavations, it was held no extra pay could be
had for excavating " hard-pan." ' However, another court held it error to
exclude evidence that hard-pan was neither rock nor earth, under a contract
providing for earth excavation at one price and rock excavation at another,
and that work not classified therein shall be paid for at cost and 15 per
cent, added."
What hard-pan is and whether any was found are not questions of
science or skill, and it is not necessary that a witness should be shown to be
qualified as an expert before he can be interrogated in regard thereto.^
Hard-pan had been defined among farmers and well-diggers as "a hard,
earthy substance, composed of gravel, sand, and clay, very compact, nearly
impervious to water, and too hard to be excavated by the spade;" and by
others as a hard, compact earth, generally composed of sand, pebbles,
cemented by clay, lime, or iron, or by clay combined with other ingredients."
Conn. 472; Sherman «. New York, 1 N. * Nesbitt d. Louisville G. & C. R. Co.
Y. 316; Devlin v. New York. 4 Duer 337. (S. C). 2 Spears 697; Dbrew v. City of
1 Hellwig V. Blumenberg, 7 N. Y. Siipp. Altoona. 121 Pa. St. 401.
746, which held that the word ." excavat- « Dickinson v. Cornmrs. of Pouszhkeep-
ing" did not necessarily include "blast- sie, 2 Hun 615 [1874], and see Hellwig «.
ing." Blumenberg, 7 N. Y. Supp. 746.
2 Boyle V. The Awagam Canal Co., 22 "J Currier v. B. & M. R., 34 N. H. 498
Pick. 381 [1839]. [1857].
3 Sherman v. Mayor, 1 N. Y. 316 [1848]. « Spader v. Lawler, 17 Ohio 397: and see
4Fruin v. Crystal Ry. Co. (Mo.), 14 S. 77 Proceedings Inst, of C. E. 249 [1884].
W. Rep. 557 [1886].
* See Sees. 69, 131, and 560-563, sicpra, re the consideration of the promise in such
a case.
616 ENaiNEERING AND ARCHITECTUBAL JURI8PBUDENCE. [§ 680.
680. No Extra Compensation can be Recovered for furnishing Better
Work and Materials than the Contract Requires. — If a contractor, in exe-
cuting and completing a job under a contract for a stipulated price, use
materials of a better kind than those contracted for, or furnish a better
quality of work without notice to the owner, he cannot for that reason alone
charge more than the price named in his contract, nor can he require the
materials so wrought into the building to be returned because the owner
will not pay the extra price demanded on account of the better materials
employed.*
^ "Wilmot V. Smith, 3 0. & P. 453; Per- and see Chicago, etc., R Co. ». Thomlin-
kinson v. Fehlig, 21 Mo. App. 327 [1886]; son, 33 111. App. 388.
CHAPTER XXIV.
NONPERFORMANCE OF CONTRACT. BREACH OR RESCISSION.
BREACH OF OWiq^ER OR COMPAlvTY AKD MEASURE OF DAMAGES TO
CONTRACTOR.
681. What will Amount to a Breach of a Contract? — To answer such a
question one must be informed fully as to the facts of the case in point. A
statement of the terms of the contract and of the wrongful acts of the offend-
ing party alone will not determine the question. The period or the time when
the act was committed or when the failure or refusal to act was made known
may have an important bearing on the question, as may also the intention
and the efforts of the delinquent party. When no part of the contract has
been performed, the law demands a literal compliance with its terms. If
the owner or contractor fail or refuse to carry out his undertaking in the
beginning, or " in limine " (at the threshold), as the courts say, such an act
may be held a breach of the contract, when it would not be so held at a
}ater stage of the performance of the contract. Before any performance, the
law requires a literal performance; after part performance, the law demands
only a substantial performance. After the contractor or owner has in good
faith made preparations to carry out the contract and has entered into the
undertaking, the breach must go to the essence or substance of the contract
in order to relieve the other party from his obligation to perform his part.
This rule is based upon the ground that a benefit has been conferred upon
the party who seeks to take advantage of the breach, and it is not equitable
for him to take advantage of another's misfortune. If the owner has been
benefited by the part performance of the contract and the contractor has
failed to fulfill some of the terms and conditions of his contract, yet he
should be remunerated for the benefit he conferred on the owner if his breach
was unimportant or did not go to the essence of the contract.* If, however,
full benefit has resulted to the contractor, he cannot recover, for he has
already been compensated. Sometimes when the plaintiff has been benefited
by defendant's breach he is allowed nominal damages.'
* Linnenhohl v. Winkelmeyer, 54 Mo. So, Rep. 771.
App. 570; Kirkland u. Oates, 25 Ala. 465; ^ Excelsior Needle Co. v. Smith, 61
Prince v. Thomas, 15 Ark. 378; Light, Coun. 56.
Heat & Water Co. 'o. Jackson (Miss.), 19
617
618 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 682.
It is also held that to hold a party for damages for a breach on his part
of his undertakings, the circumstances must be such that it may reasonably
be supposed to have been contemplated by the parties, when making the
contract, that such loss would probably follow its. breach, and hence that the
party consented to become liable for it, and such circumstances if relied
upon must be pleaded and proved/
682. When Owner has Forbidden Contractor Completing or Continuing
the Work. — Where a contract is executory, one party has the power to stop
performance by the other side by an explicit direction to that effect, sub-
jecting himself to such damages as will compensate the other party for being
stopped at that stage in its execution; and the party thus forbidden to pro-
ceed cannot go on and complete the contract and recover the contract
price, his remedy being for damages for the breach." If the owner refuse
to carry out the contract before the commencement of the work, the con-
tractor cannot go ahead and erect the building, notwithstanding such re-
fusal, and recover the contract price, but must leave matters as they stand
and sue for the breach of the contract.^
If an agent of the owner, as the superintendent, by authority prevent the
contractor from continuing his work, and for a defect not occasioned by the
contractor, and completion was made a condition precedent to recovery, he
is thereby discharged from performance of the condition, and is entitled to
recover for what he has done.* The contractor need not allege that he was
ready and willing to perform when he and his workmen have been ordered
off the premises by the owner.* An express repudiation by owner dispenses
with the necessity of a tender of performance by the contractor before he
can begin his action for the breach." A contractor can sue for damages for
breach of contract by the owner if the owner refuses to allow the contractor
to do the work contracted for, even though it contains a stipulation for arbi-
tration in case of dispute as to the true value of extra work or of work
omitted. His damages will include his probable gain or prospective
profits.'
In an action to recover for work done under a contract and for breach
of the contract by defendent in preventing further performance, a report
* Liljengren F. & L. Co. v. Mead (Minn.), v. Johnson, 21 Vt. 17; Guerdon v Corbett,
'44 N. W. Rep. 306; following Frohreich v. 87 111. 272; Bannister v. Reed. 1 Oilman 92;
Gaunnon, 28 Minn. 476; and see5AmeT. & Goodman v. Pocock, 15 Q B. 576; Potts ?>.
Eng. Eucy. Law 32-33. Pt. Pleasant Ld. Co. (N. J.), 8 Atl. Rep
2 Gibbons v. Bente (Minn.), 53 K W. 109 [1887]; Justice d Elwert (Greg.), 43
Rep. 756; McGregor v. Ross, 96 Mich. 103; Pac Rep. 649.
see Heavilon v. Kramer, 31 Ind. 241; * Current v. Fulton (Ind. App ), 88 N.
Miller v. Phillips, 31 Pa. St. 218. E. Rep. 419.
3 Davis V. Bronson (N. D.), 50 N. W. « Stokes v. Mackay (N. Y. App.), 41 N.
Rep. 836; semble, Epperson v. Shelby Co., E. Rep. 496
7 Lea (Tenn.) 275; Danforth v. Walker, 37 ' Brandt v. Schuhman. 60 Mo. App. 70;
Vt. 239; Societe, etc. v. Milders, 49 L..T. Boyd v. Meiglian. 3 Centriil Rep. 689; 1
55. Amer. & Ens:. Ency. of Law 670; Jones v.
^ Heine v. Meyer, 61 N. Y. 171 [1874]; Judd, 4 N. Y. 411.
Clark V. Franklin, 7 Leigh (Va.) 1; Derby
§ 682.] CONTRACT STIPULATIONS. 619
made to plaintiff by his workmen that they had been stopped by defendent,
accompanied by proof that they had been stopped by defendent, is competent
to show the reason why plaintiff ceased further performance of the contract.*
If the contractor first break his contract, and the owner by reason thereof
fails or refuses to proceed with his part, the latter is not guilty of a breach
of his contract. It was so held when a contractor agreed to employ mem-
bers of a labor union, which agreed to supply him with workmen on de-
mand. The union having called out its men because the contractor dis-
charged one of its members, it was held the contractor was entitled to
employ non-union men, that the breach was on the part of the union.' The
liability for the non-performance of a contract is upon the one who was the
cause of the contract not being carried out.^ If the contract has been
wrongly terminated by one party, the other is entitled to recover for the
breach thereof without showing that he continued to be ready and willing
to perform liis part after such termination.* Where the contractor, before
the day of performance, declares that he will not fulfill, the other party may
take him at his word and at once bring suit for a breach of the contract.*
The fact that the work is unnecessary or useless, or that the owner cannot
determine how he will have it done, will not annul or discharge the contract
to build." The insolvency of a company and the placing of its property in
the hands of a receiver is not of itself a breach of a contract to purchase
materials so as to entitle the contractor to recover damages without placing
himself in a position to perform.' If one party has disabled himself from
performing his contract by his own act, the other party may treat it as
rescinded.^ An agreement that the time within which it shall be incum-
bent on the contractor to complete his contract shall not be less than four
years was held a covenant on the part of the company that it would allow
the contractor four years to complete it in, and that the unlawful driving
him away from the work within that time was a breach of the covenant."
If owner has refused to permit the contractor to complete the works, he
cannot show what he has expended to supervise the completion of the work
or its value for the purpose of establishing a counterclaim against the
contractor."
1 Raven d. Smith (Sup.), 33 N. Y. Supp. " Engesette v. McGilvray, 63 111. App.
972. 461.
2 Davis V. Bonn (Sup.). 37 N. Y. Supp. « Graves??. Carutbers, Meigs (Tenn.) 58,
68<S; see also World's Columbian Exposi- 65.
tioii ■». Liesegang, 57 111. App. 594; and ' Diamond State Iron Co. v. San An-
CliicMgo, etc., R. Co. v. Cocbran (Neb.), tonio. etc., Ry. Co. (Tex.). 33 S. W. Rep.
60 N. W. Rep. 894; Hyde v. Grisby, 11 La. 987: and see Girard L. I. Co. v. Cooper (C.
240: Oxnard v. Locke, 13 La. 449. C. A.). 51 Fed. Rep. 332: accord, Amsden v.
3 Lloyd's Law of Building 40. Atwood (Vt.), 35 Atl. Rep. 311.
* Bond V. Carpenter (R. I.), 8 Atl. Rep. « Robson d. Drummond, 2 B. & Ad. 303;
539 [1887]; Howell v. Gould, 2 Abb. App. Plancbe v. Coburn, 8 Bing. 14.
Dec. (N. Y.) 418; Morier v. Moran, 58 111. » Randel v. Chesapeake & Del. Canal, 1
App. 235; lui 8eeM\\Mn «.Workincr(Ill.), HMrrington (Del.) 233-322 [1833].
24 N. E. Rep. 54 [1890]; Hudson iJ.Feige, ^^ The Memphis, etc., R. Co. v, Wilcox,
68 Mich. 148. 48 Pa. St. 161 [1864]; Stone t>. Assip, 18 N.
620 ENQINEERINO AND ARCEITECTUBAL JURISPRUDENCE. [§ 683.
683. A Suspension of the Work will Not Justify Contractor in Abandon-
ing Contract Work. — If the owner suspend the work for six months and
refuse to give the contractor any assurance that the work would be resumed^
it is sufficient cause to permit the contractor to recover for what he has
done, including the per cent, that was by the contract to be retained until
the completion of the work, and this is so notwitstanding a provision that
no claim should be made for damages in case the work was suspended or
delayed. ^
The question, " What is an unreasonable delay in renewing work that has
been suspended ?" is one for a jury to determine.' A suspension of work for
six months, with no assurance that it will be resumed, has been held sufficient
to authorize the contractor to abandon the work.^
When the owner suspends work he is liable for any injury which the con-
tractor suffers in consequence thereof, as where a water company contracted
for work to be done, and afterwards, because of a rise in the river and danger
to some of its buildings, it desired to stop the work.* But when a stipulation
provides that a suspension of the work by the owner shall give the contractor
no claims for damages, he will not be entitled to any damages for a suspen-
sion made in good faith. ^
684. Suspension of Work is Not Always a Rescission of Contract. — Consent
of both parties to the omission of some of the items of a building contract
does not amount to a rescission of the entire contract; the residue remains in
full force." Generally, however, an agreement for rescission implies a total
rescission.' A mere suspension of the work by mutual consent of the parties
is not a rescission of the contract which entitles the contractor to ignore its
terms and refuse to accept the engineer's estimate of the work done prior to
suspension as provided by the contract.® The fact that the owner, upon the
statement by a contractor that his failure to prosecute the work was owing
to his inability to get mechanics, employed extra men himself does not show
a rescission of the contract by the owner nor cause for rescission by the con-
tractor.' A postal card from one party to the other party asking that nothing
be done about building certain cars, contracted to be built, until further
instructions, and setting the time within which such instructions would be
given, has been held nqt to constitute a rescission of the contract, the same
amounting only to a request to suspend the construction for the time named:
Y. Snpp. 441; and see Bonnett v. Glatfeldt, man (Miss), 11 So. Rep. 680.
8 West Rep. (111.) 637. ' Snell v. Brown. 71 111. 133.
1 Curran v. Del. & O. R. Co. (N. Y. 'Menne ??. NeumeistHv, 25 Mo. App. 300;
App.) 34 K E Rep. 201; and see Sheible ««e White «?. Soto, 82'Cal. 654; McFaddeu
«. Klein (Mich.), 50 N. W. Rep 857: and v. ODonnell, 18 Cal. 160.
Snell ^. Brown, 71111. 133; Hullei) Height- '' Thompson v. Lyons, 54 N. Y. Super.
man, 2 East. 145; Moulton v. Trask, 9 Met. Ct. 101.
577. ^Mouon Nav. Co. v. Fenlon, 4 Watts &
2 Sullivan V. N. Y. & R. C. Co. (N. Y.). S. 209.
23 N E. Rep. 830. ^McGonigle v. Klein (Colo. App.), 40
3 Curnan v. Del. & O. R Co., supra. Puc. Rep. 465.
*Vicksburg Water Supply Co. v. Gor-
§ 685.] CONTRACT STIPULATIONS. 621
and upon neglect to give the further notice in a positive form not to con-
struct within the time named, the contractor had a right to go on with the
work.* A suspension of work under a contract for a length of time pro-
hibited by its terms, when rendered excusable by act of God, is not a breach
of the contract, and the other party is not thereby justified in terminating
it.' Ordinarily if work is suspended until after the time for its completion
by order of the owner, the contractor is released from his obligation to com-
plete the work, and he may sue for the breach of the contract by the owner.*
In a case where the president of a company owned nearly all the stock, and
furnished all the money to build the road, and he and his private secretary,
who was also secretary of the company, attended to all its business, a letter
to a contractor written by the secretary on the death of the president saying
that the president's executor desired the work suspended, constitutes a sus-
pension by the company, especially when the company made no demand on
the contractor to proceed."
A provision that in case the company is delayed in acquiring title to
lands, or for other reasons, the contractor shall not be entitled to damages
therefor, but shall have an extension of time, does not apply to delay caused
by company in failing to have a survey made for the work.^ If a contractor
promptly protests against a decision of the other party in suspending work
or putting an unwarranted construction upon the contract, he saves his right
to damages.** The contractor is not bound when he receives an order sus-
pending the work to either acquiesce or throw up the contract. He may
notify the other party that he objects and holds him liable forthehinderance.*
Kescission of the contract is a right of which the contractor may avail him-
self, but he is not bound to rescind. If the builder continue the work not-
withstanding an order suspending it, and the company ultimately has the
benefit of it, it is liable for it at the contract price.*
685. Breach of Contract when there are Several Joint Parties. — One
of several joint contractors cannot rescind the contract unless the others
assent to it.'' Nor can a contract be rescinded by the husband alone when
he and his wife are united as one party.® A recent case is authority for the
statement that when the contract is with several persons to erect a building
for them, and one only of them refuses to carry out the contract, and the
contract is entire, the refusal of the one releases the contractor from liability
to the others if he should not carry out the contract ; » that the contractor
^ Gill Mfg. Co. V. Hurd, 18 Fed. Rep. Rep. 168 [1892].
673. 6Roettiuger v. Uaited States, 26 U. S.
« Asplund V. Mattson (Wash.), 46 Pac. Ct. of CI. 391 [1891].
Rep. 341. ' Brewster v. Wooster, 9 N. Y. Supp.
2 Kiigler v. Wiseman, 20 Ohio 361. 312.
4 Curnan v. Delaware & O. R. Co. (N. « Spencer v. St. Clair, 57 K H. 9.
Y. App.), 34 N. E. Rep. 201. 'Davis v. Bronson (N. B.), 50 N. W.
6 O'Connor v. Smith (Tex.), 19 S. W. Rep. 836.
* See Sees. 578-581, supra.
622 ENOINEERING AND ABGHITEGTURAL JURISPRUDENCE. [§ ^^^'
■cannot proceed with the erection, and recover therefor, because the refusal
of one owner to perform releases the contractor from liability to the other
owners/ The discharge of a builder by one of a board of school trustees,
who has been selected to superintend the work, without knowledge or con-
sent of the other trustees, will rescind the contract of employment."
686. Failure to Make Specific Payments when Due, a Breach of Contract.
— When by the terms of the contract payments are to be made by the owner
at stated periods or at specific stages of the work as it progresses, a failure to
meet the payments or to pay the estimate is such a breach of the contract on
the part of the owner as will justify the contractor in abandoning the work'
and rescinding the contract.* When payment is to be made upon comple-
tion of specific stages of the work the payment is a condition precedent to
the further prosecution of the work.* A refusal by contractor to proceed
with tiie work, until the last installment due is paid, is not a breach on his
part." The fact that the contractor has not obtained the monthly estimate
iind certificate will not excuse the owner from making stipulated monthly
p'ayments, as the estimate of the engineer is solely for the benefit of the
owner/ It seems the contractor should ask for an estimate, and demand
the payment.*
687. Provision that Failure to Make Stipulated Payments shall not be a
Just Cause for Rescission. — To prevent such a rescission by the contractor
the following clause is sometimes employed:
Clause : " Nor shall any omission or failure on the part of the owner
or company to pay the amount of such certificate or monthly payment
at the time the same shall be payable be held or deemed to vitiate,
abrogate, or avoid this contract, but in such case the contractors shall
be entitled to interest thereon at and after the day it is due, at the rate
of ten per cent. (10^) per annum for such time as such payment shall
be deferred or delayed.''
If a contract provide that work shall be estimated and paid for in install-
ments, and a certain per cent, is reserved as liquidated damages or security
for full performance of the contract, and payments have not been made as
1 Davis V. Bronson (N. D.), 50 N. W. 695; Pliillips & C. C. Co. «. Seymour, 91
Rep. 836 ; semble, Brodeck v. Farnum U. S. 646 ; Bennett v. Shauglinessy, 6
<W!ish.), 40 Pac. Rep. 189. Utah 273 [1889] ; Keeler v. Clifford (111.),
. 2 Scofield V. McGregor, 1 Thomp. & C. 46 N. E. Rep 248.
<N. Y.) 404. "Poner v Arrowhead Res. Co., 35 Pac.
2 Cuuningham v. M. S. & Ft. C. R. Co., Rep. 146 ; Palmer v. Breen, 84 Minn. 39 :
18 N. Y. Supp. 600 [1892] ; Lincoln v. Jones v. Judd, 4 K Y. 412 [18o0] : 29
Schwartz, 70 111. 134 [1873] ; Canal Co. v. Amer. & Eng. Ency. Law 912, and see
Gordon, 6 Wall 561 [1867] ; Geary v. County of Ch. v. Ovetholt, 18 111 223.
Bangs, 138 111. 77; Scheible v. Klein ^ Bpunen ^_ Shaughnessy, 6 Utah 273
(Mich.), 50 N. W. Rep. 857 ; DeLoache v. [1889].
■Smith (Ga.), 10 S. E. Rep. 486; Grand « Raabe ?? Squier (N. Y. App.), 42 K E.
Rapids R. Co. v. Van Dusen. 29 Mich 431; Rep. 516 ; Johnson v. Tyng (Sup.), 37 N.
Hunter v. Walter (N. Y. App.), 29 N. E. Y. Supp. 516.
Rep. 145; Schwartz?). Sanders. 46 111.18; 'Rusling v. Union Pipe & Const. Co.
MiWeT V. Sullivan (Tex.>, 33 S. W. Rep. (Sup.). 39 K Y. Supp. 216.
* See Si'C. 414, supra.
§ 687.] CONTRACT STIPULATIONS. 623
agreed, the contractor may recover the full amount of such installments
earned and unpaid, together with the per cent, reserved on all the work
done,' and witliout regard to what it cost the owner to complete the job,*
and regardless of what the work is worth to the owner.' This is so notwith-
standing a provision for the rate of interest which the deferred payment
should bear in case of failure to meet monthly payments,* or a provision for
a supplementary agreement to be executed which would have limited the
liability of the promisor to protecting the structure against liens.*
It seems the contractor may act upon the failure to make payments, and
treat the contract as broken the same day that the owner fails or refuses to
meet his obligations to pay.* If, however, the contractor has failed to per-
form the conditions that entitle him to payment, for which reasons the
owner refused to make the payment, such refusal does not rescind the con-
tract so as to preclude the owner from proceeding against the sureties. '
The fact that the contractor has been dilatory in the work from the be-
ginning does not entitle the owner to refuse to pay an installment which is
fully earned, and to terminate the contract as for a breach, when the owner
has acquiesced in the delay up to the time the installment was due.® The
fact that a party has not performed his contract even according to its legal
•effect does-not necessarily entitle the other party to rescission, if either or both
have partly performed, and circumstances of embarrassment have thereby
arisen which make it impracticable to restore the parties to their original
status.®* It is not every partial neglect or refusal to comply with some of
the terms of the contract which will entitle the other party to abandon the
contract. To justify an abandonment the object of the contract must have
been defeated or rendered unattainable by the misconduct or default of the
party. ^°
Some of the cases hold that the nonpayment must amount to a re-
fusal or be under such circumstances as to warrant the belief that the con-
tractor was prevented from completing the contract." He must, it seems,
be justified in abandoning the work. A contract providing that payments
should be made on estimates as the work progressed, implies that the estimates
shall be made at reasonable intervals as the work progresses at the con-
' Phillips & C. C. Co. V. Seymour, 91 U. but see Cox v. McLaughlin, 76 Cal. 60.
S. 646 ; Schwartz v. Sanders, 46 111. 18 ; ' Casey -y. Gunn, 29 Mo. App. 14; semhle,
Cariuin v. Del. & O. R. Co. (N. Y. App.), Raabe v. Squier (N. Y. App.), 42 N. E.
34 N. E. Ray). 201 ; Dunn v. Johnson, 33 Rep. 516.
Ind. 54 ; Hill v. Hovey, 26 Vt. 109. « Smith v. Corn. 23 N. Y. Supp. 326 .
2 Phillips & C. C. Co. V. Seymour, an(? «ee Kilgore iJ. K W. Baptist Ed. Soc.
supra ; Tuomas «. Stewart (N. Y. App.), (Tex. Sup.), 37 S. W. Rep. 598.
30 N. E. Rep. 577. 9 Blake v. Pine Mountain Iron & Coal
3 Money v. York Iron Co. (Mich.), 46 N. Co. (C. C. A.), 76 Fed. Rep. 620.
W. Rep. 376 [1890]. lo Selby v. Hutchinson, 4 Gilm. 319 ;
* C-inal Co. V. Gordon, 6 Wall. 561 [1867]. Young d. Preston, 4 Cranch 239; Andrews
^Thompson v. Goble, 16 Pac. Rep. 713 v. Montgomery. 19 Johns. 205.
.{1888]. 11 Wilson v, Bauman, 80 111. 493 [18751.
« Canal Co. v. Gordon, 6 Wall. 561 [1867];
* See Sec. 681, supra.
624 ENGINEERING AND ABC HITEG TUBAL JURISPRUDENCE. [§ 687.
tractor's request, so that, on the landowner's refusal to -make the estimates
in that manner after demand, and to make payments, the contractor was
warranted in refusing to complete the contract/ When the contract pro-
vides that if the contractor fail to pay for labor and materials, the owner
may refuse to pay installments, otherwise payable, such refusal is no proof
of the abandonment of the contract, nor is the fact that the owner has had
the work done when the contractor has refused to finish it.'
, To claim prospective profits that contractor would have earned had he
completed the contract, there are cases to the effect that either performance
must have been made dependent on such payments being made, or the non-
payment and other acts must have prevented the contractor's performance.*
There are several decisions which are authority for the statement that a
failure to make a specific payment will not permit the contractor to recover
the contract prices for work done, nor the profits he would have made had
he completed work, but that his recovery should be upon a quantum rneruit
for the value of the work actually done. The court said :* " A failure to make-
a specified payment does not authorize a contractor to abandon the work and
sue on the contract, but he may have an action for damages. It does not termi-
nate the contract or authorize the contractor to rescind the contract. Where-
it is known that the party in default is struggling to perform, it is as-unreason-
able as it is unjust, to conclude from a temporary failure to perform that he
consents to a rescission. A total failure of performance, which indicates a
disposition to abandon the contract or a refusal to go on with it, may be
considered as a consent to a rescission."
Other cases hold that in order to justify a contractor in abandoning
further performance and suing for future profits, it is not sufficient that
the other party has broken substantial provisions of the contract and mani-^
fests an intention to continue such breaches, but it must also be shown that
the breaches prevented the innocent party from executing the contract, or
rendered its objects unattainable by proper performance.' When an owner
^ Newton o. Highland Imp. Co. (Minn.), S. 30 [1878]; semble, McGonigle v. Klein-
64 N. W. Rep. 1146. (Colo. App.), 40 Pac. Rep. 465: Fairfield
2 Casey «. Gunn, 29 Mo. App. 14. r. Jeffreys, 68 Iiid. 578; Chapman v. Deaue,
3 Whnrlon & Co. v. Winch, 19 N. Y. 34 Mich. 375; Bergen v. New Orleans, 35
Siipn. 477; rg«ers«cZ^^l (N. Y. App.), 35 N. La. 523; hut see De Mattos v. Jordan
E. Rep. 589. (Wash.), 46 Pac. Rep. 402. The Illinois
* Cox V. McLoughlin, 54 Cal. 605, and case was subsequently overruled, the court
76 Cal 60 [1888]. holding that where one party to a contract
^ Lake Shore & M. S. Ry. Co. v. Richards violates some of its substantial provision^,
(111.). 32 N. E Rep. 402, 40 111. App. 560; so as to deprive the other party of the
reversed; William Wharton & Co. v. Winch benefits of the contract and manifests an
(Com. PI.). 19 N. Y. Supp. 477; accord, intention to continue such breaches, the
Cox n. McLaughlin, 76 Cal. 60; Christian other party may abandon further perform-
Co. «. Overholt, 18111. 223; Bethel -Jx Salem ance of the contract and sue for future-
Imp. Co. (Va ). 25 S. E. Rep. 304; ancf see profits, although such breaches did not
Graf V. Cunningham (N. Y.), 16 N. E. amount to a physical obstruction or pre-
Rep. 551 [1888]; semble, Watson v. Gray's vention of performance by such other
Harb. B. Co. (Wash.). 28 Pac. Rep. 527; party. Lake Shore & M. S. Ry. Co. v.
and semble, Quinn v. United States, 99 U. Richards (111. Sup.), 38 N. E. Rep. 773.
§ 688.] CONTRACT STIPULATIONS. 625
notified the contractor that if he did not complete a structure he (the
owner) should, at the expiration of three days, complete it himself, and the
contractor informed the owner that he would proceed as soon as he could
obtain certain materials, and afterwards the contractor notified the owner
that he could not secure the materials, but that if the owner could get
them elsewhere he would send men to finish the building, it was held that
the contractor remain in charge of the building, and was responsible for ita
proper construction/
To be entitled to prospective profits it seems that the contractor must
have abandoned the contract in its entirety. Whether he did or has sa
abandoned it, is a question for the jury.'*
If the contractor acknowledge his inability to proceed with the contract,,
it has been held not necessary for the owner to demand a performance be-
fore suing for the breach.^ If either party, by his words or conduct, show&
a fixed intention to abandon it, the other party is justified in treating it as
abandoned,* and the latter may bring his action though the tiftie for com-
pletion has not arrived, if the party in default disregards the terms of his
contract and refuses to fulfill his agreement/ His failure to perform need
not have been wilful, it seems."
688. Abusive Conduct of Owner may be a Just Cause for Abandonment
by Contractor. — It has been held that a contractor may at his option con-
tinue work, or abandon it and recover for what he has done, where he has^
asked for money and has been told ^^to go on with the work or leave the
building," he having left. ^ But when the owner told the contractor, **If
you won't go on with your work, go away! " when he was complaining of un-
necessary delay on part of owner in supplying materials, it was held not to
amount to a rescission of contract/ Abusive conduct, threats, and an assault
by the owner, accompanied with an order " never to come upon the work&
again," was held to justify an abandonment of the work by the contractor and
a recovery for what was done, even though the contractor was ordered by the
owner to complete the works/ Where a contract provides that a certain
payment should be made when the work is completed, and the contractor
was delayed in his work by the delay of another independent contractor's
work which was to be done first, and the contractor used all diligence in
prosecuting the work after it was possible for him to do so, and went pre-
' Wnshburu v. Dettlnger (Sup.), 27 N. ^ gi^^gg Maiblehead L. Co. v. Smith, 11
Y. Siipp. 540. Ohio Cir. Ct. Rep. 213.
2 Win. Wharton & Co. -y. Winch (KY. « Bacon v. Green (Fla.), 18 So. Rep.
App.). 35 N. E. Rep. 589. 870.
'^ Dwyer -y. Tulane Ed. Fund's Admr's. ' Clayton, et al., v. McConnell, 14 Ont.
(La.). 17 So. Rep. 796; but see Clark v. Rep. 608 [1887],
Nat. Ben. & Cas. Co. (C. C). 67 Fed. Rep. « Clayton v. McConnell, 15 Ont. App.
222; contra; and see Davidson v. Jersey 560 [1888]; following Midland R. Co- v.
Co Ass'n.. 71 N. Y. 333. Ontario R. M Co., 10 Ont App. 677.
4 Ki I i^i TO tJ. Northwest Tex. Baptist Ed. ^ Sproessig v. Kentel, 17 N. Y. Supp.
Soc. (Tex.), 37 S. W. Rep. 473. 839.
626 ENQINEERING AND ARCniTECTUttAL JURISPRUDENCE. [§ 689
pared to finish the job, but was ordered off by the owner, who had put other
men on the work, it was held a substantial compliance, and to entitle the
contractor to his payment/
If the owner has once given the contractor just cause for rescinding the
contract, and the latter has not again taken up the work as if under the con-
tract, the owner cannot bring him back under its terms by giving him notice,
written or otherwise, to proceed with the work. Such a notice does not
effect the contractor's right to take advantage of the owner's breach and to
recover damages for it if he has not resumed work under it or in obedience
to it.''
It has been held that a refusal to grant an extension of time for per-
formance of a contract rescinded the contract, when the election to rescind
within a certain time was reserved to either party by the terms of the con-
tract.'
689. Neglect or Refusal of Owner to Provide Materials, Labor, Lines,
Levels, Plans, Site, or Permits, as He Agreed to Do, may be a Cause for
Abandonment by the Contractor.* — If the owner has agreed to furnish
certain essential parts or things to the contractor, and he fails or refuses to
provide them pursuant to his contract, such failure or refusal may justify
the contractor in abandoning the job." It was so held when the owner
neglected to furnish well-seasoned boards for flooring as they were wanted,
which the contractor was to lay. The contractor having abandoned the
job, it was held he could recover for what work he had done; that there was
a condition precedent to performance that the boards should be furnished
as they were wanted, and that when the owner had means of knowing when
the boards would be wanted, that the contractor was under no obligation to
make a special demand for tlie materials.* So when a contractor was to
paint a house for a certain sum, the materials to be supplied b< the owner,
who neglected to furnish more materials when the paint gave o:it, it was
beld he could recover compensation, as for day work."
The state is equally liable with a person for its failure t<> ha^e other
contractors provide work or materials, and for acts and negligence ot state
agents and officers.'' If the contractor is to furnish the labor bui n^
' Highton «. Dessau (Com. PI.), 19 N. gerald v. Hayward, 50 Mo. 516.
Y. Supp. 395 ; Current v. Fulton (Ind. ^ jjiu ^ Hove v. 26 Vt, 109 : aM se^
App ), 38 K E. Rep. 419. Greene v. Halev, 5 R. I. 260, and Hollister
2 Rayburn v. Comstonk fMich.), 45 N. v. Molt. 132 N. Y. 18; bu'. see, Scales v.
W. Rep. 378 [1890]; Sproessig ??. Kental, Wiley (Vt.), 33 Atl. Rep. 771
17 N. Y. Supp. 839; semble, Graf v. Cun- « Cargain v Everett (Sup.). 16 N. Y.
ningham (N. Y.), 10 N. E. Rep. 551 Supp. 688; Palmer v. Breen. 24 KW. Rep.
'[1888]. 322; accord, Anderson E. Co. h. Cleburne
=« Thayer v. Allison, 109 111. 180. W. I. & L. Co. (Tex.). 27 S. W. Rep. 504.
4 Hill v. Hovey, et al., 26 Vt. 109 [1853]; ' State v. Farrish, 23 Miss. 483; United
.'Bennett v. Shaughnessy, 6 Utah 273 [1889]; States v. Mueller, 113 U. S. 153.
iMcCullough V. Baker, 47 AIo. 401; Fitz-
* See Sees. 324, 326, 439, 440, and 674-680, supra.
§ 689.] CONTRACT STIPULATIONS. 627
materials, and nothing is said as to who shall furnish the materials, the
owner must provide the materials.*
If the owner fails to get the necessary permits to move or erect a build-
ing ill a city, he is nevertheless liable to the contractor for his services rendered
in preparing or trying to carry out his contract." When the owner has
failed to furnish the requisite plans and specifications according to his agree-
ment, the contractor need not demand further specifications nor deliver the
balance of the materials to recover for the breach.'
It seems that when the owner fails or refuses to perform the under-
takings he has assumed and which are requisite to the completion of the
contractor's agreement, that the latter may himself furnish the same or
other means of performing his contract, even against the owner's will and
wishes, and that he may recover the expense of such extras. Under such
circumstances it was held that a contractor could recover for scaffolding
erected about a water-tower, the owner having failed to perform his agree-
ment to keep the water in the tower at any height desired by the contractor,
so that he could work on a float inside the tower.* A contractor was held
entitled to recover sums paid for engineering, which the company was to
pay for or provide by the terms of the contract.* If the contractor cannot
provide the things or information which the owner was to supply, he may
omit so much and recover the contract price, less the cost of applying or
fitting the things which the owner failed to supply.'
If the owner fails to furnish materials per contract at proper time, the
contractor is entitled to damages for the delay, even though he has con-
tinued the work to completion.' Whether or not the contract was upon a
condition that the owner should give lines and grades for the work has been
held a proper question for a jury."
The fact that a contractor was prevented from appropriating, to his own
use, certain materials of excavation under a contract for the construction of
4
1 Ferine «. Standfield (Mich.), 65 N. W. (N. Y.), 546. '<
Rep. 541. 5 Central Trust Co. -». Condon (C. C.
2 Tlieobald v. Burleigh (K H.), 23 K E. A.), 67 Fed. Rep. 84. For gradincr the loca-
Rep. 367 [1891]; <xnrf«<?tfLanahan «. Heaver tion of a structure, Becker v. Natl. Pro-
(Md.), 29 Atl. Rep. 1036. and Thorp v. hib. Park Co. (Sup.), 23 N. Y. Supp. 380.
Ross, 4 Abb. App. Dec. (N. Y.). 416, and « Eastern Granite Co. v. Heim (la.), 57 N.
Deeves v. New York (Super. Ct.), 17 N. W. Rep. 437 ; Louisville & N. R. Co. v.
Y. Supp. 460. Hollerbacli. 3 West. Rep. 364.
3 DcLoache v. Smith (Ga.), 10 S. E. Rep. ' Tobey «. Price, 75 111. 645 [1874] ; and
436; Wood r. Malone, 131 Pa. St. 554; see Grannis Lumber Co. ■». Deeves (Sup.),
Roberts v. Bury Commrs., L. R. 4 C. P. 25 N. Y. Supp. 375; and Hood v. Raines,
310, and 5 C. P. 325; and see Benner v. 19 Tex. 400; Bulkley «. Brainard, 2 Root
Phoenix •'. & r. Co. (Sup.), 30 N. Y. Supp. (Conn.) 5; and se^Blanchard v. Blackstone,
290, where owner was to make improve- 102 Mass. 343, where the site of a structure
monts; Weeks v. Little, 89 N. Y. 566; Van was not selected.
Buren v. Digires. 11 Hov/. (U. S.), 461;Mc- « Hammond v. Beeson (Mo.), 20 S. W.
An 'rows v. Tippetts, 39 N. J. Law 105; Rep. 474; and see O'Connor v. Smith, 84
Smith V. Roe. 7 Col. 95; Sinnott v. Mullin, Tex. 232. where subcontractor was delayed
82 P;\. St. 333. by owner's failure to have surveys made,
4 Nason Mfg. Co. « Stephens, 50 Hun andW\\\ie'D. School District (Pa.), 28 Atl.
606 [1388]; but see Thorp v. Ross, 4 Keyes Rep. 136.
628 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 690.
sewers, a portion of which ran through private property, will not entitle the
contractor to rescind his contract, as the right to the stone did not accrue
until the work was completed/ If the owner contracts for the carpentry
work npon a building, the same to proceed forthwith without delay, he must
have the building ready for the carpenter within a reasonable time, or com-
pensate him in damages for the delay."
Delay caused by the owner's inspector rejecting (in good faith) materials
which he considered were not according to specifications, under a power con-
ferred by the contract, is not chargeable to the owner or company."
An injunction restraining the contractor from performing his contract
"will excuse non-performance if the injunction is not dissolved in time for him
to proceed with the work;* * but it will give the contractor no right to damages
against the owner unless the jury find that the owner failed to use reasonable
diligence in getting the injunction removed.^ If, however, the contractor
has been enjoined from moving a house by a third party with notice of the
the contract and the then position of the house on a beach, he may recover,
as damages, the value of his time thereby lost, the wages of men for such
extra time as he was obliged to pay them on account thereof, the expense of
protecting the house from the sea, and the value of apparatus lost by high
tide, without fault of his, while protecting it, together with the profits which
he would have made but for the injunction.*
690. Measure of Recovery when Contractor has been Prevented from
Performing His Contract — Two Lines of Action He may Pursue. — If the
contractor has been prevented or excused from a full performance of his con-
tract by the orders or conduct of the other party, he may, in his discretion,
either elect to consider the contract rescinded, and recover on the common
counts for the value of the work and materials he has furnised, i.e., on a
quantum meruit,'^ i.e., for its reasonable value, though it be in excess of the
1 Becker «. Philadelphia (Pa.), 16 All. « Galveston City R. Co. v. Miller (Tex.),
Rep. 625 [1889] ; and see Saug «. Duliith 38 S. W. Rep 1132.
(Minn), 59 N. W. Rep. 878. ' Hunter v. Walter (N. Y. App.), 29 N.
2 Thorp v. Ross, 4 Keyes (N. Y.) 546; E. Rep. 145; affirming 12 N. Y. Supp. 60;
Allainon v. Albany, 43 Barb. (N. Y.) 33; Porter •». Arrowhead Res. Co. (Cal.), 35
Tobey v. Price, 75 111. 645, mason work; Pac. Rep. 146; Simmons v. Lawrence, 133
Schwartz «. Siuinders, 46 111. 18; Mansfield Mass. 298; Fox v. Burchard, 130 Mass. 424;
«. N. Y. C. R. R. Co., 102 N. Y. 205. Canal Co. v. Gordon, 6 Wall. 561 [1867] ;
S.Montgomery ®. New York (Super.), 29 Belshaw li. Colie, 1 E. D. Smith 213
]Sr Y. Supp. 687; accord, White v. School [1851] : Kelley v. Rowane, 83 Mo. App.
Dist (Pa.), 28Atl. Rep. 136. 440 [1889]: Caldwell v. Meyers (S. D.),
^Bnrkhardt^. Georgia S;hoolTp.(S.D.), 51 N. W. Rep. 210 [1892]; Fitzgerald v.
«9 K W. Rep. 16. The same will hold Hayward, 50 Mo 416; Jones «. Jmld, 4 N.
if own r prevent contractor from doing Y. 412; Ehrlich r jEtna Ins Co., 4 West.
Avork. Wills V. Webster (Sup.), 37 N. Rep 40; Ahern v. Boyce, 2 West Rep.
Y. Supp 354; Whitfield «. Zellnor, 2 Gush- 405; McElwee v. Bridgeport Ld. Co., 54
man (Miss.) 663; and see Heme v. Meyer, Fed. Rep. 627; Clark « Mayor, etc.. 4 N.
61 N. Y. 171; J<uies t). Judd, 4N. Y. 412. Y. 388 [1850] ; Adams v. Burbank (Cal.),
^ Phila., etc., R. Co. v. Howard, 18 How. 37 Pac. Rep. 640; other cases, 29 Amer. «fe
307: Matiiewson v. Grand Rapids (Mich.), En<r. Ency. Law 903; Byron?). Mayor, 54
50 N. W. Rep. 656. N.^Y. Super. Ct. 411 [1827], which held
* See Sec. 556, supra.
§ 691.] CONTRACT STIPULATIONS. 629
contract rate; ^ or he may sue upon the contract and recover for the work
he has completed at the contract prices, and in addition, the profits he would
have made if he had been allowed to complete the work, and any other
losses sustained by the breach.'
691. Contractor must Follow the Line of Action Adopted — He cannot
Adopt Contract and at Same Time Repudiate It. — A breach of the contract
by tlie owner, if it goes to the essence of the contract, does away with the
contract entirely if the contractor so elect. If the contract prices and terms
are in the contractor's favor he will be likely to bring an action for dam-
ages for its breach, and if the prices in the contract are low, and its require-
ments a burden, he will of course take advantage of the company's breach
iind bring suit to recover for the actual value of his work and materials,
treating the contract as rescinded. He can adopt either mode of redress,
but he cannot employ both. '* He cannot affirm the contract for one pur-
pose and repudiate it for another." ^
When the contractor is prevented from completing his contract by an
unauthorized declaration of a forfeiture, the value of the work done and mate-
rials furnished by him under the contract must be fixed by the prices and
stipulations of that contract as far as they can be applied, and he cannot pro-
ceed upon a quantu7ri 7neruit or quantum valehat in disregard of the special
oontract." If the contract itself furnish no rule or schedule by which the
value of work done can be determined, then the contractor may recover for
its reasonable value. ^
If the contractor is compelled to abandon the work in consequence of
obstacles and embarrassment and delays, the rule that the special contract
that a defense that the contractor had Bauman, 80 111. 493; Webster ■». Enfield, 5
not obtained Ihe engineer's certificate as Gilm. 300; Selby v. Hutchinson, 4 Gilm.
required by the contract could not be 319; Olson r. Nonenmacher (Miiin.), 65 N.
setup. W. Rep. 642; Potts v. Ft. Pleasant Ld.
1 Hemmincrer v. Western Assur. Co. Co. (N. J.), 8 Atl. Rep. 109 [1887] ; Clark
(Mich.), 54 N.W. Rep. 949; Clark d. Mayor, «. Mayor, etc., 4 K Y. 338 [1850] ; Heine
€tc., of New York, 4 N. Y. 338 [1850]. v. Mayor, 61 N. Y. 171 [1874].
Nor will the contractor's claim be restricted •''Byron v. Low (N. Y. App.), 16 N. E.
to what is coming to him by the final esti- Rep. 45 [1888] ; compare Dutch v. Warren,
mate of the engineer. Tlie Memphis, etc., Keener's Ca^es of Qwasi Contracts 61.
R. Co. V. Wilcox, 48 Pa. St 161 [1864] ; " City of Chicago v. Sexton, 115 111. 230
semble. Tennessee, etc., R. Co. v. Danforlh [1885] : Meyer ». Hallock. 2 Robt. (N. Y.)
(Ala.) 13 So. Rep. 51 [1893] ; or he may re- 284: Clark v. Scanlan, 36 111. App. 48
cover less than the contract price, if his [1888] ; Koon v. Greenman, 7 Wend. (N.
work is not reasonably worth it. Allen v. Y.)121; and see Lincoln v. Schwartz. 70
McKibben, 5 Mich. 449 111. 134 [1873] ; Chambers v. King, 8 Mo.
2 Jones v. Judd. 4 N. Y. 412; Gibbons 517; McCausland v. Ciesap. 3 G. Gr. (Li.)
^. Rente (Minn.), 53 N.W. Rep. 756; Phil- 161; Hayden v. Madison, 7 Me. 76; Walsh
lips Co. V Seymour. 91 U. S. 646; Wind- «. Jeiiney (Md), 36 Atl. Kep. 817; Sands
mullcr V. Pone (N. Y.), 14 N. E. Rpp. 436 v. Potter (111. Sup.), 46 W. E. Rep. 282;
11888]; McElwee v. Bridgeport Ld. & Kocher «. Mayberry (Tex.), 39S. W. Rep.
Imp. Co., 54 Fed. Rep. 627; Gnstlin v. 604 [1897].
Weeks (Ind. App.), 28 N. E. Rep. 331 ^ Lincoln v. Shwarfz, 70111. 134; hut see
[1891] ; Danforth v. Tennessee & C. R. Fladung v. Dawson (Cal.), 43 Pac. Rep.
Co. (Ala.), 11 So. Rep. 60; Nourse v. 1107. .
United States, 25 Ct. of CI. 7; Wilson v.
630 ENOINEERINQ AND AHCHITECTUUAL JURISPRUDENCE. [§ 691.
rate must control the amount of recovery no longer prevails, and the con-
tractor is entitled to the actual value of his work/
If the contractor has elected to consider the contract rescinded [broken]
by the owner or company and brings his action for labor and materials gen-
erally, he cannot recover prospective profits on the unexecuted part of the
contract, he can recover the reasonable value of the work and materials
furnished and no more.'' The general rule of recovery when deviations and
alterations are made is the contract price/ * The contract is admissible in
evidence as proof of the value of the work, but is not conclusive on that
point."
When the contractor has elected to sue upon the contract he cannot
recover on a quantum meruit for the reasonable value of his labor and mate-
rials.* He cannot show the actual value of the work done," nor can he show
the performance of the contract was waived, he must win or lose upon the
contract sued on,' unless the court permit an amended complaint to be filed.*
If the contractor has ignored the contract and brought suit for the value
of the work and materials furnished on the common counts, his recovery
will be confined to the actual or reasonable value of what he has done under
the contract; he cannot introduce evidence of a contract to do the work,
etc., for a fixed amount." If the owner prove a special contract and that
there was no breach when the contractor has declared generally for labor
and materials, he cannot recover,'" unless the court allows him to amend
his complaint." If contractor has sued on a quantum, meruit for work fully
performed under an express contract, the owner cannot for the first time, on
appeal, object to the form of the i\ction."
As heretofore explained, when the cod tractor has been refused the right
to complete his contract, or the progress of the work has been inter-
rupted arbitrarily by the owner, the measure of recovery for the breach
1 Doiightv V. O'Donnell. 4 Daly (N. Y ) C. 533 [1838].
60; and see Kearney v. Doyle, 22 Mich. 294; « Gibney v. Turner (Ark.), 12 S. W. Rep.
Ehrlioh v ^tna. 15 Mo. App. 552, 88 Mo. 201 [1889] ; Seibert «. Householder (Pa.),
249; McCulloiigh i). Baker. 47 Mo. 401; 10 Atl. Rep. 784 [1887J.
Stowe «. Biittrick. 125 Mass. 449; Tilden ' Fauble«. Davis, 48 la. 462 [1878]; sem-
'0. Besley. 42 Mich. 100; Plauche v. Col- ble. Carter tj. Gordon (Ind ), 23 N. E. Rep.
burn. 8 Bing. 14; Lawson v. Wallesey, 268; and see Rathbun v. Thurston Co., 8
etc , 48 L. T. 507; Allen v. McKibben, 5 Wash. 238; Free v. Prices Exec'r (Ky.),
Micii. 449. 39 S. W. Rep. 429.
2 Clark V. Mayor, etc., 4 N. Y. 338 « Cox ??. McLaughlin, 76 Cal. 60
[18 0]. « Imhof V. House (Neb ). 53 N W. Rep.
3 Wilson V. Bauman, 80 111. 493 [1375]. 1032.
'^ Adams ^. Burbank(Cal.), 37 Pac. Rep. i« Willis v. Melville, 19 La. Ann. 13
640; 5w< see Imhoff «. H.Mise (Neb.V 53 N. [1867]; Murphy «. Taylor (Pa. Sup) 33
W. R(ii. 1032; and s e Folliot v. Hunt 21 Atl. Rep. 104.
111. (i54; Fitzgerald v. Havward, 50 Mo. " Cox v. McLaughlin, «wprffl (Cal.), L8
516: Kelly v. Rowane, 33 Mo. App. 440. Pac. Rep. 100 [1888] ; semble, Robinson v.
s Warson v. McElrov. 38 Mo App. 553 Pari.'^h, 62 111. 130 [1871].
[1889] ; Coudran v. New Orleans (La.) 9 ^'^ Gillies v. Manhattan B. Imp. Co. (N.
So. Rep. 31; Fresh v. Gilson, 5 Cranch C. Y. App.), 42 N. E. Rep. 196.
* ^ee Extra Work, Sees. 569-576, supra.
§ 693.] CONTRACT STIPULATIONS. 651
of the contract is: (1) The value of the work and materials already furnished
at the contract prices.' (2) Any loss or damages he has suffered on labor,
materials, or subcontracts, engaged or entered into for the performance of
the contract." (3) Any extra materials and labor he has furnished at the
request of the owner or with his knowledge and consent, outside of the
special contract. (4) Such profits as he would, with reasonable certainty,*
have made had he completed the contract.* Briefly stated, the rule ia
recompense to the contractor for the part performance, and indemnity for his
loss in respect to the part unexecuted/
Th6 measure of damages has been held the difference between the con-
tract price and the amount it would have cost the contractor to perform the
contract, including as a part of such cost the reasonable value of the time he
would have used." It seems that the attorney's fees expended in an injunc-
tion suit to remove a barrier to the work cannot be recovered as an item of
damages.''
692. Work only Partly Performed, which was to be Completed for a
Lump Sum. — If the whole work has been undertaken for a lump sum, to be
paid on completion, the contractor may recover for what he has done, such
a proportional part of the whole contract price as the work and materials
furnished bears to the whole work to be done, under the contract/ The
fact that the work performed is easier and less expensive than that which
remains is no ground for a reduction of the amount to be paid." * Another
court makes the measure of recovery such a proportion of the entire price
as t\\Q fair cost of the work done bears to the/«i> cost of the whole work,*'
which rule avoids the question of whether the work done was less or more
expensive than what remains to be done. \
693. Recovery of Expenses Incident to Preparation to Undertake Work.
— The second item of recovery includes any loss the contractor has incurred
to provide means for furnishing or doing the unexecuted part of the work."
' TnylortJ. Saxe (K Y. App.), 31 N. E. S. W. 586 [1897].
Rep. 258; Wilsou v. Bauman, 80 111. 493 ' Burruss v. Hines (Va.), 26 S. E. Rep.
[1875]. 875 [1897].
2 Van Doru v. Mengedobt (Neb.), 59 N. « Upstone v Weir, 54 Cal. 124 [1880];
W. Rep. 800; sem'ile. King «. Des Moines Thomas «. L'Hote, 23 La. Ann 73, when
(Iowa). 68 N. W. Rep. 708; Taylor v. Saxe contractor was dead; and see Planche v.
(N. Y. App.), 31 K E. Rep. 258. Colburn, 8 Bing. 14; "Contract price" is
' Tennessee & C. R. C!o. v. Danforth the price agreed upon less the proper de-
(Ala.) 13 So. Rep. 51. ductions for delay, etc. Johnson v. White
4 AUphin V. Working (111.), 34 N. E. (Tex.), 27 S. W. Rep. 174.
Rep. 54 [1890]; Roberts iJ.Drehmer (Neb.), » Jones «. Judd, 4 N. Y. 412 [1850], a
59 N. W. Rep. 911. strong dissenting vote.
^Upstone V. Weir, 54 Cal. 124 [1880]; '» Kehoe ?;. Rutherford (N. J.), 27 Atl.
and see Cutter v. Powell, 2 Sm. Leading Rep. 912; McCausland v. Cresap, 3 G. Gr.
Cas. (H. & W. notes) 44; Lawson v Walla- (la.). 161.
sey, etc., 48 L. T. 507; Hale v. John- ii Upstone v. Weir, 54 Cal. 124 [1880];
son, 6 Kans. 137. • Van Dorn v. Mengedobt (Neb.), 59 N. W.
*.Joske V. Pleasants (Tex. Civ. App.), 39 Rep. 800.
* See Sec. 581, supra. f See Sec. 697, infra.
€32 ENGINEEIUNG AND ARCHITECTURAL JURISPRUDENCE. [§ 694.
Damages that could have been avoided by reasonable exertion and care can-
not be recovered.* The contractor may waive the breach of his contract
and recover in assumpsit for materials and tools used and destroyed which
were left in the owner's possession."
The contractor may show that he bought materials which, by reason of
their design, cannot be used elsewhere, and must therefore be sold at a loss.'
He cannot, it seems, recover for lumber purchased before the contract was
executed, though it was bought at the request of the owner, the contract
not having been completed.* He may show what the use of his tools is
worth to assist in determining the value of his services.^ He is not, it
seems, entitled to the expenses of moving his outfit to the field of opera-
tion, that being an item of cost in performing the work, and an item of
expense which figures prominently in determining his profits on the job."
A contractor's book of wages paid his workmen is admissible to show the
value of work and services, though it seems entries therein are not evidence
against him of the wages or prices he was to receive.'
The first and second items of recovery may be had in all cases, and do
not depend upon the fourth; i.e., a failure to prove profits will not prevent
■a contractor from recovering the first and second items.'
694. Recovery of Prospective Profits. — The fourth item of recovery, that
■of profits, gives the most trouble to determine. Courts usually content
themselves with a statement that the contractor is entitled to the profit he
would have realized had he been permitted to complete the work, without
any further explanation as to how the cash value of such profits is to be
■determined.*
It is well for the contractor that courts and juries do not have the same
knowledge and appreciation that engineers aiid contractors possess of the
uncertainty of profits under a construction contract. The reader of this
Volume must have some idea of the many misfortunes, accidents, and casual-
ties that may overtake the most cautious men and wipe out the largest
prospective gains. If the profits or value of the obligation broken cannot be
ascertained or estimated, then the contractor can recover only the reasonable
value of the services and materials furnished or the actual losses suffered.
' Hodges V. Fries (Fla.), 15 So. Rep. 682. » Nelson 'd. Morse, 52 Wis. 240; Boyd u.
2 Elgin ®. Joslyn (111.), 26 K E. Rep. Meighan,48]Sr. J. L. 404 [1886]; Watson v.
1090 [1890]. Gray's Harbor B. Co. (Wash.), 28 Pac.
2 Wells ij. Bd. of Ed. (Mich.), 44 N. W. Rep. 527; Upstone c. Weir, 54 Cal. 124
Rep. 267 [1890]. [1880]; Co. of Christian r. Overholt, 18
4 Jackson v. Carson (Mass.). 35 K E. 111. 223; Kehoe v. Rutherford (N. J.). 27
Rep. 483. Atl. Rep. 912; Gordon v. Norris, 49 K
^O'Keefe «. St. Francis' Church, 59 H. 376 [1870] ; an<? see McClair ?;. Aiisiiii
Conn. 551 [1890]. (Colo.), 31 Pac Rep. 225; Hawley v. Corey
« Hawley v. Corey (Utah), 33 Pac. Rep. (Utah), 33 Pnc. Rep. 695; Nourset?. United
695: accord, O'Connor ■». Smith (Tex.), 19 States. 25 Ct. of CI. 7; Shoemaker ■y.
S. W. Rep. 168 [1892J. Acker (Cal.), 48 Pac. Rep. 62; hut see
'' Currier v. Boston & M. R. Co., 31 N. Louisville & N. R. Co. v. Hollerbach, 3
H. 209. West. Rep. 364.
8 United States id. Behan, 110 U. S. 338.
§ 695.] CONTRACT STIPULATIONS. 633
A refusal by a railroad company to give an annual pass over its road
in consideration of services rendered according to its contract was held an
instance where the value was impossible of proof,' and the profits that a the-
atrical performance might have netted, was held not ascertainable.'
These cases illustrate the wisdom and necessity of inserting in a construc-
tion contract a clause for stipulated damages, not only for the breach of the
contractor, but for the breach of the owner or company as well. If the
value of a pass or of an evening's entertainment cannot be estimated, when
there are so many cases from which an average could be struck, and so many
circumstances, such as the former use or patronage that the same and other
parties had enjoyed, how can it be hoped to estimate the damages resulting
from a breach of a contract for a large engineering or architectural under-
taking.
695. What Prospective Profits may be Recovered. — It has been held that
the profits need not be certain; that if they were reasonably probable they
might be recovered, but not if speculative, contingent, or remote.' They
must be certain both in respect to their nature and the cause from which
they proceed." The profits should be the direct fruit of the contract, and
not be too remote nor speculative.^
Profits or advantages which are the direct and immediate fruits of a con-
tract are part and parcel of the contract itself, something stipulated for, and
the right to the enjoyment of which is just as clear and plain as to the ful-
fillment of any other stipulation. Such profits and benefits are presumed to
have been taken into consideration and deliberated upon before the contract
was made, and may have formed the chief inducement to make the agree-
ment." Therefore it is frequently held that profits as well as damages recov-
erable must be such as can be fairly supposed to have been within the contem-
plation of the parties when the contract was made.'' It has therefore been
held that written estimates made by the company's engineers after the con-
tract had been entered into, and which could not have been considered in
making the contract, could not be placed before the jury to disprove the
amount of profits that would have been realized had they been allowed to
complete the contract.®
A number of cases have described prospective profits in such cases as the
difference between the amount which the contractor would have received for
'Brown v. St. Psml M. & M. Ry. Co. [1884]; 5 Amer. & Ens:, Ency. Law 32, 33.
(Minn.), 31 N.W. Rep. 941 [1887]. « Masterton v. Mayor of Brooklyn, 7
2 Bernstein v. Meech (N. Y. App.) 29 N. Hill (N. Y.) 62; and cases collected in 5
E. llep 255. Amer. & Enc:. Ency. Law 32, 33.
=* Tennessee & C. R. Co. v. Danforth 'Hunt «. Oregon Pac. Ry. Co., 36 Fed.
(Ala.), 13 So. Rep. 51; see Abbott v. Gatch, Rep. 481 [1888]; Liljin^ren F. & F. Co. «.
13 M(l. 314, and McConey v. Wallace Mead (Minn.), 44 N. W. Rep. 306; Froh-
(Mo.), 4 West. Rep. 843. reich v. Gaimnon, 28 Minn. 476.
4 Hunt V. Oregon Pac. Ry. Co., 36 Fed. » Tennessee, etc., R. Co. v. Daufortk
Rep 481 [1888] (Ala.), 13 So. 51 [1893].
6 United States v. Behan, 110 U. S. 338
634 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 696.
the entire work at the contract price and what it would cost him to perform
it.'
The amounts of work to be performed which may be taken as tlie basis;
of such an estimate of the cost are the quantities given in the specifications,'
or shown on the plans and described in the contract,' and it is submitted
that the advertisement and proposal might be utilized if the contract speci-
fications and plans did not furnish an estimate of its magnitude, but not, it
seems, estimates by the company^s engineers made after the contract was
entered into.*
What a contractor "thinks^' or " calculates '^ he would have made but
for the breach of the owner cannot be received as evidence; * nor can wit-
nesses be allowed to give their opinions as to the value of prospective^
profits." The best evidence of prospective profits of a job is a careful esti-
mate of the actual value of the work in comparison with the contract price^
supported by proof that the values adopted are reasonable and fair/ The
cost of the work, so far as it was prosecuted by the contractor, may be shown
to determine the cost of the unfinished work, the unfinished part being-
essentially the same as that completed.^
Some cases hold that the contractor should make reasonable reductions
for his own time which it would require to perform, and for his relief from
the care, trouble, risk, responsibility, and anxiety attending a full perform-
ance of the contract.'
696. Profits made by Contractor on Other Jobs Cannot be Considered. —
The measure of damages is not the difference between the contract price of
the work and the sum which the contractor actually received from other
employments during the time which lie would have been required to com-
plete the work." Nor can the profit which he made out of other jobs during
the same period be shown in mitigation of the damages suffered from the
loss of profits in consequence of the termination of the contract by the owner. "
When a contractor fails to have certain preliminary work done, thereby
causing delay and preventing the subcontractor from peforming his part of
the work; loss of profits by the subcontractor on work he was not permitted
1 Bait. & O R. Co. V. Stewart (Md.), 29 supra, and 20 So Rep. 502.
All. Rep. 964; Baird v. Mayor. 83 N. Y. ^Masterton v. Brooklyn, 7 Hill (N. Y.)
>54; Richteru Meyer (Ind.), 31 N.E. Rep. 62; Goodrich v. Hubbard, 51 Mich. 63;
582: Cincinnati, etc., Ry. Co. «. Lutes Nash i). Hoxie, 59 Wis 384; Siugleton ®.
(Ind ), 11 N. E. Rep. 784 [1887]. Wilson, 85 Tenn. 344; Rice v. Candle. 71
2 Baird v Mayor, supra. Ga. 605; Joske v. Pleasants (Tex.), 39 S.
"Bait. & O. R. Co. «. Stewart, supra. W. Rep. 586 [1897], contra.
^Tennessee, etc., R. Co. •». Danforth, ^"Nilson v Morse, 52 Wis. 240; hut see
supra, Cincinnati St. L. & C. Ry. Co. v. Lutea
5 Birney v. Wabash, etc., R. Co., 20 Mo. (Ind.). 11 K E. Rep. 784 [1887].
App. 470. " Watson v. Gray's Harb B Co. (Wash.),
^ Wakeman v. Wheeler, etc., Co., 101 N. 28 Pac. Rep. 527; sembie, Hawley v Corey
Y. 205. ' (Utah).33PHC. Rep. 695; and see Cin., L,
'' Sembie, Bait. & O. R. Co. v. Stewart, & St. L. Rv Co. v. Lutes (Ind.), 14 N. E.
supra. Rep. 706 [1888]; but see Sullivan v. McMil-
8 Tennessee & C. R. Co. -». Danforth, laii (Fla.), 19 So. Rep. 340.
§ 696.] CONTRACT STIPULATIONS. 635
to perform on the job may be assessed, but profits which subcontractor
might have made, doing some other work, cannot be considered/
The plaintiff must prove the amount of his loss; he cannot require the
defendant to prove that it would have been less than the contract price nor
less than what he claims.'
When a contract is broken in four particulars at the same time the con-
tractor cannot have a separate cause of action for each breach. If he brings
an action and gets judgment and satisfaction, it is a bar to any other actions
for breaches which had occurred when the first action was brought.^
A bond "for the faithful performance of a contract" is not restricted
by a subsequent condition expressed that the contractor shall faithfully per-
form his contract "during the construction of the works.'* A failure to
begin the work at all constitutes a breach of the contract.*
1 O'Connor v. Smith (Tex.), 19 S. W. W. Rep. 607.
Rep. 168 [1892]. » Coggins v. Bulwinkle, 1 E. D. Smith
« Benner v. Phoenix T. & T. Co. (Sup.), 434 [1852].
30 N. Y. Supp. 290; accorti, Roberts 'o. * City of Goldsboro i>. Moffett (C. C), 49
Minneapolis Th. Mch. Co. (S. D.), 67 N. Fed. Rep. 213.
CHAPTER XXV.
NONPERFORMANCE OF CONTRACT. BREACH OR RESCISSION.
BREACH BY CON^TRACTOR, HIS RIGHTS, LIABILITIES,' AND MEASURE OF RE-
COVERY. SUBSTANTIAL PERFORMANCE AND SPECIFIC PERFORMANCE OF
CONTRACT.
697. Contractor Fails to Perform — His Rights and Liabilities. — When a
contractor has failed to fully perform his contract he cannot, under a strict
interpretation of the contract terms in general use, recover for what he has
done. Payment is usually postponed by the contract until after a complete
performance of all the terms and conditions of the agreement, and frequently
uutil after the engineer shall have certified that the work is, in every par-
ticular, completed according to the contract. By the terms of his agree-
ment, the contractor is bound to render a complete performance of every
contract requirement, however technical or trivial it may be.
To enforce such an agreement would impose the greatest hardships*
upon a class of men who arc now burdened with iniquities, and would give
to the owner and companies having work done, benefits to which tlnw are
in no wise justly entitled. Frequently a technical performance is well-nigh
impossible; it may even have been made so by the act of the owner.'*
The American courts have not been blind to this injustice, and in this
country, if a contractor's failure to perform is excusable, the law implies a
contract on the part of the owner to pay for whatever benefits he has re-
ceived, to prevent unjust enrichment; the measure of recovery being the
amount that the owner has been enriched or benefited."
The law implies such an agreement on the part of the owner only be-
cause the equities of the case require it, and the action should be in general
assumpsit on the implied promise, for an action on the special contract
would be met with a plea of the contractor's breach and failure to porf M-m.*
What was said in the preceding sections applies with equal force here.
' See comments of Lord Campbell, Chief ^Pinches v. Swerlish Luth. ( - 55
Justice of the English court in 1858. as to Conn. 183 ; Ford v. Smith, 25 Ga r.?' ; aud
this element of hardship. Monroe©. Butt, see Hayward v. Leonard, 7 Pirk ("''mss.)
BE. & B. 738 [1858]. 181 ; and see cases 3 Amer. & Eiil^ Enry.
2 Smith V. Brady, 17 N. Y. 173; Nolan Law 920-1, and 29 Amer. & Enc: Ency.
9). Whitney. 88 N. Y. 648 ; Heckmau v. Liw 896-7.
Pinkney, 81 N. Y. 211; Goldsmith v. '^ /S«g Orem ?). Keelty (Md.), 30 Atl Rep.
Hand, 26 Ohio 101. 1030 [18971.
636
§ 690.] CONTRACT STIPULATIONS. 637
Though the distinction may not be made in all jurisdictions; especially
where the code has been established.
There can be no recovery for labor under a contract when not rendered
in conformity to it, unless there has been some acceptance of it, or unless
an exact performance has been waived, or unless the nonconformity is caused
by the owner.' If the contractor has not completed his contract, or brought
himself within its terms by completing the obligations imposed, he should
not bring an action upon the contract to recover. His action should be in
assumpsit, i.e., for work, labor, and material on the general counts. In
an action on the contract he cannot introduce evidence to prove that the
work was done in a manner, nor with materials essentially different from
that specified in the contract, as contractors are required to build substan-
tially according to their contracts, but evidence that the work done as speci-
fied in the contract was properly done and in a workmanlike manner, is
admissible.' If the contractor has alleged full performance, wherein time
was of essence, he cannot show a modification of the contract, nor a waiver
by the owner by way of excuse. Having alleged performance, he cannot
show excuses for nonperformance.'
. The contractor may recover if the works are substantially completed,
though not according to the terms of the contract, even when the agree-
ment is to pay " when the structure is completed." * When a building con-
tract has not been so performed as to justify a recovery thereon, a recovery
in assumpsit on the common counts for the work and materials used will be
permitted only when owner has actually accepted the building. Such ac-
ceptance may be expressed or implied from circumstances, but mere occupa-
tion of the building does not necessarily imply such acceptance.^
698. Contractor must have Made an Honest Effort to Complete his Con-
tract, or He Cannot Recover. — It follows that a right based wholly upon
equitable grounds requires that the contractor come into court with clean
hands and a good conscience, for if he has been guilty of willful departures,
omissions, and breaches of his contract he is not in a position to invoke
equity in his favor. Such a law would afford encouragement to contractors
to break their contracts.
If the contractor has faithfully and honestly tried to perform his con-
tract, or unintentionally or in blissful ignorance, or even knowingly, but for
some good reason, has committed an unimportant breach of his contract, he
has not in equity forfeited his right to invoke the assistance of the courts
1 Andrews©. Portland, 35 Me. 475 [1853]; ^ HigginstJ. Lee. 16 111. 495 [1855] ; Et-
SViarpe v. Johnson, 60 Barb. 144 [1871] ; tintr t-. Dayton, 17 N. Y. Supp. 849.
Sinclair v. Bowles, 9 B. «fe C. 92 ; Sickle ^^^Russell v. Barry, 115 Mass. 300 [1874].
v. Pattison. 14 Wend. 257 ; Wade v. Hay- ^ Bozartli v. Dudley (N. J. Law) 27 Alb.
cock, 25 Pa. St. 382; Morton v Read, 2 L. J. 76 [1882], waw^ ca«escj7^ef ; Elkridge
S. & M. 585 ; Cutler v. Powell, 6 T. R. v. Rowe, 4 Glim. (111.) 91 ; McKinney v.
320 ; Lloyd's Law of Building 35, 36. Springer, 3 Ind. 59 ; Walsh v. Jenvey
* Aid rich v. Wilmarth (S. D.), 54 N. W. (Md.) 36 Atl. Rep. 817.
Rep. 811.
638 ENGINEERING AND ARCHITECTUBAL JURISPRUDENCE. [§ 699.
to do him justice, though he has foregone those rights by the terms of his
contract. He may have a cause of action against the owner and require
him to restore the value of what the owner has been benefited at his ex-
pense.' If the contractor has acted honestly and in good faith substantially
performed the contract,' he may recover in assumpsit.^
If the contractor has voluntarily abandoned the work, he can recover
only the value of work and labor done, measured according to the contract,
and not the contract price, though he may have had the right, under the
contract, to abandon/
699. Contractor's Failure to Perform or Complete must Not have been
Willful nor Obstinate. — If a contractor alleges performance of his contract
and has substantially complied with the same, and has not been guilty of
fraud, or gross negligence, or of obstinate or willful refusal to fulfill his
whole engagement, or of a voluntary or causeless abandonment of the work,
he is entitled to recover the balance due him, subject to deduction for dam-
ages for imperfection and deficiencies in the work.^
When the contract is to pay when *' this contract is fully performed and
fulfilled," and the company takes forcible possession and opens the struc-
ture for use and tolls, and the contractor acting honestly, and intending to
fulfill his contract, performs it substantially, but fails in some comparatively
unimportant particulars, the owner will not be permitted to enjoy the fruits
of such imperfect performance without paying a fair compensation accord-
ing to the contract, receiving a credit for any loss or inconvenience suffered."
Taking possession and turning the structure to the purpose intended by the
party for whom it was constructed, shows it was substantially constructed.
^0 mere imperfections or omissions, which does not virtually effect its use-
fulness can be interposed to prevent recovery, subject to deduction of dam-
ages consequent to the imperfections complained of."
If the contractor has willfully refused or neglected without just cause
to perform certain conditions and requirements of his contract, the law is
generally that he cannot recover.'' The continued failure on a contractor's
^ 2 Keener'. s Cases on Qwasz-Conti-acts Atl. Rep, 136: O'Dea v. City of Winona
153,173; Sinclair «. Tallmadge, 35 Barb. (Minn.), 41 Minn. 424 [1889J ; Smith 'd.
602 [1861] ; School Dist. -y. Lund', 57 Kans. 1st Cong't'l Ch., 8 Pick. 178 ; Hayden v.
731 ; Aldrich v. Wilmarth (S. D.). 54 N. Madison. 7 Green 78 ; Crouch t). Gulmann,
W. Rep. 811 [1893] ; Wohlreich v. Fet- 134 N. Y. 4.-).
tretch, 21 N. Y. St Reptr. 56 [1889] ; ac- ^ Castagiiio v Balletta (Cal.) 21 Pac.
cord, Brady v. New York (N. Y. App.), 30 Rep. 1097 [1889].
N. E. Rep. 757 ; ^Etna Iron & S. Wks. v. ^ Power^s v. Walker (Ky.), 39 S. W. Rep.
Kossuth Co., 79 Iowa 40 : Danyille Bdge. 256.
Co. V. Pomeroy, etc., 15 Pa. St. 151 [1850]; ^ Danville Bdge. Co. v. Pomeroy, 15 Pa.
Nolan v. Whitney, 88 N. Y. 648 ; and see St. 151 [1850].
Miller x. Benjamin (Sup.), 21 N. Y. Supp. * Danville Bdge. Co. v. Pomeroy, etc.,
1116. 15 Pa. St. 151 [1850] ; Mitchell v. Wiscotta
* Stecker v. Overpeck, 127 Pa St. 4^6 Land Co.. 3 Iowa 209 ; Emerson v Cogs-
1889
Smith V. District. 20 Conn. 312 well, 16 Me. 77; Davis v. Fish. 1 G. Gr.
1850] ;Quinn ■». United States, 99 U S. 30 (Iowa) 406 ; but see Hartupee v. Pittsburg,
1878] ; semhle, Valk v. McKeize, 1<5 N. Y. 97 Pa. St. 107 [1881].
3upp, 741 ; White v. School Dls„. (Pa.), 28 ' 2 Keener's Cases on Qwas^Contracts,
§ 700.] CONTRACT STIPULAilONS. 639
part to complete a building in the time specified in the contract is a con-
tinuous breach of the contract, of which the owner may avail himself at any
time by terminating the contract.* Abandonment of a job in November
without justification, and no offer to complete it until the following spring,
has been held such neglect as to forfeit any rights to recover under the con-
tract." It seems that the contractor is expected to show that his failure to
perform, fully, was not intentional.'
In England contractors are held strictly to the terms of their agree-
ments, and no recovery can be had for the benefits conferred as on a quantum
met'uit when there has been an unintentional breach of an express condition
(provision) of a contract, and this is one of very many illustrations of the
leniency of the American courts and the disposition to alleviate suffering
from hardships.* The New York and Maryland courts have shown a
fickle disposition in* requiring building contracts to be completely performed.
Some cases hold to strict requirements for a substantial performance,
while others decided by the same courts have shown great leniency. This
is especially true of the courts of New York.'
700. Contractor's Recovery when there has Been a Substantial Perform-
ance.*— One who has begun the performance of work under a special con-
tract, by which he is bound to finish it, cannot abandon the work without
the consent or fault of his employer, and sue and recover for the value of
the work which he has performed ; ' but where the work is actually per-
formed, though not in exact conformity with the contract in immaterial
particulars, or with variations assented to by the employer, or where the
employer accepts the work as, and for, a complete performance of the con-
tract, the contractor may recover.' The principle above stated is supported
by many cases.® Even though the contract authorizes the commissioner of
public works to designate when the work should commence, suspend work,
pp. 146, 148; Hollister v. Mott (K Y. ' Wyckoff v. Taylor (Sup.), 43 N. Y.
App.), 29 N" E. Rep. 1103 ; Wade v. Hay- Supp. 31.
^ock, 35 Pii. St. 383; semble, Holmes v. ' Scheible «). Klein, 89 Mich. 376.
Chaniers Oil Co. (Pa.) 31 Atl. Rep. 331 ^ Weeks v. O'Brien (Super.), 13 N. Y.
[1891] ; Sinclair v. Tallmadge, 35 Barb. Supp. T20.
602 ; Danville B(\s;e. Co. v. Pomeroy, 15 • ^ Keener's Cases on Quasi-Contmcis 131,
Pa. St. 151 [1850] ; Reed d. Board, 4 N. 135, 139. English Cases; Monroe v. Butt,
Y. 34 ; Crane v. Kimbel. 61 N. Y. 645 8 E & B. 738 [1858], cases cited.
[1875] ; Faxon v Mansfield, 3 Mass. 147 ; ^ 2 Keener's Cases 165 ; Lloyd's Law of
accord. Stark v. Parker. 3 Pick. 367 ; Jen- Building 37; Presby. Ch. v. Hoope's, etc.,
nings V. Camp. 13 Johns. 94 ; McMiller v. Co., 66 Md. 598 [1887] ; s. c, 7 Cent. Rep.
Yanderlip, 13 Johns. 165; Adams v. Boston 432 ; Cronin v. Tebo 34 N. Y. Supp. 644 ;
Iron Co., 10 Gray 495 ; Lantry v. Parks, 8 Hollist(!r v. Mott (N. Y. App.), 29 N. E.
Cow. 63; Mollt). Foery, 43 Hun 476; Rep. 1103 ; accord, Ala. Gold Life Ins. Co.
Blythe v. Poultney, 81 Cal. 233 ; Sinclair v. Garmany, 74 Ga. 51.
«. Bowles, 9 B. & C. 93 ; semble, Elliott v. « Cases 39 Amer. &Eng. Ency. Law 910.
Caldwell, 48 Minn. 357 [1890] ; Mammond ' Wliite v. Hewitt, 1 E. D. Smith 895
v. Miller, 3 Mackey 145 ; contra, Britton v. [1852].
Turner, 6 N. H. 481 [1834] ; Davis v. Bar- » Dubois v. The Del. & Hud. Canal Co.,
Tington, 30 N. H. 517. 529 ; 29 Amer. & 4 Wend. 385 ; Heckman v. Pinkney, 81 N.
Eng. Ency. Law 896, 910. Y. 311 ; Glaucus v. Black, 50 N. Y. 145 ;
* See Sees. 441-443, supra.
640 ENOINEERINQ AND ARCHITECTUIiAL JURISPRUDENCE. [§ TOL
order it to be begun again, consent to its being sublet or assigned, or declare
the contract null, and re-award it, and though the contractor has covenanted
to complete the work to the satisfaction of the commissioner, and in sub-
stantial accordance with the specifications and plan, a literal compliance
with the specifications and plan is not required.*
Another test applied in many cases to determine whether there was
such a substantial performance as will entitle the contractor to recover upon
the contract is whether the structure or completed works is reasonably
adapted to or will answer the purposes for which it was intended.^ If
defects exist throughout the work and are so numerous that the objects
sought by the contract are not attained or accomplished, then there can be
no recovery.^
It is not always necessary that the contractor shall have committed an
open breach of his contract. If he voluntarily disables himself from per-
forming specifically his contract he becomes at once liable in damages.* If
he has by his own acts put it out of his power to perform his part of the
agreement, he cannot maintain a bill for specific performance.'^
701. Acceptance of Work or of Structure by Owner — Waiver of Strict
Performance.* — If the owner has accepted or taken possession and put the
structure to the use or the service for which it was intended, that, too,
forms an element in determining a substantial performance and is evidence
thereof." The making of payments by the owner without objection or pro-
test, after having taken possession of works, has an important bearing upon
the question whether or not the owner has waived a complete performance.^
The owner may, by accepting the building without objection and expressing
his satisfaction with the work, be estopped from asserting a noncompliance
Jewel v.- Schroeppel, 4 Cow. 564 ; Feeter Atl. Rep 491 ; Crookshank v. Mallory, 2
V. Heath, 11 Wend. 484; Woodward «. G. Gr. (la.) 257; aemhle, Leeds v. Little
Fuller, 80 N. Y. 312; Nolau v. Whitney, (Minn.), 44 K W. Rep. 309.
88 N. Y. 648 ; Linningdale v. Livinoston, ^ Wohlreich t?. Fettretch, 21 N. Y. St.
10 J. li. 36 ; Paige v. Oa, 5 Denio 406, Reptr. 56 [1880].
and cises cited; Boteler v. Rov, 40 Mo. ^ goijeg ^, Sachs, "3 K W. Rep. 862 r
App 238; iMeh'urin v Stone, 37 Ohio St. Robson v. Drummond, 2 B. & Ad. 303;.
55 ; Jones v. Judd, 4 Comfit. 411 ; Bronmel Planche v. Colbnrn, 8 Bing. 14.
«. Rayner (Md.), 11 Atl. Rep. 833 [1887] ; *> Wollens-ik v. Britrgs (111.), 10 N. E
Jenninsrs v. Wilier (Tex.), 32 S. W. Rep. Rep. 23 [1887].
24 ; 29 Amer. & Ensj. Ency. Law 891- « Holmes v. Chartiers 0"1 Co. (Pa.),
Phelps v. Sheldon, 13 Pick. 50; supra; White v. School Dist. (Pa.), 28-
Smith '«. Lowell M. H.. 8 Pick. 181 ; Dixon Atl. Rep. 136 ; Pinches d. Swedisli Church
V. Gravely (N. C), 23 S. E. Rep. 39 ; Ford (Conn.), supra; McPhail v. Board of
V. Smith, 25 Ga. 675 ; Castagnino v. Bal- Com'rs (N. C), 25 S. E. Rep. 958 ; Davis
letta, 21 Cal. 1097 ; ,0'Connors v. Hurley, v. Badders (Ala.), 10 So. Rep. 422 ; cases
147 Mass. 145; Ellis v. Lane, 85 Pa. St. 29 Amer. & Eng. Ency. Liw 899. 900.
265 ; Cullen v. Sears, 112 Mass. 299. "^ Wildey v. School Dist., 25 Miclj 419 ;
^ Brady «. City of New York (N. Y. and see Flannery v. Rohrmayer, 46 Conn.
App.), 30 N. E. Rep. 757. 558 ; Parton v. Stewart, 2 A'ik. (Vt ) 417 ;
2 Pinches v. Swedish Church. 10 Atl. Lucas v. Godwin, 3 Bing. (N. C.) 737;
Rep. 264; Holmes v Cliartiers Oil Co , 138 Boteler 'd. Roy, 40 Mo. App. 234 ; Taylor
Pa. St. 546 ; Gallager v. Sharpless (Pa.), 19 v. Williams, 6 Wis. 363.
- * aS^-c Sees. 417, supra, and 721 and 726, infra.
§ 701.] CONTRACT STIPULATIONS. 641
with the contract.* The act of a city forcibly taking possession of water
works which were in a substantially completed condition, and the subsequent
successful use of the same for the purposes for which they were intended,
did not relieve the contractor from proving that the quality of the materials
furnished was in accordance with the contract — in this case of the best
quality, of a certain composition and tensile strength. As against public
interests such as those of a municipal corporation, an implied waiver of the
terms of a contract will not be favored.''
If work has been accepted by owner or he has waived his right to a
strict performance, it seems the contractor may recover as if he had fully
completed his contract;' but he is liable for damages that the owner has
sustained in consequence of delay" or of the failure of contractor to com-
plete his contract,^ but not when he has accepted the work and paid therefor
in full without objection."
Use, occupation, and appropriation of works when they are a part of the
realty to which they are attached do not of themselves amount to an accept-
ance,' nor do they amount to a waiver of a substantial performance.^ The
mere fact that the structure remains on the land and that the contractor
cannot remove it, and that the owner enjoys the benefit of it, he having no
option to reject it, is not such an acceptance as will imply a contract to pay
for it — i. e., the contract price.' The act of levying an assessment by a com-
pany on its members for the purpose of paying for the work does not of
itself constitute an acceptance of the work from the contractor.*" It
seems that such acceptance, appropriation, and use may be a possession
under claim of title and adverse to the contractor, so as to set the statute of
limitations in motion." It is not such an acceptance as imports a new prom-
ise to pay for them; but some positive acquiescence in the incomplete or
existing state of the building is necessary to render the owner liable to pay
according to measure and value.^"
Part payment on a contract for work is an acquiescence in what has
^ Strome v. Lyon (Mich.) 68 N. W. Rep. Ballentine, 56 Mo. 530 ; Reed v. Board, 4
983 N. Y. 24 ; Fitzgerald v. La Porte (Ark.). 40
« Hartupee v. Pittsburgh, 97 Pa. St. 107 S. W. Rep. 261 [1897].
[1881.] ^Elliott^. Caldwell, 43 Minn. 357 [1890];
» Morrison v. Cummintrs. 26 Vt. 486 Presby. Ch. v. Hoopes, etc., Co., 66 Md.
[1854] ; Beswick v. Piatt, 140 Pa. St. 28. 598 ; Curtis v. Hoyt, 19 Conn. 165 ; cases,
Cartwright v. Mt. Vernon (Sup.), 3 N. Y. 29 Amer. &Eng. Ency. Law 900-1.
Supp. 296. " Gilliam v. Brown (Cal.), 48 Pac. Rep.
* trrnell V. Cottingham, 73 111. 161 [1874], 486 [1897].
5 Trowbridge v. Barrett, 30 Wis. 661 ; " Texas W. & G. Co. v. Cleburn (Tex.),
Mitch-11 V. Land Co. 3 Iowa 209 ; Adlard 21 S. W. Rep. 393.
v. Mnldoon, 45 111. 193 ; Wildey v. Frac- ^^ Burn v. Miller, 4 Taunt. 745 ; Lucas®,
tional School, 25 Mich. 419. Godwin, 3 Bing. N". C 737 ; Monroe v.
« De Lambre v. Williams, 36 La. Ann. Butts, 8 E. &B. 738 [1858] ; Ford v. Smith,
330. 25 Ga. 675 ; Estep v. Feuton, 66 111. 467 ;
' Morrison v. Cummings, supra. Leakes' Digest of Contracts, pp. 68,
8 Smith V. Brady, 17 N. Y. 173 [1858] ; 69, 70 ; Blythe v. PouUiiey, 31 Cal. 233 ;
Mohney v. Reed, 40 Mo. App. 199 ; Gove Walli.s v. Smith, L. R. 21 Ch. D. 243;
V. Island City Co., 16 Oreg. 93 ; Yates v. Wildey v. Fractional School, 25 Mich. 419;
642 ENQINBEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 701.
been done only to that extent/ and then only as to defects and insufficiencies
of which he has knowledge/* Kegular partial . payments on account of
contract for work not fully completed have been held not to amount to an
acceptance of what has been done/
Tlierefore proof that the owner visited the building and called the con-
tractor's attention to certain defects therein, and, on being asked if there
was anything else wrong, failed to say anything, does not constitute a waiver
on his part of defects consisting of the use of doors of one-eighth of an inch
less in thickness than required by the contract, inferior grade of tin and
boards for roofing, and other defects not apparent." A defect in work done
on a public building is not waived where the commissioner of public works
takes possession from necessity, but expressly states that this is done with-
out prejudice to any rights against the contractor, and refuses to give a
certificate that the work is satisfactory/ If the contractor will recover he
must prove a substantial performance on his part or a waiver of performance
on the part of the owner. Without proof of a waiver by owner there must
be a substantial performance." The waiver of a substantial performance
must be pleaded and proven.''
It is well settled that a substantial performance requires that the devia-
tions and omissions must be slight and unimportant/ Ornamentation has
been held a matter of substance and variations or omissions from the speci-
fications have been held to amount to a breach of the contract." If the
departures and omissions are so substantial that they cannot be remedied,
or that an allowance out of the contract price will not give the owner essen-
tially what he contracted for,'" or give him full indemnity for deviations and
omissions" there can be no recovery. An erection of a structure, with col-
hut see McClay v. Hedge, 18 la. 66, and '' Winona v. Minn. Constr'n Co., 27
Pixler 00. Nichols, 8 Li. 106, semble contra. Minn. 415; see other cases, Llovd's Law of
' Morrison «.Cummings, 26 Vt. 486 [1854]; Building 53.
semhle. Smith v. Gugerly, 4 Barb. 614 ; ^ Fauble & S. «?. Davis, 48 Iowa 463
Lindsay v. Gordon, 13 Me. 60. [1878] ; Aldrich v. Wilraarth (S. D.), 54 K
'U^orf «j. Lull, 70 111 420 [1873] ; Veazie W. Hep. 811; Hayward v. Leonard, 7
V. Bangor, 51 Me 509 ; Andrews v. Port- Pick. 187 ; Cullen «. Sears. 112 Mass. 299 ;
land, 35 Me. 475 [1853] ; and see City of Freeman c. Aylor, 1 Mo. App. Reptr. 582;
Nashville v. Sullieiland (Tenn.), 29 S. W. Wohlreich «. Fettretch (N. Y.), 21 N. Y.
Rep. 2-,^8. St. Reptr. 56 [1889]; Sinclair v. Tullmadge,
» Moulton V McOwen, 103 Mass. 587 ; 35 Barb. 602 ; semble, Leeds i). Little
Bond zj. Carpenter (li. I.), 8 Atl. iiep. 539 ; (Minn.), 44 N. W. Rep. 309; Lewis v.
Katz V. Bedford, 77 Cal. 319; Nollman v. Yaii^el, 77 Hun ^N. Y.) 337 ; Highton v.
Evensou (N. D ) 65 N. W. Rep. 686 ; An- Dessau, 19 N. Y. Supp. 395 ; Nolan «.
drews -y. Portland. 35 Me. 472. Whitney, 88 N. Y. 648 ; Woodward ?>.
* Eiiton V. Glad well (Mich.), 66 N. W. Fuller, 8 N. Y. 312.
Rep. 598. 9 McEntyre v. Tucker, 5 Misc. Rep.
6 MacKnight F. Stone Co. v. New York (Com. PI. N. Y.) 228.
(Sup.), 43 N. Y. Supp. 139. lo Elliott v. Caldwell, 43 Minn. 357
« Sinclair v. Tallmadge, 35 Barbour 602 [1890] ; Pullman i). Corning, 14 Barb. 174 ;
1861J ; Gustaveson«? McGay, 12 Daly 423 Taft v. Montague, 14 Mass. 282.
1884] ; Heckman v. Pinkuey, 81 N. Y. 211 '^ Wohlrich^ tj. Fettretch, 21 N. Y. St.
1880]. Reptr. 56 [1889].
. * ^ee Sees. 467, 468, «w;?m.
§ 702.] CONTRACT STIPULATIONS. 643
umns substantially like the ones the contract required,' or that was ''equal
in strength, value and convenience," or that will as well answer the purpose
desired, is not a performance of a contract to erect according to certain plans
and specifications,^ or of specific dimensions.^* Though the structure did
cost more and was better adapted to tlie purposes for which it was intended,
it cannot make the erection of a' mill 78X100 feet a substantial performance
of a contract to build a mill 50x150 feet."
To avoid a waiver of a strict performance and a full completion of the
contract, the following clause is sometimes recommended to be inserted in
the contract :
"It is further agreed between the parties that no payment of money
under this contract, nor any acceptance or possession taken of the
work done 'by the contractors shall be evidence of the performance of
this contract or be construed as a waiver of any of its provisions by the
owner ; nor shall any waiver of any breach of this contract be held to
be a waiver of any other or subsequent breach." ^
702. What will Be a Substantial Performance. — A review of a large num-
ber of decisions will give some impression of what is a substantial perform-
ance. The question is not one of law but one of fact for the jury, which
determines whether the defects and omissions are technical and unimpor-
tant, whether there has been a substantial performance, and also whether
the departures and omissions were intentional and willful." The jury may
decide whether the work was substantially performed in good faith, and
whether the contractor was justified in abandoning or stopping the work,
and whether there had been a material variation without the consent of the
owner.' The determination of the question depends, therefore, upon the
make-up of the jury as well as the circumstances and conditions attending
each case.*
It has been held that a contractor was not prevented from recovering,
under his contract, the contract price less the damages resulting from his
failure to complete, when the ceiling of a church was two feet too low, the
windows too short and the seats too narrow, the edifice being reasonably
» Lynch ®, Paris Lumber Co. (Tex.), U « Phillips «. Gallant. 62 (N. Y. 256
S. W. Rep. 701 [1890]. [1875]; Gibbons v. Russell, 13 N. Y. Supp.
2 Fauble & S. v. Davis, 48 Iowa 463 879 ; Clapp v. Thayer, 112 Mass. 296
r.l87.S] ; Winona v. Minn. R. Constr'n Co., [1873] ; Rush v Wagner 12 N. Y. Supp.
27 Minn. 415; MacKnight Stone Co. -». 2; Bracco v. Tighe, 27 K Y. Supp. 34;
New York (Sup.), 43 K Y. Supp. 139. • Bousxhton «. Smith, 22 N. Y. Supp. 148;
^ Gillespie Tool Co. v. Wilson (Pa.), 16 Murphy « Stickley-Simonds Co. (Sup.),
AM. Rep. 36 [1889]. 31 N. Y. Supp 295 ; Glnucu.^ v. Black 50
4 Swain v. Seamens, 9 Wall. (U. S.) 254 ; N. Y. 145 [1872] ; see also Muth v. Frost,
Hill V. Featherstonhaugh. 7 Bing. 569 ; 75 Wis. 166.
Times F. Assur. Co. v. "Hawke. 28 L. J. '' Morton «. Harrison, 52 N. Y. Supr. Ct.
Ex. 317 ; Farnsworth v. Garrard, 1 Camp. 305 [1885].
38, 8 But see Cutler v. Dix (Vt.) 31 Atl. Rep.
^ Clark's Architect, etc.. Before the Law. 780.
* See Sees. 256, 257, 467, and 468. supi^a.
644 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 702.
adapted * to the purposes for which it was built; nor when the roof of an
addition to a house was five inches too low, the mistake not affecting its ap-
pearance materially; ' nor when inferior materials have been used in a house
and the work has not been performed in the manner agreed ; " nor when the
plastered walls were cracked from settling.* Walls of a building have been
held completed and a partial payment due, when they were ready to receive
the roof, although they were not covered with a mastic, in accordance with
the complete design of the building.^
A building in which the floors are not laid, with portions of it exposed to
the weather, and proof that some of the work done had to be done over,
was held 7iot substantially completed.' A payment due " when the plaster-
ing is finished " is not recoverable as under a substantial performance when
the parlor and hall have not had their last coat of plaster and the stairs,
under which there should have been plastering, are not erected/ Pine sub-
sills were held not to satisfy a contract which specified oak sub-sills in a
sidewalk;^ nor a floor that leaks, one that was required to be water-tight.*
The omission of a few locks, door-knobs, some door-steps, and a small
amount of plastering in a house in New York, was held not a substantial
performance of a contract to complete a partly finished building, the cost
being $267.'°
A barn constructed without collar-beams to join together the purlin -
posts as required by the plans and specifications, in consequence of which
'Hhe sides spread and the roof sank, rendering the barn unsightly and
dangerous," was held not a substantial performance."
The use of a different mortar from that required by the contract ^' will not
prevent a recovery by the contractor.
While tlie determination of the question of a substantial performance is
for the jury, yet a finding of damages by a jury or referee may be so gross as
to authorize a holding by the court as a matter of law that the contract had
not been substantially performed." Thus a finding by a referee that a build-
' Pinches v. Swedish Church (Conn.), 438 [1885].
10 Atl. Rep. 264. ^ Sherwood r. Hontman (N. Y.), 73
2 Oberlies v. Bullinger, 132 N. Y. 598 Hun 544; Weeks v. O'Brien (Super.), 12
3 Marsh v. Richards, 29 Mo. 99 [1859]; N. Y. Supp. 720.
'and Missouri cases cited; Golden Gate ^o Smith v Shehering Arms, 85 N. Y.
Xumb. Co. V. Sahrbacher (Cal.), 38 Pac. Supp. 62: Zimmerman v. Jourgensen
Rep. 635. (Sup.), 24 KY. Supp. 170; and see Mix&ievB
4 Waish u. Campbell (Sup ) 37 N. Y. v. Houck, 39 Midi. 431.
f?upp. 362. ^^ Ketchum v. Herringtou, 18 N. Y.
^ W< rcester Med. Inst. ■». Harding, 11 Supp. 429 [1892]; accord, Andersen v.
Cusli. (Mmss.) 285; see also Woodward v. Petereit (Sup.), 38 N. Y. Supp. 741; see
Fuller, 80 N Y. 312; Johnson v. DePeyster, also Oi^erlies v. Bullinger (Sup.), 11 N. Y.
no N. Y. 666; Bixby v. Williamson, 25 Supp. 264; Cahill v. Heuser (Sup.). :^7 K
Minn. 481. Y. Supp. 736; Smith v. Brady, 17 N. Y.
" Zimmerman v. Jourgensen (Sup.), 24 173; Glancus v. Black, 50 N. Y. 146;
IT. Y. Supp 170. Flannery v. Sahagian (Sup.). 31 N. Y.
' Van Clief v. Van Vechten, 130 K Y. Snpp. 360.
-571. ' ^2 LigL^et V. Smith, 3 Watts (Pa.) 831.
8 Denton V. City of Atkinson, 34 Kan. ^^ Phillip v. Gallant, 62 N.Y. 256 [1875];
§ 703.] CONTRACT STIPULATIONS. 645
ing was constructec' " substantially in accordance with the contract and
specifications," when important members of the framing had been omitted
which rendered the structure unsightly and dangerous, and when $750 would
be required to remedy the departure, the contract price being $2500, was held
ijioonsistant with the facts and not sufficient to support a recovery of the
contract price and extras, less the damages for defective construction.* It is
only technical, inadvertent, or unimportant omissions or defects which may
be disregarded in an action on a building contract," and it may be safely
said that no case has ever gone so far as to. hold that defects which amount
in value to one-third of the contract price, and which render the building
unsightly and even unsafe for occupation, could be so disregarded.' The
deviation may be so gross and reprehensible that the contractor cannot
recover anything at all for his work. ^
It has been held not a substantial performance when the ratio of the ex-
penses of making the work conform to the agreement to the contract price was
as $267 to $3400; * a ratio of $75 to $865 has been held not inconsistent with
a finding of substantial performance; " * defects of $275 on a $7000 job was
held not inconsistent with substantial performance where contractor tried to
fulfill his contract.' A ratio of $656 for defects to a contract price of $6000,'
or of $13.80 to $390,' or of $150 to $2100,'' or of $200 to $11,700, '^ or of only
2 per cent.," or of 6 per cent.''^ of contract price, did not prevent the con-
tractor from recovering. A ratio of $600 to $3500 was held to show a fail-
ure to perform substantially."
A defect in the construction of a building may be a substantial defect,
though, it does not run through the entire building, and even though it can
be remedied without disturbing or interfering with the main building.'"
703. Rule or Measure of Recovery — When Contractor Is in Default. —
The rules or measures of recovery have been variously stated by differ-
Rose V. O'Riley, 111 Mass. 57 [1872]; » x)'^u(^re r. Zimmerman (Sup.), 39 N.
Higsler V. Owen, 61 Mo. 270, and cases Y. Supp. 1086.
cited. 9 Monteverde v. Queens Co. , 78 Hun 267.
' Ketchum v. Herrington, 18 N. Y. lo Nolan v. Whitney, 88 N. Y. 648.
Supp. 429 [1892]. » Charles^. Halleck Lumber Co. (Colo.),
« Sinclair v. Tallmadge, 35 Barb. 602. 43 Pac. Rep. 548.
' Haysler v. Owen (Mo.), 61 Mo. 270, ^^ Murphy v. Stickley-Simonds Co., 31
<ind cases cited; and see Bozarth ?j. Dudley, N. Y. Supp. 295.
15 Vroom (N. J.) 304 [1882], and many ^^ Flaherty v. Miner, 123 N. Y. 383.
cases reviewed. i4 Oberlies v. Bullinger, 27 N. Y. Supp.
4 Smith «. Sheltering Arms, 35 N. Y. 19; and see Boughton v. Smith, 142 N. Y.
Supp. 62. 674. For substantial performance and con-
s
Phillips V, Gallant, 62 N. Y. 256 struction of terms used in well-drilling
[1875] cases, see Littrell v. Wilcox, 11 Mont. 77;
« Valk V. McKeize, 16 N. Y. Supp. 741 American Well Works v. Rivers, ;!6 Fed.
[1891], Rep. 880; Waggoner v. Stocks, 41 111.
' Cronch v. Gutman, 134 N. Y. 45 affirm- App. 151; Book v. New Castle W.N. Co
ing 10 N. Y. Supp. 275; Follet, C. J., Vann, 151 Pa. St. 499; Madden v. Oestrich. 46
and Landon, dissenting. The owner was Minn 538; Bohrer v. Stumpf, 31 111. App.
-credited with only $439 amount expended 139; Bennett v. Tutzel, 34 111. App. 295-
by him to remedy defects. Colburn v. Wescott, 36 111. App. 347;
* See also Sees. 441-442, supra.
646 ENOINEBRINO AND ARCHITECTURAL JURISPRUDENCE. [§ 703.
ent courts, several of which are the following : If the work has not
been performed pursuant to the contract, but there has been a substantial
performance, the contractor may recover for it, upon a quantum meruit^
as much as it is worth to the owner.' In Missouri the contractor may-
recover the reasonable value of the work done, as when inferior materials
have been used and the work has not been performed in the manner
agreed.'
It is submitted that any of the foregoing rules for determining the
amount of recovery that the contractor is entitled to, which do not make
the contract price the basis of an estimate of the value of the work done, are
faulty, for the actual or market value of the part performance of the con-
tract might exceed the contract price aJgreed upon for the whole work. If
those rules are adopted, due regard must be had for the contract price in
determining the reasonable vahie of the work d-one. It has therefore been
held that in an action of assumpsit for work done under a special con-
tract, no breach being charged to the owner, the contractor cannot recover
more than the contract price;* lie may recover such sum as the labor and
services are worth, not exceeding the contract price.^ Under IMS rule the
real worth of the work might be all out of proportion to the contract prices,
the value of one-half of the work might be equal to two-thirds of the con-
tract price, and vice versa.^
The owner has a right to a house as good as that which the contractor
agreed to furnish, and at the price agreed upon, and any rule which does
not leave him as well off as he would have been had the contract been fully
performed is a faulty rule/ Many rules have been adopted to this end in
different courts, which may have been justified in the particular case in
which they were applied, but which cannot be applied generally.
A common rule is one that limits the contractor's recovery to the con-
tract price less the reasonable cost of completing the work according to the
contract or making it conform thereto," the difference between the value of
the work as it is delivered over to the owner and what it will cost to com-
Genni d. Hahn, 82 Wis. 92; Blum v. Edge. Co. •». Amer. I. Edge. Co., 83Pa. St.
Brown (Tex.), 33 S. W. Rep. 145. 517; Christie Mfg. Co. v. Travers Bros. Co.
1 Addison on Contracts 409; Chitty on (Com. Pl.X 35 N. Y. Supp. 1079.
Contrncts 826; Greenleaf on Evidence, § * Atkins ®. Barnstable Co., 97 Mass. 428;
104, 79 111. 181, 24 111. 262; contra, Cohn Becker «. Hecker, 9 Ind. 497; Bishop v.
V. Plummer(Wis.), 60 N. W. Rep. 1000. Price, 24 Wis. 480: Estep v. Fenton, 66
2 Morris V. Cummings, 26 Vt. 486 [1854]. 111.467; Britton v. Turner, 6 N. H. 481;
3 Marsh v. Richards, 29 Mo. 99 [1859]; Lloj-d's Law of Building 37. and Massa-
Yeates'B. Ballentine, 56 Mo. 530 [1874], rtTitZ cliuseits cases cited, and see City of Slier-
cases cited, and cases collected in Shepard's man v. Conner (Tex.), 25 S. W. Rep. 321.
Marginal Citations, aw(^«<3e 97 Mo. 371, and ^Accord, Walsh v. Jenvey (Md.), 36
37 Mo. 429; many cases in 2^ Kmev. &Eng. Atl. Rep. 817 [1897].
Ency. Law 899; Chapel v. Hickes, 2 C. & ' Kidd v. McCorraick, 83 K Y. 391
M. 214; May r. Menton (City Ct.), 41 N. [1881].
Y. Sup. 650. 8 Phelps V. Beebe (Mich.) 39 K W. Rep.
4 Williams «. Chicago, S. F. & C. Ry. 761 [1888]; Walworth tJ. Finnegan. 33 Ark.
Co. (Mo), 20 S. W. Rej). 631; Atkins v. 751; Gonzales v. McHugh, 21 Tex. 259;
Co. of Barnstable, 97 Mass. 428; Monacacy Haysler v. Owen, 61 Mo. 270 [1875]; An-
§ 703.] CONTRACT STIPULATIONS. 647
plete it in strict conformity with contract.' Another court found this rule
difficult to apply where the expense of making the work conform to the
contract was very great, and quite out of proportion to the injury suffered
by the owner. It is very easy to imagine some trifling defect, as in the
foundations, that would require great expense to make conform to the
original plan. Therefore the court held that in such a case, if the structure
erected answered the purposes for which it was intended, the rule should
be modified so as to allow a reduction of the contract price by an amount
equal to the diminution in value of the structure by reason of the deviations
and omissions."
An Ohio court divided the work into two classes, and held that as to un-
finished work, the contractor might recover the balance due on the contract
less such sums as it would require to complete the unfinished work; and
that as to deviations made during the progress of the work by consent of
both parties, the contractor could recover at contract prices less the differ-
ence in the value of the parts so constructed and their value as the
contract required them to be made.' A Nebraska case makes the
measure of damages which the owner has suffeied the difference bctweien
the value of the works as constructed and as contracted for.*
The rule of recovery which has had by far the most general adoption in
this country gives to the contractor the contract price less the damage
which the owner has suffered or has been caused by imperfections and
omissions not willfully made;^ or as another case puts it, "the contract
price less the damages resulting from breach," and though the work has
derson v. Nordstrom (Minn.), 61 K W. Leahv (Mich ), 69 N. W. Rep. 76; accord.
Rep. 1132; Kocher v. Maybery (Tex.). 39 Gallagher t\ Sharpless (Pa.), 19 Atl. Rep.
S. W. Rep. 604 [1897]; Mills v. Paul (Tex.), 491 ; ^tna Iron & S. Wks. v. Kossulh Co.,
30 S. W. Rep. 558. 79 Iowa 40, and see also Blakeslee v. Holt,
1 Sticker v. Overpeck. 127 Pm. St. 446 42 Conn. 226; Chapel v. Hickes, 2C. «fcM.
[1889]; Wells v. Bd of Ed. 78 Mich. 260; 214; Thornton v. Place. IM. &R. 218; but
Bella V. Ottenberg, 6 Mackey (D. C), 348; see Ellis v. Hamlen, 3 Taunt. 52; Sinclair
Scofield V. Graw, 63 Vt. 283; Rector v. i). Bowles, 9 B. & C. 92; Wooten u Read.
McD -rmott (Ark.). 13 S. W. Rep. 334 2 Sm. & M. (Miss.) 585; Hilm v. Wilson, 4
[1890]: 29 Amer. & Eng. Ency. Law 898. Mo. 41; White v. Oliver, 36 Me. 95; Smith
2 Pinches v. Swedish Church, 55 Conn. v. First Cong.. 8 Pick. (Mass.) 178; Taft v.
183 [1887]; see also Heckman v. Pinkney, Moritasrue. 14Mass. 282; Olmstead^. Beale,
81 K Y. 213, and White v. Oliver, 36 19 Pick. (Mass.) 528; Snow v. Ware, 13
Me. 92. Mete. (Mass.) 42; Lord v. Wheeler, 1 Gray
^ Goldsmith v. Hand (Ohio), 3 Am. Law (Mass ) 282; Hayden v. Madison, 7 Greene
Times 93 [1876]; but see Estep v. Fenton, (Me.) 76; Jennings v. Camp, 13 Johns. (N.
66 111. 467, and see Hunt v. Elliott, 77 Cal. Y.) 94; Kettle v. Harvey, 21 Vt. 301; Burn
588. V. Miller, 4 Taunt. 745; Gastlin r. Weeks
4 White «. McLaren (Neb.), 24 N. E Rep. (Ind. App.), 28 N. E. Rep. 331 [1891];
911 [1890]; Jennings v. Wilier (Tex.), 32 Oreni «. Keelty (Md.), 36 Atl. Rop. 1030
S. W. Rep. 24. [1897]; Ibers v. O'Donnell. 25 Mo. App.
5 Leeds ■«. Little (Minn.), 44 N. W. Rep. 120; Gregg??. Dunn, 38 Mo. App. 283;
309; McKenzie v. Decker, 94 N. Y. 650; Bozarth v. Dudley, 15 Vroom 304; Bush
Aldrich v. Wilmarth (S. D.), 54 N. W. ■«. Jones, 2Tenn. Ch. 190; MonacacyBdge.
Rep. 811; White?). School Dist. (Pa.), 28 Co. v. American I. Bdge. Co.. 83 Pa.
Atl. Rep. 1^6; Hayward v. Leonard, 7 St. 517; Bishop v. Price. 24 Wis. 480;
Pick (Mass.). 181 [1828]; Ponce?). Smith, Florida R Co. t. Smith, 21 Wall. (U S.)
84 Me. 266; Holmes t\ Chartiers Oil Co. 255; Ellerbe v. Minor (La.), 21 So. Rep.
(Pa.), 21 Atl. Rep. 231 [1891]; Sheldon v. 583; Wolf v. Gerr, 43 Iowa 339; Lee v.
648 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE, [§ 704.
not been accepted, it having become a part of the realty; ^ or in the words
of yet another case, "the contract price less the injuries suffered by omis-
sions and defects." '
It has been held that the amount saved by reletting to another con-
tractor is not the measure of the amount that is equitably due the prior
contractor who failed to complete the works/ If, however, the finding
as to damages is indefinite, the contractor should be allowed to recover
the value of the work done (contract price), less payments made on ac-
. count.*
In determining the amount of recovery the point should not be lost
sight of, that it is the benefit conferred that gives the contractor his right
of action. If the work and materials are any benefit whatever to the
owner the contractor may recover for them,^ but if the owner is not bene-
fited, or was injured more than he was benefited, the contractor cannot
recover, however much expense he has incurred."
704. Contractor is Responsible for Losses Suffered by Owner in Conse-
quence of Breach. — If the contractor's failure to complete his contract has
caused the owner further losses, which are the direct result of such failure,
then he must answer for them also. Such losses are more frequently caused
by a failure to complete the works in the time required by the contract, or
from accidents resulting from defective work or materials. Generally the
contractor is held for all gains prevented and losses sustained which are the
direct result of his breach, together with the expense of obtaining legal
redress. Such may be rents, revenues, and profits that are certain, and
any additional expense which is the result of the contractor's breach,^ but
not damages from failure to rent offices in the building." From rents,
revenues, etc., should be deducted charges for interest upon mortgages and
other incumbrances, taxes, and insurance, so as to determine the net profit'
or loss sustained by the owner.
A contractor who had failed to complete a railroad within the time ,
specified was held liable for the loss of the use of the road, but not for
freight it had made arrangements to carry, for that was under a collateral
contract; nor for what it would cost to complete the road in excess of the con-
Ashbrooke, 14 Mo. 879; Kelly v. Rowan ^ City of Sherman v. Conner (Tex.), 25
33 Mo, App. 440; Eyerman v. Ml Sinai S. W. Rep. 321.
Cem. Assn., 61 Mo. 489; 29 Amer &Eng. ^ School Dist. v. Lund, 57 Kan. 731.
Encv. Law 898. « Hunt v. Elliott (Cal.), 20 Pac. Rep. 132
1 ^tna I. & S. Co. V. Kossuth Co., 44 N. [1889J; semble, Garnsey v. Rhodes (Sup.),
W. Rep. 215. 18 N. Y. Supp. 484; Excelsior Needle Co.
2 Hunt V. Elliott (Cal.), 20 Pac. Rep. 132; v. Smith, 61 Conn. 56.
hi re Cook v. Gleason, 3 Chic. Leg. News '' Accord, Consaul v. Sheldon (Neb.), 52
410; Bank ^ Giies, 35 Pa. St. 423; White N. W. Rep. 1104; Abbott v. Gntch, 13
V. Scliool Dist.. 159 Pa. St. 201; see also 3 Md. 314; Somerby v. Tappan, Wright
A.mer. & Eng. Eiicy. Law 921. ' (Oliio)229.
=* People V. Detroit (Mich.). 2 The Re- « Clifford v. Leroux (Tex.),. 37 S. W.
porter 244; semble, Quinn v. United States, Rep. 172.
99 U. S. yO [1878]; semble, McDonald v. » Kid v. McCormick, 83 N. Y. 391.
Dodge Co. (Neb.), 60 N. W. Rep. 366.
§ 705.] CONTRACT STIPULATIONS, 649
tract price, for that was uncertain.' Loss occasioned to the company by
reason of another contract with a third party for use of the road cannot be
considered.' The owner has been allowed to charge the contractor with the
necessary cost of completing the works and all payments made to the con-
tractor, the amount of all valid liens for labor and materials furnished the
•contractor, and the amount of damages suffered by the owner by reason of
the contractor's default,'and the difference between the aggregate of these
^charges and the contract price was held to be the measure of recovery of
either the contractor or owner.'
In the purchase of materials and tools from dealers or manufacturers
the measure of damages for the failure of the dealer or manufacturer to
deliver the goods is the difference between the price agreed upon and the
.market value at the time and place they should have been delivered."
The amount of damages which the owner may recover or the amount of
reimbursement for the cost of completing the work is not limited to the
amount due the contractor and retained by the owner or company/
It has been held that the owner is not obliged to employ some one else
to do what the contract bound the other party to do, in order to lessen the
injury resulting from a breach of contract by the contractor."
705. Specific Performance of Contract. — Sometimes when great interests
have been at stake, as the operation of a railroad or a canal, or when the
safety and preservation of works require that work be completed forthwith,
the assistance of the courts has been invoked to compel the contractor to
proceed with the work and to complete it according to his contract.
It frequently happens that the work may require skilled mechanics and
such tools and machinery as are not to be obtained on short notice, so that
the owner (or company) cannot complete it himself nor readily secure the
services of others to undertake it. Under such circumstances, it is natural
for the company to appeal to a court of equity for a mandamus requiring
the contractor to proceed with the work, or at least to enjoin him from
interfering with the company when they undertake to complete it with his
tools and appliances.
An interesting case came up "^ under a contract for the construction
J Hunt v. Oregon Pac. Ry. Co., 36 Fed. Ford (Md.), 32 Atl. Rep. 280.
Rep. 481 [1888]. « Gulf, C. & S. F. Ry. C>. v. Hodge
* Snell V. Cottingham, 72 111. 161 [1874]. (Tex. Civ. App.). 30 S. W. Rep. 829.
3 Dorn v. Mengedoht (Neb.), 59 N. W. As to what damages may or may not be
Rep. 800; Cook «. Gleason. 3 Chic. Leg. assessed, see Herman -y. City of E. St.
News 410, wliere the contractor had be- Louis, 58 111. App. 166, benefits resulting
come bankrupt; semhU, Lawson v. Walla- in common with others in the locality; and
sey, 45 L. T. 507; Elkridge v. Rowe, 4 spe Coos Bav. etc., Nnv. Co. v. Nosier
Gilm. 91. (Oreg.), 48 Pao. Rep. 361; Berlin Iron
^Russell V. Horn, etc., Mfg. Co. (Neb.), Bdge. Co. v. Bonta (Pa. Sup.), 36 Atl.
59 N. W Rep. 901. Rep 867, depreciation of value of stocks
^ Lans^don v. Northfield (Minn.\ 44 N. of the project.
W. Rep. 984 [1890]; Rector v. McDermott ' Texas '& St. Louis Ry. Co. v. Rust, 17
'Ark.), 13 S. W. Rep. 334 [1890]: Tomp- Fed. Rep. 280 [1882].
kins©. Dudley, 25 N. Y. 272; Davis v.
650 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 706.
of a railroad bridge, in which the contractor was under a heavy penalty to
complete it by a certain day. The work having been delayed nntil long
after the day named for completion, the contractor flatly refused to con-
tinue it unless the company would release him from the penalties accrued
and come to terms about extra work, etc.
The railroad was nearly completed and trafl&c delayed because the bridge
was not finished, and the contractor, knowing this, sought to bring the com-
pany to his terms. The court, it seems, was not asked to decree a specific
performance of the contract, but the bill prayed the court to seize the con-
tractor's plant and to enjoin the contractor from interfering while the court
itself undertook its completion. This the court declined to do, expressing
the belief that it could not lawfully seize the property of one person for the
benefit of another without a trial and a hearing, and that no exigency of a
railway company and no considerations of public convenience, however great,
would justify such an act; that a citizen could not be deprived of his prop-
erty '^ without due process of law." '
706. Specific Performance will not be Required if Damages can be
Assessed that will Compensate the Losses Sustained. — Broadly stated, but
subject to exceptions, it is a general principle of equity that a decree of
specific performance will not be granted when adequate compensation can be
obtained in an action for damages.''
It may be gravely doubted, that a court will undertake to enforce the
specific, or the substantial performance even, of a construction contract." It
is pretty generally held that courts of chancery will not exercise such a
power either with regard to the erection of structures or to repairs upon them.
Usually, if not always, the owner can be compensated for his injuries suffered
in consequence of the contractor's failure to complete by a money considera-
tion, so that it is not necessary, it would seem, to decree a specific perform-
ance. A further reason given frequently by the courts when their assist-
ance has been sought is that it would be impracticable, if not impossible, for
an officer of the court to carry out such a decree,* and it is the perform-
ance of those contracts which present the greatest difficulty, which is sought.
A contract which any one can complete would be carried out by subcontract-
ing, and would not require the services of the contractor nor the assistance
of a court of equity.
' Texas & St. Louis Ry. Co. v. Rust, 17 (La.). 10 So. Rep. 401 [1892] ; Kendnll v.
Fed. Rep. 280; citing City of Chicago v. Frey, 74 Wis. 26 ; Payue v. Still (Wasli.),
Hutchinson, 15 Fed. Rep 129; Glover v. 38 Pac. Rep. 994 ; 22 Amer. &.Eng. Ency.
Shepperd, 15 Fed. Rep. 833; Phoenix Mnt. Law 914 ; 29 Amer. & Eng. Ency. L'lW
L. Ins. Co. v. Walrath, 16 Fed. Rep. 161; 913 ; Ll<>yd Law of Building, etc., chap.
Public G. & S. Ex. V. West, U. Tel. Co., vi ; Einden's Law of Building, etc., chap.
16 Fed. Rep. 289; settlement of case is re- xvii ; The Justices v. Coift, 18 Ga. 473.
porttid, Texas & St. L. Ry. Co. v. Rust, 19 » Texas «& St. Louis Ry. Co., 17 Fed.
Fed. Rep. 239 [1883]; accord. Greenhill v. Rep. 275.
Isle of Wisjht R. Co., 23 L. T. (N. S.) 885; ^^22 Amer. & Eng. Ency. Law 996-7,
Brace «. Wehnert, 25 Beav. 351. and cases cited. English cases in Emden's
'New Orleans «.,N. O. & N. E. R. Co. Law of Building and Leases, chap, xvii;
§ 706.] CONTRACT STIPULATIONS. 651
It has been frequently held that contracts to build will not be specifically
enforced, because of the impracticability, if not impossibility, of the court
supervising the work, and for the reason that a remedy of damages will
afford full redress for the injury suffered from nonperformance/
It has been held that a decree will not be granted to compel the con-
struction nor repair of a railroad, nor a bridge, nor a building; ' but there
are many cases which are exceptions to any general rule to that effect, if
indeed they may not be taken as contrary to such a rule.
The courts have enforced contracts to build railroad crossings,^ to
maintain a railway station at a certain location described,* to erect
a station building at a certain place and a bridge at a certain cross-
ing, to construct a siding.^ These cases are usually contracts relating
to the sale of, or right of way over, real estate, or they are cases
in which the consideration foi' the obligation to build was the convey-
ance of real estate, which real estate has become so encumbered with
structures that it cannot be restored to the owner in its original condition.'
If the violation of the contract obligation cannot be adequately compensated
in damages, then a specific performance maybe required by the court. Such
cases are those where an adjoining property owner has undertaken for a
valuable consideration to build or improve his land for the benefit of his
neighbor, as to make or mainta^in a road across his land,' to build a roadway
and wharf ® or an arched passageway," to keep the banks of a river in repair,'"
or to alter the elevation of a house so as to correspond with adjoining
houses.'* The Scotch courts have decreed the specific performance of con-
tracts to build, and have directed the work by appointing an engineer or
architect to superintend if
Lloyd's Law of Building, § 42 ; 29 Amer. •* Lawrence -». Saratoga Lake R. Co., 36
& Eng. Ency. Law 913. Hun 467 [1885] ; Minneapolis, etc., R. Co.
1 Beck V. Allison, 56 N. Y. 366 ; Mastin v. Cox, 76 Iowa 306 ; but see Wilson v.
V. Halley, 61 Mo. 196 ; Blanchard v. De- Northampton Ry. Co., L. R. 9 Ch. App.
troit, etc., R. Co. , 31 Mich, 43 ; Kendall v. 279 ; aiid see Blanchard v. Detroit R. Co.,
Fry, 74 Wis. 26 ; Soutli Wales R. Co. «. 31 Mich. 43.
Whythes, 5 DeG. M. & G. 880 ; Greenhill ^ Lawrence v. Saratoga Lake R. Co.,
V. Isle of Wight R. Co., 23 L. T. (N. S.) mpra ; Green v. West Cheshire R. Co., L.
885 ; Lucas v. Commerford, 3 Bro. C. C. R. 13 Eq. 44.
166 ; Peto u. Brighton R. Co., 1 H. & M. ®Lawrencei).SaratogaLakeR.Co.,«wj07'a/
468 ; Raymer v. Stone. 2 Eden 128 ; Lon- hut see contra, Conger??. N.Y., etc., R. Co.,
don V. Nash, 3 Alk. 515 ; London, etc., R. 45 Hun (N. Y.), 296 ; Texas, etc., R. Co.
Co. V. Humplirey, 6 W. R. 784 ; Paxton v. v. Marshall, 136 U. S. 393, in which cases
Newton, 2 Sm. & Giff. 431 ; Texas & 3t. L. it would have been inequitable to so decree.
Ry. V Rust, 17 Fed. Rep. 275 ; 19 Fed. "'Lytton v. G. N. Ry. Co., 2 K. & J.
Rep. 239; Elec. Ltg. Co. v. Mobile, etc., 394 ; Sanderson v. Cockermoulh, etc., Ry.
Ry Co. (Ala ), 19 So. Rep. 721 ; Ross «. Co., 11 Beav. 497.
Union Pac. R. Co., 1 Woolw. (U. S.) 26; « Firth v. Midland Ry. Co., L. R. 20
Prospect Pk , etc., R. Co. v. Coney Isd., Eq. 100 ; Wilson v. Furness Ry. Co., L.
etc., R. Co. ^N. Y. App.), 39 N. E. Rep. R. 9 Eq. 28.
17 ; 19 Amer. & Eng. Ency. Law 878. « Storer v. Gt. Western Ry. Co., 2 Y. «&
2 G ises collected in 22 Amer. & Eng. C. C. C. 54.
Encv Law 996-7, noUs. lo Kilmorey v. Thackery, 2 Bro. Ch. 65.
3 Post V. West Shore R. Co., 123 N. Y. " Franklyn v. Tuton, 5 Madd. 469.
581; Sanderson v. Cockermouth, etc., R. ^'Clarke v. Glasgow Assurance Co., 1
Co., 11 Beav. 497. M'Queen 668.
652 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 707.
The reasons advanced by the courts for refusing to decree specific per-
formance of building agreements are the following: First, because if one
contractor will not build another can; secondly, because the owner can get
along with a house built by another contractor; thirdly, because such con-
tracts are for the most part too uncertain and too technical for a court to-
carry them out; fourthly, the enormous inconvenience attending building
operations, which a court is loath to undertake; fifthly, the great difficulty
of determining whether the court^s decree has or has not been carried out
and fully performed, and the litigation which would be likely to result to-
determine such a question/
In spite of these difficulties there are several jurists who have expressed
the belief that if the thing to be done be clear, definite, and certain, it
should be enforced by specific performance.'' Mr. Story, in his Equity
Jurisprudence, § 728, says : "It is by no means clear that complete and ade-
quate compensation can in such cases be obtained at law. * * * The
damages must be quite conjectural and incapable of being reduced to any
absolute certainty. * * * j^ would not, therefore, be surprising if, after
all, the doctrine " of specific performance of a definite agreement " should
obtain a firm hold in equity jurisprudence, as it stands well supported by
analogy as well as by high authority." ^ The weight of authority is, how-
ever, against specific performance of a building contract, for the reasons
named above. The fact that courts do decree and enforce specific perfoim-
ance in cases where the consideration is an interest in land would seem ta
negative objections three, four, and five.
707. Specific Performance of a Contract to Furnish Materials the Supply
ofWhich Is a Monopoly. — Contracts for the sale of supplies and materials
will not be specifically enforced if the character of the materials be such
that the breach of the contract to furnish them can be adequately compen-
sated in damages. If like materials are essential to the work, and they
cannot be obtained from other sources, specific performance may, in the^
discretion of the court, be decreed and the materialman required to furnish
them pursuant to his contract.*
A case of special interest to contractors and builders, and to the profes-
sion, was a recent Oregon case in which the mason contractor agreed to fur-
nish stone for a church edifice from his quarry and to do the mason work.
When the work was two-thirds done, the contractor became insolvent and
was unable to perform his contract. It was shown that the stone was of
a peculiar kind and color and could be procured only from the defend-
lEmden's Law of Building, chap, xvii, ^ Story's Eq. Jurisprudence, g 728.
2 Lord Hardwick, in London, v. Nash, 3 * Equitable GasLt. Co. v. Bal. Coal Tar
Atk. 512; Lord Ro^slyn, in MoseU-y, v. c& Mfg. Co.. 63 Md. 285; Gloucester Isin-
Virgin, 3 Vcs. 184 ; Lord Loughborousch, glass, etc, Co. v. Russia Cement Co., 154
in Brace, ■». Wehnert, 25 Beav. 348 ; Hep- Mass. 92 ; Buxton v. Lister, 3 Atk. 384, a
burn ■». Leather, 50 L. T: 660 ; Clarke v. contract for ship timber in larjre qujuiti-
Glasgow Ass. Co., 1 M'Queen 668 ; Fry's ties ; and see Price v. Corporation, 4 Hare
Spec. Pref. (2d ed.) 38. 506-9.
§ 708.] CONTRACT STIPULATIONS. 653
ant's quarry, and that to use any other kind of stone would destroy the
harmony and beauty of the structure. It was held that the contractor
should be compelled to furnish the stone necessary to complete the building
and to permit the owner to enter on his premises to procure such stone, and
to permit him to use his derricks at the quarry and at the church building
in quarrying, transporting, and raising the stone/ In this case the court
does not seem to have been troubled with the argument of the case in Sec.
705, that such a decree would be a depriving of the contractor of his prop-
erty without due process of law. If, as in the latter case, the courts can
decree that the contractor shall permit the owner to use his derricks and
stone to complete a church, it would seem proper that in another case the
contractor could be required to furnish his derricks and the members of a
railroad bridge. To an engineer the exigencies of the former case would
seem to be greater than in the latter.
Contracts for the sale and delivery of maps, drawings, etc., have been
specifically enforced.^ A contract to furnish a patented or copyrighted
article would be enforced by mandamus in the same manner, in all proba-
bility, if the damages could not be ascertained and compensated by a money
consideration.
A contractor may be enjoined from interfering with an owner who un-
dertakes to complete work which he has refused to do.' A contractor will
not be enjoined for doing his work upon a street otherwise than according
to his contract, at the suit of a property owner." In these cases it should
be remembered that specific performance cannot be demanded as an abso-
lute right, but that it rests largely with the court, to be exercised in strict
conformity with equity and justice.^
708. Neither will Specific Performance of a Construction Contract be
Decreed against the Owner. — On the grounds recited in previous sections,
the owner or company cannot be compelled to proceed with the construction
of a structure at the instance of the contractor.^ The contractor, if he be not
himself in default, has a just claim against the owner for damages, and his
remedy is an action at law for such damages.'' If he is prevented from
bringing his action at law, as when the , favorable decision of the engineer
is made a condition precedent to any recovery under the contract, he may,
when the engineer has been guilty of fraud or unfair conduct, go into a
court of equity and get relief. An English court, in a case of unfair treat-
ment by the architect, decreed payment of the balance due on the contract,
relieved the contractor from all penalties, declared the architect's decision
1 Rector, etc., v. Wood (Oreg), 34 Pac. (La ) 10 So. Rep. 401 [1892].
Rep 18. 6 Garrett v. Banstead, etc., Ry. Co., 4
'■^ McGowaa v. Remington, 12 Pa. St. 56. DeG. J &. S. 462.
3 Corporation v. Rooney, 7 L. R. Ir. 191. -^ Lord v. Thomas. 64 N. Y 107 [1876];
"McCafferty v. McCabe, 13 How. Pr. Peoples. Harmon (Sup.), 36 N. Y. Supp.
,'N. Y.)275. 331.
» New Orleans v. N. O. & N. E. R. Co.
654 ENQINEEBINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 709.
not binding, and ordered the defendants — the owner and architect^ — to pay
the cost of the suit/
709. Specific Performance of Contract for Personal Service. — Contracts
for personal services to be performed involving the labor, skill, discretion,
taste, talent, or inventive genius, of an engineer or architect in default, will
not be specifically enforced because they are incapable of supervision or con-
trol. If an architect or engineer has undertaken the design and construc-
tion of a structure, or of the invention of a machine, and when partly
completed he declines to proceed further with it, it seems that the only
remedy that his employer can have is an action at law for damages, the
value of which will be measured by the reliability of the employee.'
The cases cited are, for the most part, cases in which the employer has
sought the assistance of the court to compel theatrical performers, singers,
artists, and even acrobats and baseball players, to perform their contracts of
service where they have been engaged for a season. The author is not
familiar with any decision of a case where an engineer, architect, or land-
scape architect has, when the work was partly completed or well under way,
refused to carry out the inception or plans which he has conceived and which
perhaps he alone could do, successfully. The reader can imagine cases in
which an engineer or architect, in tlie execution of a public work, or a land-
scape gardener, in the laying out and beautifying of a public park, might
be so hampered, annoyed, and interfered with by boards and commissioners
^s to justify him in refusing to continue the work to the great detriment of
his own professional reputation. In fact, it is too often the case with our
public works and parks.
The protection which a company or owner may secure to itself is to insist
that the plans shall be completed before the work is begun, or that they be
so far completed as is possible to be done, and that the architect or engineer
be required to report upon his project to a board of experts, or to a consult-
ing engineer, if the work be of sufficient magnitude. When committed to
paper in the shape of plans and drawings and sketches, the court will require
the architect or engineer to deliver such plans over to the state, company,
and own^r, for that it can do.
It has been held that a contract for the services of an architect did not
survive to his representative,' and that the latter could not recover on a
contract partly performed.*
A public officer, as a city engineer, may be compelled by mandamus to
furnish lines and levels in accordance with the terms of the contract."
1 PawleyD.Turnlmll.3Qifford70[1861]. collected in 23 Amer. & Eng. Ency. Law
« Wollensack v. Brlg^s (111.). 28 The 1004, awd 10 Amer. &Eng. Ency. Law 948.
Reptr. 399, 119 111. 453 [1887] ; Wilson v. ^ Hall v. Wright, E., B. & E. 765; Tay-
Roots ail.), 10 N. E. Rep. 204 [1887]; lor ?j. Caldwell. 3 B. & S. 835.
Elnc. Lt.ff. Co. -??. Mobile, etc., Rv. Co. * gi^^bi^g v. Hollywell Ry. Co., L R. 2
(Ala.), 19 So, Rep. 721 ; In re Walter Ex.311.
Baker, 29 How. Pr. 485 [1865]; Many cases ^ State v. Bell (La.), 21 So. Rep. 724.
CHAPTER XXVI.
NONPERFORMANCE OF CONTRACT.
POWER OF OWNER OR COMPANY TO TERMINATEj RESCIND, OR ANNUL CON«
TRACT FOR CERTAIN CAUSES. POWER TO EMPLOY OTHERS TO COMPLETE
^ORK IN CASE OF DELAY, DEFAULT OR BREACH OF CONTRACTOR. ENGI-
NEER OR ARCHITECT MADE THE SOLE JUDGE.
710. Provision Conferring Power upon Owner to Terminate Contract
in Case of Default by Contractor.
. Clause: " If the contractors or builders shall become insolvent, or be
declared bankrupt, or shall from any other cause, in the judgement of
the engineer or architect, be unable to carry on the work, or if they shall
make default in the due performance of the agreement, or of all or any
of these conditions, or in duly proceeding with the work, and the engi-
neer or architect shall give notice in writing of such delay, neglect, or
default to the contractors or builders specifying the same, and the con-
tractors or builders shall not for a period of days after such notice
proceed satisfactorily in accordance therewith, then the said owner
shall, on the written certificate of the engineer or architect of the fact
of such delay, neglect, or default, and of the contractors' or builders'
failure to comply with such notice, have full power and authority to
terminate the contract by written notice under the hand of the said
owner, and thereupon all sums of money that may be due to the con-
tractors or builders, together with all materials, goods, chattels, and
effects, including tools, machinery, and plant then lying in, upon, or
about the buildings or grounds, shall become forfeited to the said owner,
and may be employed or sold and disposed of as he may direct, and the
said owner shall have full power and authority to employ any person or
persons to complete the whole or any part of the work, or to enter into
any new contract or contracts for the completion of the same or any
part thereof, without prejudice, however, to any remedy which he may
have against the contractors or builders for their breach of contract/'
711. Provision for Builder's Failure.
Clause: " If the contractor or builder becomes a bankrupt, or com-
pounds with his creditors, or neglects, or fails, or becomes unable to
proceed with the work as directed by the engineer or architect (unless
the work shall be interrupted by a general strike or refusal on the part
of employees), the owner may, after a certificate from the architect to
that effect, get the work done by any other builder or workman as he shall
think fit, and the contractor and his assignees shall thereupon forfeit all
claim to further payment under this contract, except to such balance
655
666 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 712.
(if any) as shall remain out of the said sum of ... . dollars after the-
completion of the work by such other builder or workman, and th&
builder and his assignees shall not be at liberty to remove any scaffold-
ing, tools, plant, or materials from the premises until the same shall
cease to be required."
712. Provision that Owner may Terminate Contract for Certain
Causes.
Clause: "And it is further expressly agreed that if the contractor,,
during the continuance of this contract, shall die or shall become bank-
rupt or insolvent, or shall compound with his creditors, or shall propose-
any composition with his creditors for the settlement of his debts, or
shall commit any act of insolvency, or propose any composition with his
creditors for the settlement of his debts, or shall assign, make over, or
underlet this contract, or any part or benefit thereof, or make any sub-
contract for the execution thereof, or of any part thereof, or shall
attempt to transfer or assign his contract without the consent of the
owner or company, or its engineer, or if the same shall become vested
in any other person, or shall carry on, or propose to carry on, his busi-
ness under inspectors on behalf of his creditors, or shall commit any act
of bankruptcy, or shall give, promise, or offer any gift, loan, fee,
reward, or advantage whatsoever to any officer or servant of the city^
state, or government; or if by the report of the engineer it shall appear
that the rate of progress of the said works is not such as to insure the-
satisfactory completion of the same within the time herein designated,
or within any additional time which may have been granted, as in the
said contract provided, or in case no additional time has been granted,
and the said works are not completed within the time before limited;
or in case of additional time being granted as aforesaid, then if the same
are not completed within such additional time, or if at any time the
works, or any part thereof, are in the opinion and according to the
determination [judgment] of the engineer not executed, or not being
executed, in a sound and workmanlike manner, and in all respects in
strict conformity with the specifications and contract, and to his satis-
faction, then the engineer, clerk of the council, or president of the com-
pany may, by a notice in writing under the hand of the engineer, clerk,,
or president, delivered or sent through the post-office in a registered
letter addressed to the contractor, or his legal personal representative
at the contractor's usual or last known place of abode or business, give
notice to the contractor thereof, and in case he shall refuse or neglect
within forty-eight hours to take down, rebuild, repair, alter, or amend any
defective or unsatisfactory work, or to comply with any order he may so
receive to that effect, or in case the works, from the want of sufficient or
proper workmen, or materials, are not proceeding with what the engi-
neer shall consider to be due dispatch, or if the contractor shall persist
in any course violating any of the provisions of his contract, then the
engineer may after two days' notice to the contractor to do what is neces-
sary, and upon his failure to do so (or in case of the contractor's bank-
ruptcy, insolvency, or of his compounding with his creditors, or of his
making any proposition therefor, or of his transferring or assigning this
contract, or making any attempt to do so,' then without previous notice)
the engineer shall have the power, at his discretion, without process or
action at law, to take the work, or any part thereof, mentioned in such
§ 713.] CONTRACT STIPULATIONS. 65T
notice, out of the hands of the contractor, and either to re-let the same-
to any other person, or persons, and upon such conditions as he may
think fit, without its being previously advertised, or to employ workmea
and provide materials, tools, implements and apparatus, transportation
and all other necessary things at the expense of the contractor, or to
take such other steps as he may consider necessary or proper in order
to secure the completion of the said works, or any of them, or for repair-
ing or remedying, or endeavoring to remedy or repair any defects which
may appear therein, without thereby affecting the obligations, liabilities,
and responsibilities of the contractors, the whole of which shall, unless
otherwise agreed in writing to the contrary, and except as is otherwise
hereinafter mentioned, continue to be in force as fully and to the same
extent and for the same period as if the contract had not been so deter-
mined, and as if the works subsequently executed had been executed by
or on behalf of the contractor, and without thereby creating any trust in
their favor, and to enter in and to take possession of the works, and of the^
plant, tools,and materials of the contractor, and to use or sell, or to use and
to sell, the same as the absolute property of the owner, company, or city,,
and the contractor in every case shall be liable for all damages and extra
expenditure which may be incurred by reason thereof. And all the
powers of the said engineer with respect to the determination of any
doubts, disputes, and differences, and with respect to the settlement of
the contract, and the determination of the sum or sums, or balance of
money to be paid to or received from the said contractor, and otherwise
in respect to the said contract, shall nevertheless continue in force with
respect to the same, as though such contract had not been determined
nor interrupted."
713. Provision that if "Work does not Progress Satisfactorily, Owner
may. After Giving Notice, Employ Other Persons and Provide Materials
and Complete Work at Expense of Contractor.
Clause: "If at any time the works or any part thereof, are, in the
judgment of the engineer, not executed or are not being executed in a
sound and workmanlike manner, and in all respects in strict conformity
with this specification, and the contract of which it is made a part, and
to his satisfaction, the same shall be intimated to the contractor in
writing or otherwise, and in case he refuses to take down, rebuild, repair,
altar, or amend any defective or unsatisfactory work, or comply with
any order he may so receive to that effect, or in case the works, from
the want of sufficient or proper workmen or materials, are not proceed-
irfg with all the necessary dispatch, then the said board or company
shall, on the report of the engineer, after giving three days^ notice in
writing thereof to the contractor, his agent, or foreman, have full power
without vitiating this contract, to take the works wholly or in part out
of the hands of the said contractor, to appropriate and use any or all
materials, tools, and appliances belonging to the contractor or provided
by him for the works as may be suitable and acceptable, and to engage
or employ any other persons or workmen and procure all requisite
materials and implements for the due execution and completion of the
said works; and the costs and charges incurred by them in so doing
shall be ascertained by the engineer, and paid for or allowed to the said
board or company by the contractor; and it shall be competent to the
said board to deduct the amount of such costs and charges out of any
658 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 714.
money due or to become due from them to the said contractor under
tliis or any other contract with the said board on behalf of the
corporation/'
714. Provision that Owner may under Certain Conditions Take Work
Jrom Contractor and Employ Others to Complete It.
Clause: "The said part. . .of the second part further agree. . .that if
the work to be done under this agreement shall be abandoned, or if the
conditions as to the rate of progress hereinbefore specified are not
fulfilled, or if this contract shall be assigned by the part. . .of the second
part otherwise than as is hereinbefore specified, or if at any time the
engineer shall be of opinion, and shall so certify, in writing, to the said
commissioners, that the said work or any part thereof is unnecessarily
or unreasonably delayed, or that the said contractor is violating any of
the conditions or covenants of this contract, or executing said contract
in bad faith, or if the work to be done under this contract be not fully
and entirely completed within the time herein stipulated for its com-
pletion, the said owner, or commissioners, or board shall have the power
to notify the aforesaid contractor to discontinue all work or any part
thereof under this contract; and thereupon the said contractor shall
discontinue the said work or such part thereof as the said owner or
board may designate; and the said owner or board shall thereupon have
the right, at its discretion, to contract with other parties for the de-
livery or completion of all or any part of the work left uncompleted
by said contractor, or for the correction of the whole or any part of
-said work, or to hire and place such and so many persons, and obtain
by purchase or hire such materials, animals, carts, wagons, implements,
and tools, by contract or otherwise, as said owner or commissioners
or board deem necessary to complete the work herein described, or
such part thereof, and to procure materials for the completion of the
same, and to charge the expenses of said labor and materials, animals,
-carts, wagons, implements, and tools to the aforesaid contractor. And in
case the expense so incurred by said board is less than the sum which would
have been payable under this contract if the same had been completed
by the said contractor, then the said contractor shall be entitled to re-
ceive the difference; and in case such expense shall exceed the last said
sum, then the contractor, shall, on demand, pay the amount of such
•excess to said owner, company, or city, but such excess to be paid
by the contractor shall not exceed the amount of the security for the
performance of this contract.^' *
715. Provision that Owner may Annul or Kescind Contract in Case of
Default by, or Legal Proceedings against. Contractor.
Short clause: " And it is hereby further agreed that in case the said
contractor shall not well and truly, from time to time, comply with
and perform all the terms hereinbefore mentioned, or in case it shall
appear to said chief engineer that the work does not progress with
sufficient speed or in proper manner, or in case of interference with
said work by legal proceedings instituted against the contractor by
other parties than the said company, the said company or its chief
engineer shall have power to annul this contract if it [he] shall de-
termine so to do by giving notice in writing, etc., * * * when.
§ 718.] CONTRACT STIPULATIONS. 659
upon such serving of said notice, the foregoing agreement on the
part of said company, and every claim and part thereof, sliull become
null and void, and the unpaid part of the value of the work done shall
be forfaited by the contractor to the use of said company in the nature
of liquidated damages."'
716. Provision that if Work does not Progress with Due Diligence Other
Contractors may be Employed.
Clause: "The contractor shall commence and carry on the works
with due diligence and as much expedition as the owner or city or its
authorized officers may require; and in case the contractor shall fail to
to do so, or shall neglect to provide proper and sufficient materials, or
to employ a sufficient number of workmen to execute the works which
he shall be ordered to execute, with the diligence or dispatch required,
then either the said owner or city or the engineer shall be at liberty
and are hereby authorized to employ otlier contractors or workmen,
and to provide the necessary materials, and to charge the extra ex-
penses incurred thereby to the account of the contractor, and to de-
duct the same from any sum or sums due or to become due to him,
under this or any other contract With the said owner or city "
717. Provision that Engineer shall Render an Account between Parties,
which Account shall be Final and Conclusive.
Clause: "In case the owner or city or engineer shall take the works,
or any part thereof, out of the hands of the contractor as lierein pro-
vided, then upon completion of the works herein provided for, the said
engineer shall certify what, if anything, shall remain due to the con-
tractor in respect of the said works, after making due allowance for all
additions to be allowed to, or deductions or charges to be borne by, the^
contractor under the provisions of his contract, or shall certify what,,
if anything, shall be owing to the said corporation in respect thereof,
and the contractor and the said corporation respectively shall abide by
the certificate to be made by the said engineer as aforesaid, and shall
forthwith pay to the other party the amount found to be owing in re-
^ spect of the said works."
718. General Remarks in Regard to these Clauses Providing for the
Termination of the Contract. — The necessity of reserving to the company
the right and power to terminate, annul, or rescind the contract for delay,,
incompetence, inattention, or refusal to perform, whether arising from ignor-
ance, incapacity, dissipation, or willfulness, or lack of means, will be appre-
ciated by all engaged in such work except, perhaps, contractors.
Before exercising such a right the owner and engineer should consider
carefully the consequences of an act of rescision, which are fully explained
in succeeding sections. The consequences are so far reaching and so produc-
tive of results not anticipated nor desired that they deserve going over in
detail. The termination of a construction contract should be regarded as a
very serious step, and one to be taken only under the strongest provocation.
> See Elizabethtown & P. R. Co. v. Geoghrgan, 9 Bush (Ky.) 56 [1875].
'660 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 719.
and when taken it should be executed promptly, positively, and unequivocal-
ly, and in strict accordance with the terms of the contract by which the
right is reserved. Clauses providing for annulment of the contract by the
owner are forfeitures imposed upon the contractor and are not in favor with
courts, who construe them most strongly against the owner, company, or
city. In fact, the real value of such clauses is very much overestimated as
will be seen from what follows. The courts limit the power conferred as
narrowly as the language used will permit.
719. Contracts may be Eescinded by Mutual Consent at Any Time. —
Contracts for construction work being self-imposed obligations, requiring
the joint act or consent of both parties, it follows that the burden of per-
forming those obligations may be removed at any time by the mutual con-
sent of both parties. If the contractor is released from his obligation to com-
plete work by consent, he can recover for what he has performed on a quan-
timi meruit.^ The parties may also in the beginning, by express agreement,
limit their obligations to a certain date or to the occurrence of some event
described, or to the performance of some act, or to its nonperformance or
misfeasance,' The parties may, by a new or supplemental agreement,
rescind former agreements, or in the original contract agree that certain
acts or conditions shall be taken as a determination on the part 'of the con-
tractor not to perform his undertaking, which shall relieve the company
from its obligations.'
If the contract has been executed by one party, such an agreement to
rescind must be supported by some consideration, the same as any other con-
tract.* * If it has not been executed, the promise or agreement upon the one
side not to enforce his rights constitutes the consideration for the promise of
the other side not to enforce his rights. The contract obligation once
assumed cannot be revoked, and if a contract has been entered into in con-
formity with municipal ordinance through its proper officers, such contract
remains in force with all the liabilities that the law attaches thereto, not-
withstanding the passage of a subsequent ordinance altering, diminishing,
or limiting the extent to which the work was authorized by the first ordi-
nance. Until the city acts on the later ordinance, and by its proper authori-
ties forbids the contractor going on under his contract, which may amount
to a breach, he should, or has the right to, pursue his work in conformity
therewith.' Such contracts cannot be changed without the consent of or notice
• B. & O. R. Co. V Resley, 7 Md. 297; B. relating to the same matter, whirh is void
& O. R Co. v. Laffertys, 2 W. Va. 104. under the statute of frauds. Harvey v.
^ Cases, 29 Amer. & Eng. Ency. Law Morey (Coio. Sup), 45 Pac. Rep. 383.
915, u. 3. 957, n. 3 and 958 n. 1, 979 n. * Westpioreland v. Porter, 75 Ala. 452
2; Bacon v. Proctor (Com. PI.), 33 N. Y. [1883].
Supp. 995. * Ottendorfer v. Fortunato, 56 N Y.
^ A valid contract is not annulled by a Super. Ct. 495 [1889].
subsequent contract between the parties,
* See Sees. 69, 131, and 563, supra.
§ 720.] CONTRACT STIPULATIONS. 661
to, the parties to be affected thereby.* If the city, company, or owner give
<iue notice of its refusal to perform or execute its part of the contract, the
<jontract is broken, and the contractor has his remedy in the courts.*
Specific performance will not be enforced nor will an injunction issue
against the owner.'
720. Agreements that Owner may Terminate Contract are Valid and Bind-
ing.— While agreements that a contract shall upon certain conditions
become inoperative and not binding have been sustained, a contract that one
party can in his discretion or for certain causes, of which he himself shall
be sole judge, terminate or annul a contract, would seem to be unreasonable
and against public policy. Such a contract presents the one-sided spectacle
of one party being bound to perform his undertakings, while the other may
j)erform or not, at his pleasure.
Whatever doubt may have existed as to the legality of such an agree-
ment, it is now well settled beyond dispute that an agreement of a contractor
in a construction contract, such as is given in the contract clauses preced-
ing, will be upheld and enforced by our courts.' f If not contrary to equity
^nd good morals, the exercise of such a right to terminate, reserved in the
instrument itself, will be enforced by the courts." " The agreements of the
parties are the law by which their rights are to be determined, and it is
extremely doubtful if any court can legitimately interfere or upset their
arrangements where an honest discretion has been exercised and neither
fraud nor circumvention has been practiced.' It has been held that the
right to rescind under such a reservation can be exercised without ques-
tion by or notice to the contractor, in the manner stipulated.' However, as
said before, stipulations for forfeitures are not in favor with the courts, and
« good deal that has been said of penalties under the sections on liquidated
■damages will apply to forfeitures.' To avoid hardship and undue advantage
the courts will consider all the circumstances of a case tending to show a
v^aiver of the forfeiture.
It is most usual to leave the question of delay or incapacity to the engi-
neer or architect in charge of the work, by a clause similar to the following:
^Duncombe v. City of Ft. Dodge, 38 Cas. 298; Davies v. Swansea, 8 Exch. 808;
Iowa 281. Culbertson v. Ellis, 6 McLean (U. S.) 248;
« Garrett «. Baustead, etc., Ry., 4 De G. M'Intosh v. Midland Co.'s Ry., 14 M &
J. & S. 462. W. 548; accord, Schuler «. Eckert (Mich.),
3 Easton v. Penna. & O. Canal Co., 13 51 N. W. Rep. 198.
Ohio 79 [1844]; Randel v. Chesp. & Del. * Morrisey v. Broomal (Neb.), 56 N. W.
Canal Co.. 1 Harrington (Del.) 233-322 Rep. 383.
[1833]; Grassmau u. Bonn, 32 N. J. Eq. 43; * Easton v Penn. & Ohio Canal Co.,
Rector v. McDermott (Ark.), 13 8. W. «wj9ra/ accorti Morrisey ®. Broomal (Neb.),
Rep. 334 [1890]; Lara v. Greelev, 20 Fla. supra.
926; Rossvally v. City of New Orleans, 19 « Henderson Edge. Co. v. O'Connor, 88
La. Ann. 7 (1867]; Hammond v. Miller, 2 Ky. 303.
Mackey (D. C). 145; Hewlett U.Alexander, ''Lloyd's Law'of Building, etc. 98 and
87 Ala" 193; Mohan v. Dundalk R. Co , L. 102; Hunter v. Hunter, 17 Barb. 26;
R 6 Ir 477; Stadhard v. Lee, 3 B. & S. Salters v. Ralph, 15 Abb. Pr. 273.
564; Ranger v. Gt. Western K., 3 Rv/y.
* See Sees. 681-696 and 707-709, supra. f See Sees. 340-345, supra.
662 ENOIIfEEBINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 721^
" If the opinion of the engineer shall be at any time, that the con-
tractor has refused or has unreasonably neglected to prosecute his con-
tract, such engineer may certify the same opinion to the company, and
on his certificate the company shall have the right and power of
determining that he has abandoned it,^' etc.
Such an agreement has been held a covenant on the part of the con-
tractor, and gives to the owner or company the power, upon the certificate
being made, to put an end to the contract,^ and without being liable for
damages resulting.'
If the contract require that the structure be erected " in the best, most
substantial, and workmanlike manner,'^ and authorizes the owner to termi-
nate it if the work is not done in accordance with its terms, the incapacity
of the contractor to do the work properly, arising from his ignorance, and
dissipation, and the incompetence and dissipation of his workmen, has been
held to justify the owner in terminating the contract.' A finding by the-
lower court on conflicting evidence that the owner had just cause for taking-
possession of and completing the works will not be disturbed on appeal.*
Under such clauses for the termination of the contract and completion
of the work by the' owner, an owner cannot declare the contract forfeited
and refuse to relet the work to others nor complete it himself. It was so
held of a principal contractor, the court holding that the subcontractor was
entitled to full pay for what he had done, including the 15 per cent, reserved
for full completion of contract.'
721. The Acts, or Failure to Act, of Contractor does not Render Con-
tract Void, but the Owner must Act. — The failure, neglect or refusal of the^
contractor does not make the contract void, but voidable only at the election
of the owner. It is a power which the latter may exercise or waive in hia
discretion, and though the power be derived from a contract under seal, it.
may be waived by oral agreement or by neglect to exercise it at the time and
in the manner expressed.* * The provision confers no such rights or privileges
upon the contractor. The owner may hold fast or let go as he will, while
the contractor is holden to the terms of his agreement. If the contractor
has agreed that in the event of his failure to make certain progress, or to
perform according to terms of contract and specifications, the owner mav
take the works away from him and complete them, deducting the cost from
the contract price, the contractor cannot abandon the work and require the-
» Randel t>. Chesapeake & Del. Canal Co. , » Rector v. McDermott (Ark.), 13 S. W.
1 Har. (Del.) 233 [18331; Roberts v. Bury Rep. 334 [1890].
Imp Com'rs.. L. R. 4 (Com. PI.) 755; ^gchuler «. Eckert, 51 N. W. Rep. 198:
Raneer v Gt. Western Ry., 5 H. of L. Cas. [1892]; and see Benson v. Miller (Minn.),
72; Scott v. T.iverpool, 3 De G. & J. 334; 57 K W. R-.p. 943 [1894].
Munroe v. Wivenhoe, etc., R. Co., 11 Jur. "^ Winters v. Fleece. 14 Lea (Tenn.), 546;
(N. S.) 612; Garrett « Banstead, etc., R. see also Maloney v. Malcolm, 31 Mo. 45.
Co , 11 Jur. (N. S.) 654. * Randel v. Chesp. «& Del. Canal Co.»
»" Harder v. Com'r., 97 Ind. 455. supra.
. * And see Sees. 417, 701, supra, and 726, ir\fra.
§ 722.] CONTRACT STIPULATIONS. 663
owner to complete it and account to him for the balance of the contract
price.* A stipulation that if the contractor fail to perform his covenant,
the contract shall be yoid, does not permit him when he has failed to per-
form, to rescind the contract on that ground and thus profit by his own
wrong/ and a stipulation for liquidated damages does not give to the con-
tractor the option to pay the damages and break his contract.^ The annuling
of a contract, under a power reserved therein, for default of the contractor,
does not release the latter and liis sureties from liability for prior breaches. *
A notice from the owner of his election to complete work, whereupon the
contractor stopped work, does not of itself show that the contractor was pre-
vented from proceeding with his work so as to entitle him to recover on a
quantum meruit." If after the job has been taken out of contractor's hands
the contractor be allowed to continue with the work, he may recover for
such subsequent work on a quantum meruit^ as it is not done under the
contract."
722. Unless Power or Right is Reserved, Owner Cannot Terminate
Contract without Consent of Contractor. — If the power to rescind be not
reserved in the contract, the owner cannot rescind when the contractor's
failure to perform is only partial, leaving a distinct part subsisting and
executed, and leaving the owner his action for damages for the part not
performed.'
As to what is only a partial failure, or what is a sufficient departure from
the terms of the contract to entitle the owner to declare the contract broken,
is a question about which the courts are not agreed. The language of the
books does not help one much, the authorities usually being content with
saying that the breach must go " to the root " of the contract or to its
*^ essence." The acts of the contractor must amount to a breach on his
part, and the mere nonperformance of some condition, which does not go
to the root of the contract, is not sufficient ground for a rescission by the
owner.* When work was to be done in a workmanlike manner, it was held
that the owner might terminate the contract if it were not done so and with-
out regard to the intention of the contractor.' *
Under a provision that the city may enter and complete the contract if
the contractor " shall fail in any part of his undertaking," a statement from
the contractor that, unless his claim for extra work is allowed, he will not
* Bernz v. Marcus- Sayre Co. (N. J.), 30 Supp. 325.
Atl. Rep. 21, reversing 26 Atl. Rep. 911; • O'Reily «. Kerns. 52 Pa. St. 214 [18661
semble. Walker v. London & N. W. R. Co. ' Bnree v. Cedar Rapids, etc., R. Co.. 32
(Eng.), 1 C. P. D. 518, 36 L. T. Rep. 53 Iowa 101; and see Clark v. United States,
[1876]. 6 Wall. 543 [1867J.
» 21 Amer. & Eng. Ency. Law 46, note. » Swobe v. New Omaba T. H. Elec. Lt.
» Crane v. Pier, 43 N. J. Eq. 553 Co. (Neb.). 58 N. W. Rep. 181. '
* United States v. Maloney, 4 App. D. ' Feinberg v. Weiher, 19 N. Y. Supp.
C. 505. 215.
» Beecher v. Schubatk (Sup.), 37 N. Y.
* See Sees. 681-680 and 697-702, mpra.
664 ENGINEERINO AND ABCHITECTURAL JURISPRUDENCE. [§ 723.
proceed, will not justify the city in terminating the contract on disallow-
ance of the claim, when it knows that the contractor is still prosecuting the
work, and has told the city's engineer that he would not quit till he had
obtained legal advice, and consulted with his bondsmen/
723. Power to Terminate Contract must be Exercised in Time and
Manner Required. — As explained before, the occurrence of the event de-
scribed, as the certificate of the engineer that the contractor has failed,
etc., does not render the contract void, but only voidable. The power is
discretionary and may be waived, if it be not exercised at the proper time
and in the same manner required by the contract." The act is a judicial
one and must be performed in good faith. If left to the judgment of two
persons they must act jointly, and each must be informed independently
from his own investigation.' If in good faith, it will be binding, even
though on mistaken facts.* The power to establish a forfeiture or to
avoid a voidable contract must be exercised within a reasonable time and in
a lawful manner.^ The question as to what is a reasonable time is usually
a question for a jury, though the delay may be so long that the court will
decide it.' To avoid a waiver of the right to rescind or determine the con-
tract requires the highest care and descretion on the part of the engineer
in the prompt performance of his duties.
724. Eight must be Exercised before the Time for Completion has
Elapsed. — Under stipulations that "incase it appear to the engineer that
the work does not progress with sufficient speed or in a proper manner,"
then the company could annul the contract if it saw fit, or " should the con-
tractor fail to proceed with the work in the manner, and at a rate of prog-
ress required by the engineer, or to so maintain the said works as herein-
after mentioned to the satisfaction of the engineer, their contract shall at
the option of the company, but not otherwise, be considered void, etc.," it
has been held that the company must exercise its right to terminate the
contract within the time fixed for the performance of the contract, that is
before the day fixed in the contract for full completion of the works.*
The courts generally hold that upon a true construction of the clause
providing for a forfeiture of contractor's rights under his contract, if he did
not well and truly perform his contract and make the progress necessary to
complete it within the tijne stipulated, they can only be acted upon and en-
forced before the time for completion of the works had expired.*
' Sewer Com'rs of Amsterdam «. Sulli- ' 21 Amcr. & En?. Ency. Law 82; hut
vnn (Sup.). 42 N. Y. Sunp. 858. see Bacon v. Green (Fla.), 18 So. Rep. 870.
2 Randel v. Chesp. & Del. Canal Co., "^ Henderson Bdire. Co v. O'Connor
%upra. (Kv.). 11 S. W R'p. 18 [1889]; Walkers.
3 Benson v. Miller (Minn.), 57 N. W. London «& N. W. R. Co , 36 L. T. Repts.
Rep. 943. 53 [l^'^T
4 Culbertson v. Ellis. 6 McLane 248: P. « talker « London & N.W. R. Co.,L. R.
W. & B. R. Co. r Howard. 13 How. 307. 1 C. P. D. 518 [1876]: Er parte Newitt. 16
» Randel v. Chesp. & Del. Canal Co., Cli. Di v. 522; Henderson Bdjre. Co. c.O'Con-
:iupra. nor (Ky. ). 11 S. W. Rep. 18 [1889] ; Roberts
§ 724.] CONTRACT STIPULATIONS. 666
The courts hold that the object of this stipulation is merely to secure a
better guaranty of a seasonable performance within the time fixed, and that
time having passed, it is no longer in force.'
If the date of completion has been allowed to pass without exercising
that power, a later notice by the company to the contractors that it elects to
annul the contract under the stipulation is not valid and will not enable it
to escape ita obligations.'' The courts have distinguished between a clause
conferring on the engineer the power to employ such men and teams and
procure such materials as may be necessary to complete the work by th^
day named for completion, and a clause conferring such powers without
any restriction as to time; they have held that the powers conferred could be
exercised under the latter clause after the time for completion or the exten-
sion thereof had passed.'
The English courts hold that such a clause clearly makes time the
essence of the contract, as it is only with reference to the time of com-
pletion that the rate of progress can be determined. If the time of com-
pletion has passed, there may have been a new agreement implied to com-
plete in a reasonable time, but to give the clause in question any applica-
tion to a reasonable time after the time originally fixed has expired would be
to make the company a judge in its own cause of what was a reasonable
time, and enable it in its own favor to avail itself of a most stringent and
penal clause.*
What the court says may be true, but the consequences of such a rule
may work equal injustice upon the company or owner who has indulged the
contractor and permitted him to continue after his time was up. If ad-
vantage cannot be taken of the clauses reserving the right to annul the
contract or to employ others to complete the works, it may be inquired
what is the company or owner to do under such circumstances. The con-
tractor is guilty of a breach of his covenants, but if it cannot be said to go
to the essence of his contract, he may with impunity continue to delay the
work to the great annoyance and expense of the company. The whole
trouble, of course, may be avoided by indorsing upon the contract an ex-
tension of the time of completion and before the time for performance has
expired, and expressly providing in the agreement for the extension of the
time that all the conditions and stipulations of the original contract shall
remain in force as before.
V Bury Imp. Co., L. R. 4 C. P. 755, dis- ' Henderson Edge. Co. v. Connor (Ky.),
anguished; Flynn v. Des Momes, etc., R. 11 S. W. Rep. 18 [1889].
Co 63 Iowa 491 [1884]; Cummings v. * Walker v. London & N. W. R. Co., 36
Penre find. App.), 27 K E. Rep. 631 L. T Repts. 53 [1876]; and see 'ULnrphy v.
[1891]: Linoli « Paris Lumb. Co., 80 Tex. Buckman. 66 If Y. 297 [1876], and Fal-
23; semble. Murphy v. Buckman, 66 N. Y. Ion v Lawler, 102 N. Y. 228.
297 [1876]; Paddocks. Stout (111.), 13N. E. » Mangan v. Windsor (Ont), 24 0nt. 675
Rep. 182 [1887]; and see Van Stone «. Still- [1894].
well, etc., Co.. 12 Sup. Ct. Rep. 181; Jen- * talker v. London & K W. R. Co., 36
nings V. Brighton Bd., 4 De G. J. & S. 735, L. T. Repts. 53 [1876].
noU.
666 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§725.
If the engineer in pursuance of another clause in the contract has ex-
tended the time for completing the work, it seems that the company can-
not exercise the po\\fer reserved ''to take the works away from the con-
tractor in the event of the work being delayed by him " for the reason that
the works were delayed during the extended period, or on the ground that
they were not finished.*
A stipulation in a contract that if the contractor "shall not from time to
fime truly perform all his obligations," one of which was to complete the
work by a certain time, the engineer should have power to dismiss him, by
which act the contract should become annulled and all sums due be for-
feited, was held to have no reference to the obligation to complete the work
by the time fixed, but to refer only to failures to perform during the prog-
ress of the work, which shows the propriety of inserting a provision for
noncompletion within the time limit.'
These and the following case show how dangerous to the validity of the
stipulation it is to permit the time for completion to pass without exercis-
ing the power to terminate the contract, or perhaps, better still, requiring
the contractor to execute a new agreement extending the time for comple-
tion and preserving all the other terms of the original contract. If the con-
tract provide that the contractor shall have ten days* notice before the con-
tract is terminated or other men employed, it has been held that then the
company or its engineer must avail themselves of the privilege ten days
before the time for completion of the contract.*
From what precedes it must not be taken that a waiver of the provision
as to time of completion is a waiver of all the other features and stipulations
of the contract, for it has been held to the contrary.* The owner must not
have accepted the work as completed.
725. Provision that Extension of Time of Completion shall not be a Waiver
of Right of Owner to Terminate Contract for Cause.
Clause: "But neither the extension of the time, for any reason,
beyond the date fixed for completion of the work, nor the doing and
acceptance of any part of the work called for by the terms of this
contract, subsequent to the said date, shall be deemed to be a waiver by
the said commissioner of the right to abrogate, annul, or terminate this
contract for abandonment or delay, in the manner provided for (in the
paragraph or article marked [Sees. 710-717] ) in this agreement."
726. Failure to Exercise Power in Time may Amount to a Waiver of the
Right to Terminate. — If no mention is made of the progress of the work or
of its connection with the time of completion, but it simply provides that
if the contractor shall fail to comply with the contract terms the owner may
avoid the contract and sue for damages, the owner must act promptly when
» Mohan t>. Dundalk, N. & G. Ry. Co., ^ Jacksonville «fe A. R. Co. v. Wood-
6 L. R. Ir. 477 [1881]. worth (Fla.), 8 So. Rep. 177 [1890] ; and
' Cannon v. Wildmanj 28 Conn. 490. see Hayes v. 2d Bap. Ch., 3 West Rep.
^ Grant et al. v. Savannah Co., 51 Ga. 348 83.
[1874J.
§ 726.] CONTRACT STIPULATIONS. 667
the cause for terminating the contract arises, for if he fail to declare it for-
feited at the time, or within a reasonable time thereafter, he may be held to
have waived his right to do so.* Acceptance of work and payment, there-
fore, after the expiration of the completion, has been held to amount to
a waiver of the right to rescind the contract."
When the owner neglects to declare tlie contract forfeited as authorized
and permits the contractor to continue with the performance of its terms
without requiring a new agreement, he is supposed to have waived the right
to an absolute performance, and to have excused the contractor's failure, and
to have consented to remaiu liable on his covenant to pay the contract price,
less any damages he may have suffered by reason of the contractor's
failure." * If the company neglect to declare the contract forfeited and per-
mits the surety to complete the work, the latter can recover the balance of
the contract price and the costs of his action to recover it.* Even when the
contract provided that time should be of the essence thereof and that a fail-
ure to perform all its conditions within the time limited for completion
should defeat any right to recover for labor performed thereunder, and that
the agreement should not be altered except by a writing signed by both par-
ties, it was held that the provision was not a defense to an action to recover
the price of the work, where the contractor had been allowed to continue
after the day fixed for its completion.'
Subsequent agreements to complete the work or to do additional work
upon the same job for extra pay, made after the time for completion has
passed, may amount to a waiver of the original stipulation to complete by a
certain time." A letter to a contractor in which the owner declares that
*' whenever the rolls shall do satisfactory work I will be ready to pay for
them," has been held to amount to a waiver of a full performance and to give
the contractor a reasonable time to complete the work.' \
When the stipulation as to the time has been waived, it is eliminated from
the contract and therefore relieves the contractor from stipulated liquidated
damages for noncompletion within the time specified/ % The waiver estab-
> Linch '0. Paris L. & G. E. Co. (Tex.), P. D. 518; Marsden v. Sambell, 28 W. R.
15 S. W. Rep. 208 [1891] ; Phillips, etc., 952.
Co. V. Seymour, 91 U. S. 646 [1875] ; Ran- ^ Bd. of Ed. v. Ist. Nat. Bk. (Sup.), 24
del V. Chesp. & Del. Canal Co., 1 Har. N. Y, Supp. 392; and see Rose «. Tresti ail,
(Del.) 238 ; and see also Art. Drainage Co. 1 Mo. App. Rep. 540.
1). Dist. Board. 6 L. R. Ir. 515 [1881]; ^ Dxmn v. Steubing (N. Y.), 24 N. E.
Board of Ed. v. 1st Nat. Bk., 24 N. Y. Rep. 315 [1890], affirming 55 N:Y Super.
Supp. 392. Ct. 533, and citing numerous cnses; and see
"Henderson v. Bdge. Co. v. O'Connor, Hutchinson ??. New Sliaron C. V. & E. Ry.
fiupra; semble. Paddock v. Stout (111.), 13 Co., 63 Iowa 727 [1884].
N. E. Rep. 182 [1887]. « Cornish v. Suydam (Ala.), 13 So. Rep.
» Phillips & Colby Constn. Co. v. Sey- 118; see Fallon v. Lawler, 102 N. Y. 228.
mofur, 91 U.S. 646 [1875]; an<f see Murphy 'Van Stone v. Slillwell, etc, Co., 13
V. Buckman, 66 N. Y. 297 [1876] ; Fowlds Sup. Ct. Rep 181.
V. Evans (Minn.l. 54 N W. Rep. 743; Wal- « Flynn tj. Des Moi«es R. Co., 63 Iowa
ker V. Loud & N. W. Ry. Co., L. R. 1 C. 491 [1884].
* See Sec. 326, supra. f -^^^ Sees. 308-311, supra. X See Sees. 323-326, supra.
668 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 727.
lished, the contractor may then have an action for the contract price, includ-
ing the percentage retained as liquidated damages for nonperformance within
the stated time, and the owner must show any injury he has suffered if he
will retain damages out of what is due the contractor or recoup them from
what he has paid.* The waiver does not amount to a waiver of the dam-
ages actually suffered by the owner from the contractor's failure to per-
form by the day specified, nor prevent the owner from recouping such dam-
ages," even though he has not expressed his disapproval or dissatisfaction.' *
Under a contract clause providing that, " In case the said contractor
shall not well and truly, from time to time, comply with, and perform, all
the terms herein mentioned, or in case it shall appear to the said engineer
that the work does not progress with sufficient speed, or in a proper manner^
or in case of interference with said work by legal proceedings instituted
against the contractor by other parties than the said company, the said
engineer shall have power to annul this contract if he sees fit so to do, by
giving notice, etc.," the time for completion of the work expired before the
contractor had finished the work, but the company did not exercise its right
to annul the contract by reason of such failure ; but about six weeks there-
after, when the contractor- had abandoned the work entirely, the engineer
took the necessary steps and declared the contract annulled. Under these
conditions and circumstances it was held that the failure of the company to
annul the contract within the prescribed time was not a waiver of its right
to subsequently annul it when the contractor had abandoned the work alto-
gether." Whether it was the utter abandonment of the work by the con-
tractor that distinguished it from other cases, or it is a decision in conflict
with the other cases cited, cannot be gathered from the report.
The waiver of a stipulation is not to be implied from the silence of one
who is under no obligation to speak. The intention to waive a right must be
usually established by language or conduct, and not by mere conjecture or
speculation.^
727. Right to Terminate Contract Reserved if Work is not Completed by
Specified Time. — It is frequently agreed that the failure to complete works
by a specified time shall be a reason for annulment of the contract by the
owner,* but in every such instance the terms of the settlement or agreed
liquidated damages should be expressly stated in the contract, and in no
uncertain language. If the contract merely provide that it may be can-
' Homan v. Steele, 18 Nebr. 652 [18861 ; ' Oberlies«. Bullingen (Snp.). 27 N. Y.
Cummings v. Pence (Ind. App.), 27 N. E. Supp. 19.
liep. 631 [1891]; Aiken v. Bloodgood, 12 ^EHzabetlitown & P. E. Co. v. Geocrhe-
Ala. 221 [1847] : Flynn v. Des Moines. gan and others. 9 Bush (Kj.) 56 [1875]
etc., R Co., 63 Iowa 491 [1884]. 5 Xexns & St. L. Ry. Co v. Rust, 19 Fed.
2 Barber v. Rose. 5 Hill (N. Y.) 36 Rep. 239 [1883].
[1848]; Cummings v. Pence (Ind. App.), 27 * Cunningham v Illinois Cent R. Co., 77
N. E. Rep. 631 [1891] ; Grannis & Co. v. 111. 178 [1875].
Deeves (Sup.), 25 K Y. Supp. 375.
* iS«e Sees. 317 and 700-704, sw^jra.
§ 728.] CONTRACT STIPULATIONS, 669
celed, and that thereupon both parties shall be absolved from any liability
thereunder to one another, it will apply only to the executory parts of the
contract, and will not give to the owner any right to recover back moneys
he has paid under the contract.' If the rescission has been effected by a
subsequent agreement made while the work was in progress and after part
performance, all claims in respect of work done, or of what has been paid or
received under the contract must be referred to the agreement of rescission,
and in general no claims can be made unless expressly or impliedly reserved
in the rescission." From which it will be seen the necessity of embodying
every condition and every term of a settlement in the new agreement when
the contract is rescinded.
When work is not going to be completed by the time required by the con-
tract, the failure of the contractor should not be allowed tr pass unnoticed,
and the contractor permitted to continue his work as if nothing had
happened. If the right reserved to the company to declare the contract at
an end is not to be exercised, a new time limit should be agreed upon and
indorsed upon the contract,* with any other conditions agreed upon,
including an express agreement that each and every other condition and
stipulation of the original contract shall remain in force; then and only
then does the owner reserve to himself the rights and protection which the
original contract afforded him.
An extension of time for doing a public work, granted after the expira-
tion of the time for its completion, has been held invalid; ' but it seems that it
need not be indorsed upon the contract before the expiration of the time
originally fixed for completion of the work.*
728. Measure of Recovery by Contractor when Contract has been An-
nulled under a Provision Reserving that Right. — As has been shown in the
clauses given, it is customary to fix the damages to be assessed in case of
rescission in the contract clause giving the power to terminate the contract,
and the discussion of the subject under such a stipulation is postponed to
a subsequent section.f
If the amount of damage be not fixed by the terms of the contract of
1 Mengis v. Fifth Ave. R. Co., 30 N. Y. (N. Y.) 284.
Supp. 999. » Wood V. Brady, 14 Sup. Ct. Rep. 6.
'■' Leake's Digest of Contracts, 788-9, *Buckman v. Landers (Cal.), 48 Pac.
and p. 73; De Peyster v. Pulver, 3 Barb. Rep. 1125.
* " For and in consideration of one dollar in band paid, by the contractor, the time
for the completion of tlie within contract is iiereby extended to the day of
189.., it being expressly agreed and understood that each and every other
part, provision and stipulation therein contained shall continue in force as in tlie original
contract, except that in regard to the time for completion, which is changed as herein
described."
Dated 189..,
at
f See Sees. 727, supra, and 740, 743-745, infra.
670 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 728.
rescission, then the measure of recovery is that which gives to the contractor
the reasonable value of his work and materials, less any damages or losses that
the owner has suffered in consequence of the contractor's delay, incapacity,
or failure to carry out his contract/ In Massachusetts the contractor may
recover the actual benefit he has conferred independent of the terms of the
contract, if the contract has been terminated in any other way than by the
voluntary refusal of the contractor to perform his part.' Other cases hold
that the contractor is entitled to recover the contract price, less what it
costs the owner to complete the works.' If the work has been paid for by
installments, and the last payment only is due and unpaid, the owner is
only liable for the excess of the amount of the last payment over the cost
of completion.* The contractor can recover this excess, without the certifi-
cate of the architect that it is due, even though the contract did provide
that the last payment should be made on the certificate of the architect.
The act of the owner in taking the work away from the contractor and
completing it himself having the effect of preventing the contractor from
executing such a condition precedent. It seems that the contractor should
in his complaint aver that the engineer's certificate was unreasonably with-
held/* The fact that the owner, in completing the building, departed
from the plans by introducing additional work makes no difference when the
contract provided for alterations in the plans, and it was not shown that
such changes were made in a bad manner.*
In fact, the same diversity of opinion is expressed and the same rules,
applied to cases where the owner is authorized to terminate the contract
for causes agreed upon between the parties beforehand, as has been applied
to cases where the parties have been guilty of an actual breach of the con-
tract, f
If the work is to be paid for in installments at certain stages of the
work, and it provides that if the contractor shall fail to furnish suffi-
cient materials and workmen, the owner may proceed with the work and
deduct the expenses from the contract price, the fact that the contractor is
dilatory from the beginning does not prevent him from recovering the
installments fully earned. If the owner has acquiesced in the delay up to
the time the installment became due, he cannot then get rid of paying
by terminating the contract, as for breach thereof.' Prospective profits may
' Lyinan « City of Lincoln (Neb.), 57 Blythe ^. Poultney, 31 Cal. 233.
N. W. Rep. 531; and see Hewlett v. Alex- * Beardsley v. Cook (N. Y. App.), 38 N.
ander (Ala.). 6 So. Rep. 49 [18891. E Rep. 109; Weeks v. O'Brien (K Y.
2 Fitzgerald «. Allen, 128 Mass. 232 App.). 36 N. E. Rep. 185.
[1880]; hut see an earlier case, Hennesey * Weeks?). O'Brien (N. Y. App.), 36 N.
v. Farrell, 4 Cush. 268 [1849]. E Rep. 185.
2 Wells V. Board of Ed. (Mich.), 44 N. •Zimmerman v. Jourgensen (Sup.), 24
W. Rep. 267; Hampson v. Lewis, 49 Md. N". Y. Siipp. 170.
178; Murphy v. Buckman. 66 N". Y. 297; ' Smith v. Corn (Com. PL), 23 N. Y.
hut see Hammond v. Miller, 2 Mackey 145; Supp. 326.
* See Sec. 397, et seg., supra, and Sec. 745, infra. f See Sees. 681-696, supra.
§ 730.] CONTRACT STIPULATIONS. 671
be recovered by the contractor if the power to annul is used to oppress the
■contractor and defeat his rights under the contract.'
729. Damages Fixed in the Clause Giving Power to Avoid Contract. —
In the same clause that gives the company or owner or its [his] engineer
authority to terminate the contract or to employ others to hasten the com-
pletion of the work, it is usual to provide for the forfeiture to the company
-of any balance due and unpaid to the contractor as liquidated damages.
The following language is frequently employed :
" And in the event of any such determination by the engineer or
owner, it is further expressly agreed that this agreement in its entirety
shall become null and void, and any balance due to the contractor in
any form whatever shall be forfeited to the owner as liquidated dam-
ages."
Or
"In which case the unpaid part of the value of the work done shall
be forfeited to the company in the nature of liquidated damages. " *
Such provisions are required to secure to the owner or company pro-
tection and the means to make good the deficiencies and omissions of the
contractor, and to compensate in a degree for the delay and trouble occa-
sioned by his neglect or failure to live up to his agreements. It has been
shown that without such a provision the owner will be confined to the actual
•damages visible and that he can account to a court. Without it the contractor
can recover not only the percentage reserved to complete the work which may
grow more difficult as it advances, but he may also recover any penalty or
forfeiture named in the contract which he can show the owner has not
actually suffered, f
730. Contract should be Interpreted by a Study of All the Clauses of the
Contract — These clauses are construed according to the evident intention of
the parties, and will include only such sums or balances as the parties mani-
festly intended. This intention will not be determined from this clause
:alone, but reference will be had to other clauses, and the intention of the
parties will be ascertained from their situation and the whole scope of the
•contract.'' Therefore, when it is stipulated in one part of the contract that
"the engineer "shall make monthly estimates of the work done and materials
delivered, and shall give a certificate of the same, upon the presentation of
which, monthly payments of 90 per cent, of the certificate shall be made/'
and in another part of the contract it provides that '* if the contractor
shall not on his part well and truly perform all the covenants therein con-
tained that the engineer may dismiss him from the work, in which event.
iPhiln., etc., R. Co. v. Howard, 13 2 Ricker d. Fairbanks, 40 Me. 43 [1855].
How. 307.
* For other stipulations see Sees. 290, 311-314a, and 710-717, supra, and 740-741 and
743-744." infra.
\ See Sees. 317-320, supra.
672 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§730^
the contract shall become duU and void, and any balance for work done on.
said works which would have been due the said contractor shall be forfeited
and become the right and property of the corporation," it was held that the-
termination of the contract by the engineer did not relieve the company
from the payment of the 90 per cent, fund to be due from it prior to such
determination by the engineer/
Under similar circumstances and under a contract stipulation that " the
unpaid part of the value of the work done shall be forfeited by the con-
tractor to the use of the company in the nature of liquidated damages," it
was held that the company could withhold only the per centage reserved from
the monthly estimates, and it did not authorize it to retain the entire value
of work done since the last estimate.' The company was required to
account for the actual value of the work done, less the per centage reserved,
not alone upon the phraseology of the stipulation, but because it would
permit the company under the guise of withholding liquidating damages
to inflict a penalty.
The court said:
" It is obvious from the situation of the parties, as well as from the
whole scope of the contract itself, that it was intended that the 90 per cent,
stipulated to be paid monthly should be so applied as to enable the con-
tractor to prosecute and complete the work for which he had contracted..
The construction contended for would put it in the power of the company
to embarrass the contractor by withholding his monthly payments, and
then, in case he, by reason of such embarrassment, should fail to progress
with the work with sufficient rapidity, by their engineer to determine that
the work had been abandoned, and any balanqe due the contractor, however
large, forfeited. A construction which should offer so large a premium for
wrong-doing should not be adopted unless the language used will admit of
no other reasonable explanation. SuDh explanation may be had by exclud-
ing the monthly estimates after they become due from the operation of that,
provision." This was held to be a fair construction of the contract when all
its provisions were considered." This construction has not been applied
universally to this clause. An early Massachusetts case is quite to the con-
trary. Under a clause which recited that " If at any time it should appear
to the engineer that the work was not carried on with sufficient rapidity,.
and is not likely to be completed within the time specified, the company
may employ other help, at the expense of the contractor, and in the event
of any such determination the agreement between the parties shall become
null and void, and any balance due the contractor shall be forfeited to he
1 Ricker v. Fairbanks. 40 Me. 43 [1855]; ^n, 9 Bush (Ky.), 56 [1875]; Geisrer v. The
Williams v. Androscoggin & K. R. Co., 36 W. Md. Ry Co., 41 Md. 4 [1874^]; and se&
Me. 201; Smith v. Corn, 23 N. Y. Siipp. King d. Mahaska Co. (la.), 39 N. W. Rep.
326; Phila. etc., R. Co. v. Howard, 13 636 [1888].
How. 307. 8 Kicker «. Fairbanks, 40 Me. 43 [1855].
» Elizabethtown & P. R. Co. v. Geogbe-
§ 731.] CONTRACT STIPULATIONS. 673
company;", the contractor having worked a part of a month after the last
estimate, it was held that the value of this work done was forfeited, ns well
as the percentage reserved, and that the contractor could recover neither of
them; that by the terms of the agreement it was entire for each month,,
and that unless the work was continued to the end of the month he was not
entitled to have an estimate by the engineer; that nothing had been earned
as to the part of the month's work not completed.'
If the covenant to finish the work by a certain day by the contractor
and the covenant to pay money by the company are distinct and indepen-
dent, the right to annul the contract at any time is held not to include a
right to forfeit the earnings of the contractor for work done prior to th&
time the contract was annulled.'
If the percentage retained be not designated as liquidated damages, or the
court does not regard it as such without such designation, it may be
recovered by the contractor, less any actual damage shown by the owner.*
It is therefore customary and prudent to designate the percentage reserved
as liquidating damages, to forestall any claims by the contractor that it is of
the nature of a penalty.*
731. To Ketain Liquidated Damages, the Discretion to Terminate Con-
tract Must have been Properly Exercised, f — If the engineer and company
or owner have properly exercised the discretion given by the contract, it is
well settled that the contractor cannot recover the percentage that has been
kept back to secure the completion of the work, but it is to be regarded as
liquidated damages, and if the contract has provided that it shall be for-
feited to the owner, or that the act of termination shall exonerate or absolve
the owner from every obligation arising out of the contract, then the con-
tractor can have no recovery of the said percentage.' If the power to declare
the contract terminated has not been exercised properly, the percentage may
be recovered in assumpsit on the common counts for work and labor."
Whether that discretion has been properly exercised is a subject for
proof and inquiry.' If the contractors abandon the work, the percentage
retained never becomes due, and there is nothing to which a materialman's
lien can attach if filed after the abandonment.®
'Hennesey v. Farrell, 4 Cush. 268 (Ky.) 56 [18751.
[1849]. These cases represent opposite " Easton «. Penna. & Ohio Canal Co., 13^
views of the law, and the latter one is be- Ohio 79 [1844]; Elizabeth town & P. R.
lieved to be the exception to the more Co. v. Geoghegan, 9 Bush (Ky. * 56 [187.'>].
general rule of the previous cases. « Quinn v. United States, 99 U. S. 30
'^ The Phila. . W. «fe B. R. Co. v. Seber [1878].
Howard, 13 How. Repts. 307. Hence the ' Easton v. Penna. & Ohio Cannl Co.,
necessity of making the covenant to pay supra; semble. Jay v. S. E. Ry. Co., Week-
subject to each and every stipulation of ly Notes, 1873, p. 4; White v. Harrigan,
the contract. 41 Minn, 414.
* Easton v. the Penna. & Ohio Canal « j^elly v. Bloomingdale (N. Y. App.L
Co.. 13 Ohio 79. 34 N. E. Rep. 919.
* E. P. R. Co. V. Geoghegan, 9 Bush.
* See Sees. 314-325, supra, Liquidated Dnmagcs. f See Sec. 323, supra.
-674 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 731.
When the contract provides that: *' If the contractor shall neglect or
refuse, after notice, to proceed with the work as fast as, in the opinion of the
engineer, it is necessary to secure its completion within the time specified,
then the company may employ other parties to execute any part of the work
and charge the cost of the same to the contractor, to be reduced out of the
retained percentages, or out of any payments that shall have become due to
any subsequent estimate,'' it is held that the company was not limited to the
amount due the contractor and in their hands, for the cost of executing a
part of the work, but that the contractor was liable to reimburse the com-
pany for what they spent above that amount/
For the contractor to recover the balance of the contract price left after
-completing work by owner, it has been held that he (the contractor) must
prove the cost of completion, and that the opinions of experts as to what
would have been a reasonable amount to complete the work were not admis-
sible.' * In another case, where the contractor had alleged or claimed to have
completed the contract, but the company claimed otherwise, it having com-
pleted the work to the satisfaction of its officers with its own workmen and
teams, it was held that the company must show tlie amount and value of
work completed, and what was left incomplete by tlie contractor, as well as
that done by the company according to the terms of the contract, in order
DO establish a counterclaim against the percentage reserved, and that the
amount could not be based upon the opinions of engineers and experts of
what it would cost to reconstruct and restore certain parts of the work, the
^ame having been estimated and accepted as complete by the engineers in
charge.'
The courts have sometimes held that such a provision in a building con-
i;ract authorizing the owner, '* after notice to the contractor, to take the
work into his own hands and complete it at his own expense if the contractor
failed to proceed with due diligence," is to be regarded when acted upon as
a remedy agreed upon as a substitute for future damages.*! Other cases
hold that the act of the owner in taking the work away from the contractor,
tinder a clause authorizing him so to do, and to charge the contractor with
the expense of completing it, amounts to a waiver of his right to claim dam-
ages in pursuance of another clause giving a certain sum as liquidating
damages for each and every day's delay after the date fixed for completion.'
'Lnngrlon v. Nortbfield (Minn.), 44 N. nn engineer to estimate the qunntities and
"W. Rep. 984 ; semble, Yeomans v. Parker keep an account of the company's force
(Mich.), 63 N. W. Rep. 316; Jackson v. employed.— Ed.
< levehmd, 19 Wis. 400 ; Hampson v. Lewis, ^ Price v. Kearney. C.& W. S. Co. (Neb.),
49 Md. 178. 45 N. W. Rep. 252 [1890].
''Z'mmcrman v. Jourgensen, 14 N. Y. ■*0'Connor«. Henderson Bdge. Co. (Ky.),
Supp. 548 [1891] ; and see Scammon v. 27 8. W. Rep. 251 ; and see Friedland v.
Davis, 72 Cal. 393; Beecher v. Schuback McNeil, 33 Mich. 40 [1875].
(Sup.), 37 N. Y. Snpp. 325. In such a * Crawford «. Becker, 13 Hun 375 [1878];
<;ase a contractor would do well to employ Murphy v. Bnckmau, 66 N". Y. 297 ri876|.
* See Sec. 738, infra. f See Sec. 825, supra.
§ 734.] CONTRACT STIPULATIONS. 675
732. Decisions are Inconsistent. — These cases, with thos» that precede
(Sec. 726), present the interesting aspect of the owner being held to
have waived the stipulation for liquidated damages in either case whether
he exercises the privilege of declaring the contract annuled or not. The
latter cases liold that if he declare the contract terminated, he thereby waives
his right to stipulated damages, and the cases cited in the previous section
hold that if he fails to exercise that power before the time of completion has
expired, he will be held to have waived his right to stipulated damages for
the contractor's failure. One of the curious anomalies that occur in the
law.
733. Power to Annul Contract may be Lost by Waiver or Failure to do
His Part. — The right to annul a contract for nonperformance of its terms by
a contractor is a right that may be lost to the owner if he is himself in
default. His failure to estimate, and pay for work done, and materials fur-
nished, as provided and required by the terms of the contract, will prevent
him from taking advantage of the contractor's failure to carry out his agree-
ments.'
734. Contractors Delayed by Incompetent and Delinquent Engineers.* — If^
therefore, the company or their engineer have impeded the progress or regu-
lar course of construction, the contractor is not liable for a breach of hi»
agreement to complete the works by a certain time.^
The right to terminate the contract may, however, be so strengthened by
other provisions, and the contractor have so far forsworn his rights and th&
adjudication of them that the foregoing rule will have no application, as
when the contract provided that "the contractor should employ such a force-
of workmen as the engineer might deem adequate to the completion of the-
work within the time fixed," and further provided, "that if he did riot em-
ploy such a force as the engineer might thus deem adequate, that the engi-
neer might employ such number of workmen as, in his judgment, would be
necessary, and at such wages as he might find necessary and expedient, pay
all such workmen, and charge the contractor with the amount expended as
so much money paid to them on their contract"; and further provided, that
the engineer should " have power to annul the contract upon written notice
to the contractor if, in his judgment, the work was not prosecuted by him
in a proper manner, and with sufficient speed," and still further, " that upon
thirty day's notice to the contractor, the company might at any time, without
cause, annul the contract," in which case they were to pay for the work done
up to the time of the annulment, and the right was also reserved to the
engineer " to order, in writing, any modifications or alterations in the speci-
' O'Connor v. Henderson Edge. Co. 'M'Intosh d. Gt. Western R. Co , 14 M.
(Ky.), 27 S. W. Rep 251 ; casea collected, & W. 548 -/and oilier cases cited in Gode-
21 Amer. & Eng. Ency. Law 77 ; Roberts froi & Short's Law of Ry. Cos., p. 93.
V. Bury Com'rs, L. R. 5 C. P. 310.
* See Slc. 421, supra.
676 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 734.
fications, profiles, and plans, and in like manner to direct or order an omis-
:8ion of any portions of the work mentioned in the specifications, or to sub-
stitute any other work for such portions." The discretion of the engineer
was practically unlimited, and the work being delayed, the company took
•charge of the work against the will of the contractor, and prosecuted the
«ame to completion. The contractor brought an action to recover, for extra
work, the balance due on underestimates of the engineer, damages and profits
whicli he would have made, charging and proving that the work was greatly
interfered with and delayed on account of an insufiicient number, incompe-
tence, and negligence of the company's engineers ; that the prosecution and
completion of the work was delayed by the failure to secure the right of way,
^nd. by failure of the engineers to furnish the proper stakes and lines, to
locate bridged and culverts, and he further proved that he could and would
have completed the work within the time limit, if he had not been hindered
and delayed by the fault, negligence, insufficiency, and incompetence of
the company's engineers. The engineers' estimate of the quality, charac-
ter, and value of the work was by the contract made final and conclusive
•without further recourse or appeal.
Under the English law,there could be but one way to decide this case,
-which was to hold the contractor strictly to his agreement as set forth in
the contract, and by which the company had undisputed authority to ter-
minate the contract at its pleasure, and by which the contractor was bound
to abide by the decision of the engineer.*
An American case, the facts of which were very similar and the stipula-
tion almost as stringent, and in which the contractor proved that the prog-
ress of the work had been delayed by failure on the part of the con*pany to
secure the right of way and by its inability to pay the monthly estimates,
held that the engineer [company] had the right to annul the contract, and that
the percentage reserved and the unpaid value of work was to be considered
liquidated damages. The question of damages to the contractor was net
^decided, he having actually resumed the work subsequently. It was held that
he had thereby waived any rights he may have had to damages, by reason of
the company's failure to secure right of way or to pay as agreed, in the con-
tract, and that these facts of the company's laches in no manner affected or
impaired the right of the engineer to annul the contract.'' The case further
held that evidence was inadmissible to prove that after the contract had
been annulled the subcontractor to whom the work was given did not pro-
ceed with any more dispatch than the work had progressed with the original
contractor, and furthermore that it was immaterial that after the annulment
and after the company had advertised for proposals to complete the work
^ Scott V. Liverpool, 31 Law Times 147 ' Geiger v. The W. Md. Ry. Co., 41 Md.
[1858] ; accord, E. Lancashire R. Co. v. 4 [1874].
Hattersley, 8 Hare 86.
^ 735.] CONTRACT STIPULATIONS. QTt
that the original contractors offered to do the work at the original prices
and to give security for its faithful performance.*
That the English case was decided upon the ground of the engineer's
•decision being final and conclusive seems clear, in view of another English
decision, which held that when the company had assumed the obligation to
secure the right of way and to furnish plans and instructions, a failure on
its part to provide the land required and the necessary drawings, thereby
rendering the execution of the contract impossible, discharged the con-
tractor from further performance and worked a waiver of the engineer's
notice complaining of the delay, which was necessary before the company
•conld take the work out of the contractor's hands." * A replication by the
•contractor that the company did not elect to take the work away from him
within a reasonable time after the expiration of seven days following the
engineer's notice, but permitted and encouraged him to continue the work,
nrhich he did, was held bad."
An Indiana case, decided upon very much the same facts and contract
stipulations, held that the engineers had exercised almost absolute authority
as the representatives of the company, and that the company should suffer
the loss occasioned by their mistakes and wrong-doings, rather than the con-
tractor.' It must be remembered, however, that the clauses of a construc-
tion contract giving the engineer the absolute and final determination of
questions is not in favor with the Indiana courts, as has been shown herein
before. On appeal the decision was sustained, but whether upon points
•of law or because the counsel for the appellant failed to follow the rules of
the Supreme Court is difficult to determine.* •
A discussion of these cases would carry us back to the legality and bind-
ing effect of the engineer's decision, a condition precedent to recovery, for
^hich the reader is referred to Chapters XII. and XIII. \
735. Notices should be Given by Contractors of Neglect or Failure on
Part of Owner. — Such decisions are forcible lessons to novices in construc-
tion work, but they have been drilled into contractors by sad experience.
Eternal vigilance should be the watchword with them, as well as with engi-
neers and architects. A contractor should acquaint himself with his rights,
:and promply recognize any hinderences or breach on the part of the com-*
pany or owner, and give notice to it [him] or its [his] authorized agents in a
•careful yet positive manner that he is delayed and put to unnecessary trouble
and expense by the company's neglect or failure to keep their agreements, and
that claims will be made for the damages and loss that are certain to result.
Such notices' should be skillfully drafted that no offense may be given, for a
1 Geiger v. The W. Md. Ry. Co.. 41 Md. negan (Ind.), 12 N. E. Rep. 153 [1887].
4 [1874]. * See remarks of the court in the dictum,
* Arterial Drainage Co. v. Rathangan D. Louisville, E. & St. L. Ry. Co. v. Donne*.
Board, 6 L. R. Ir. 515 [1881], gan, supra,
» Louisville, E. «& St. L. Ry. Co. v. Don-
♦ See Sees. 326, 689, and 731, mpra. \ Sees. 335-417, supra.
678 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 736.
contractor's success on a job often depends upon the good-will of th&
emploj^er and his engineers.
736. Authority to Engineer to Terminate Contract is not Always Power
to Hire Men and Purchase Materials. — In connection with the termination
of a construction contract and with the employment of other persons to
complete the work there has often arisen complications and misunderstand-
ings between the engineer in charge of the work and the persons employed
to complete it. It is an occasion for the contractor and employee to bear in
mind what has been said heretofore about the powers of the engineer tO'
create obligations upon the company. Forgetful or ignorant as to what his-
real powers are, the engineer undertakes to order materials and to employ
men, which he has no authority to do, and which acts may be repudiated by
the owner or company, leaving the workmen or contractor without compensa-
tion. An honest engineer will not assume to exercise powers nor a prudent
contractor undertake to carry out directions which are not duly and properly
authorized by the parties responsible, and the engineer must derive his-
authority from his employer either by the terms of the contract or by an
express agreement, of which the best evidence is a power of attorney, exe-
cuted by the owner or company. Cases are frequent where engineers have
asserted authority and pledged, in good faith, perhaps, the credit of their
employer, and which, not being ratified or adopted, left the contractor with-
out any remedy.
Whether a provision in a contract that " in case the work is not prosecuted
according to the contract and the directions of the engineer, he may upon
notice terminate the contract and employ others to complete it," is an
authority to purchase materials and employ men on its behalf, may well ba
doubted in view of decisions with regard to other stipulations.*
One case in point permitted the contractor to recover where the assistant
engineer upon a railroad in charge of construction of a section of the road, be-
coming dissatisfied with the contractor, dismissed him and assumed the work
himself, agreeing with the workmen to see them paid. He was regarded,
it appears from the case, by the court as the agent or representative of the
company in employing the workmen, but not to charge his company with
supplies furnished the contractors.* In another case for the constructioni
of a section of a canal, the contract was declared forfeited by the engineer,
and it was completed by other or post contractors at the request and upon
the promise of payment by the engineer. The trustees of the canal denied
that the canal was completed upon their request, and insisted that they were
not liable to pay for the cost of completion. The court held that an express
request need not be proved (for one may imply that it was not proved), but
that a request was implied by the circumstances, the trustees having passed
» Stiles V. Western Ry. Co., 1 Amer. Ry. Cas. 397 [18441.
*'8ee Sees. 370-380 and 553-559. supra.
§ 737.] CONTRACT STIPULATIONS. 67^
on order to the effect that they were anxious for the earliest possible com-
pletion after the contract had been relet and had accepted and used the
section after it had been completed.'
737. Terminating Contract should be an Act of Last Resort. — The re-
scinding or annulling of a contract under any of the foregoing clauses
should be the owner's or company's last resort in his [its] attempt to adjust
or settle controversies with the contractor. It is a step which cannot
be retraced and whose consequences cannot always be foretold. Arguments,
persuasion, coaxing, and threats, and almost every expedient should be em-
ployed to bring the contractor into line with the terms of his contract before
the final step is taken. Imprudent haste to annul the contract is almost
certain to be regretted, and every legitimate means should be employed to
keep the contract whole.
If stipulations are adopted in a contract providing for the termination
of the contract or for employing other parties to complete the work, the
rights and privileges of the parties should be explicitly defined. These
provisions should not only define the powers of the parties to terminate the
contract, but should carefully and fully describe the status of both parties
after the rescission, their rights, the damages assessed, and the use and ap-
propriation of the plant, etc., etc. If this be not done the company has no
protection after the rescission from the expensive litigation and trouble
which almost every clause of the contract is calculated to avoid. The situa-
tion, of the parties after rescission is that of the contractor having done work
for the company from which the company has derived benefit, and the law
implies a contract to pay therefor what it is reasonably worth, i.e., what a
jury may consider it worth, which may be reasonable and may be otherwise.
If the contractor has underestimated the cost of the job or has en-
countered unexpected difficulties, it may be expected that he will employ
every provocation to induce the company to terminate or rescind the con-
tract. Every device will be resorted to on his part to save himself from
loss, such as inferior materials, poor workmanship, delays, neglect and per-
haps abandonment. If good provisions have not been adopted for rescission,
abandonment by the contractor may be better for the company than for
them to exercise their power of annulment.
An illustration of the effect of a rescission of a contract is found in a
case in which a certain price had been agreed upon for excavations. Hard-
pan was met and the contractor claimed extra compensation for digging it,
which was allowed on a quantum meruit, but distinctly on the ground that
the ccntract having been rescinded the contractor was not limited to the
price fixed therein, nor was he bound by the decision of the engineer, but
allowed to recover the reasonable value of the work done.'
' Trustees of Wab. & Erie Canal v. ' The D. & H. Canal Co. -». Dubois, 15
Bledsoe, 5 Ind. 133 [1854]. Wend. 87 [1835].
680 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 738.
738. Provision that Owner or Engineer may Increase Working Force to
Insure Completion of Work. — So much uncertainty, trouble, and litigation
comes from the termination and rescission of a construction contract under
the preceding clauses that it is frequently omitted, and instead a provision
is made for augmenting the contractor's force by the owner or company
employing more mechanics, animals, and machinery, or by subletting parts
of the work (such parts of the work as the engineer may designate), to
other contractors, it being expressly provided that the cost of all labor, ma-
terials, and the expense of subcontracting shall be borne by the contractor,
and may be retained and deducted from whatever may be due to the con-
tractor; and further providing that all the stipulations of the original con-
tract that are not clearly inconsistent with such acts shall remain in force
between the owner and contractor, and, furthermore, that he will not in any
way, nor permit his employees, to interfere with or molest the said subcon-
tractors and employees of the owner in the discharge of their duties.
The author does not wish to commit himself to the recommendation of
this clause to the exclusion of the other, for as every engineer knows there
are many practical difficulties which it would be difficult to cover by contract
clauses. With the contractor in possession of the works, there is little doubt
but that he would be able to put many obstacles in the way of carrying
out such a programme. A practical solution of the difficulty might be found
in the incorporation of both stipulations, so that if the one for employing
other mechanics or subcontractors failed, the owner would yet have, as a last
resort, the annulment of the contract.
Without such a clause and when no time is fixed for the completion of
work, it seems the owner is not entitled to credit for wages voluntarily paid
to another to do part of the work the contractor had agreed to do.*
Some cases decided under the clause permitting owner to employ others
to complete work may be of interest. The owner must exercise his power
in good faith, and while he is allowed considerable discretion as to the
manner and means employed to finish the work, yet he cannot conduct the
work in an extravagant and wasteful manner. If he has been careless and
reckless in completing the work he cannot deduct the actual cost of com-
pletion from what is due the contractor, but only the reasonable cost.' * It
has been held that the owner could have defective work done by the con-
tractor repaired or rebuilt, and the cost of same charged to him,' even
though the contractor had offered to make good the defective work.* If
the contractor has provided suitable materials which are specially pre-
prepared for the works, the owner is in duty bound to use them, to save the
contractor the loss that would result if he had to sell them at a loss.'
' Wagner v. Jennings (Tex.), 27 S. W. * Powers v. Yonkers, 114 N. Y. 145.
Rep. 888. * Clifford v. Richardson, 18 Vt. 620.
2 Tautholt V. Ness, 35 Minn. 370. » Wells v. Bd. of Ed., 78 Mich. 260.
* See Sec. 'Jdl, supra.
§ 739.] CONTRACT STIPULATIONS. 681
If the contractor has abandoned the work or has led the owner to believe
that he has withdrawn from his contract by renouncing it, or by continuous
breaches/ the owner need not wait until the day of completion, but may
proceed with the work, or get others to complete it, and still have his
remedy against the contractor."
739. (Prior) Notices of Intention to Terminate Contract or to Employ
Other Means must be Given as the Contract Requires.*
Clause: "And the said company or its chief engineer shall have
power to annul this contract, etc., if he shall determine so to do, by giving
notice, etc."
If the contract stipulates for certain ceremonies, such as a notice of
intention to terminate the contract, or to inaugurate reforms, or if the con-
tract require a certificate by the engineer setting forth the default of the
contractor, etc., they must be observed and carried out strictly, as required
by the contract terms, or the attempt to annul the contract will fail, and
the owner find that he himself is guilty of a breach of the contract, or has
waived his right to declare the contract forfeited.
The ceremony most frequently stipulated is that of notice to the con-
tractor of the intention to rescind some days or weeks before the act of
rescission is exercised.^ This notice may be given for one of two reasons:
it may be given to afford the contractor an opportunity to redeem himself
and show what he is capable of doing, or it may be given to allow him a
short time in which to finish work in hand, discharge his men, and care for
his plant. If the contract stipulate for a notice, it must be given, and the
owner's or company's rights to proceed will depend upon his having given
the required notice in the time and manner provided.* If notice is not re-
quired by the terms of the contract, the right or power to terminate the
contract may be exercised by the company without question or notice to the
contractor.'
A provision in the specifications that as many workmen should be
employed as the architect should approve, and which also authorized the
superintendent to continue the work at his option, was held to be con-
trolled and limited by another provision in the contract empowering the
owner to provide labor and materials, " after three days' notice in writing,"
if the contractor failed to supply them properly."
A written notice of an election to terminate forthwith a contract which
provided that it could be ended by the engineer giving "at least ten days'
iWyckoff V. Taylor (Sup.), 43 N. Y. States, 26 Ct. of CI. 132; and see Selby
Supp 31. «. Hutchinson, 4 Gilm. 319; Sanford v.
2 Chnmber of Com. v. Sollitt, 43 111. 519. Eraeiy, 34 111. 458; Reynolds v. Nelson, 6
» Rodemer u. Gonder, 9 Gill. (Md.) 288. Wend. 20.
* Hall V. Bennett. 48 N. Y. Super. Ct. ^ Henderson Edge. Co. r. O'Connor
302; Bait. & O. R. Co. v. Stewart (Md.), (Ky.), 11 S. W. Rep. 18 [1889].
• 29 Atl. Rep. 964; Grant -». Savannah Co., « Hall v. Bennett, 48 Super. Ct. (J. <&
61 Ga. 348 [1874]; Williams v. United Sp.) 302 [1882].
* See Sec. 134, sujyra.
682 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§739.
notice " does not terminate the contract on the date of the notice, but ten
days thereafter. ' Therefore it was held that the engineer giving the notice
had power to recall it before the expiration of the time [ten days], and
that it was proper in stating the case to allege that no notice was given.
But it seems that the withdrawal of the notice after the contract has ceased
to be operative will not continue it.' The service of notice on the con-
tractor does not of itself terminate the contract so as to relieve the con-
tractor from responsibility for the proper execution of work already done
by him,' and on the other hand, a failure to serve notice by the owner of
his election to terminate the contract does not conclusively show that he
did not so elect.* A surety is not released because after the contractors
failed to complete the work, and the requisite notice to terminate it had been
given, it was subsequently recalled, and the contractors allowed to proceed
with the work, during which time the loss, for which the surety was held
liable, occurred.'
When a subcontract stipulated, after the terms of the principal con-
tract, that for certain causes the chief engineer of the company might, on
giving written notice to the subcontractor, declare his contract forfeited,
and might take possession of the works and complete them at the subcon-
tractor's expense and for his benefit, it was held that as the engineer was a
stranger to the contract he was under no obligations to give a notice, and
that a written notice from the principal contractor to his subcontractor was
sufficient, where the engineer had notified both that the work was not ad-
vancing satisfactorily.'
The question as to what constitutes a notice of the determination to
annul a contract, or of the intention to employ other persons to continue
the work, has come up in several cases. It has been held that service of a
notice by mailing it in a post-paid envelope raises a presumption of notice
of service.'' There are numerous cases that distinguish a notice required
in a contract from what is required when commercial paper has been dis-
honored. By the law merchant notice of a protest of a note by mail is
sufficient, but where a contract provides that a party shall be notified it
is has been held in several cases that it was not fulfilled by simply mailing
the notice; it must be shown that it was actually received.® A written
notice left at the contractor's house with a woman of mature years, who
answered the door-bell, has been held sufficient evidence of notice.' *
1 Gallo V. City of New York (Sup.), 44 E. Rep. 669
N. Y. Supp. 143. « Hendrie v. Canadian B. C, 49 Mich.
2 Patrick v. R. & D. R. Co., 93 N. C. 401.
442 [1885]. ' Mayor v Moorp, 52 Hun 139 [1889] ;
3 Washburn v. Detinger, 76 Hun (N. Y.) 16 Araer. & Eng. Ency. Law 825
141. 8 Carpenter v. Prov, Wast Ins. Co., 4
^Ogden V. Alexander (N. Y. App.), 35 How ^U. S.). 185; Cast ner d. Farmers' Mut.
N. E. Rep. 638. F. Ins. Co., 50 Mich. 273.
» Smith v. Molleson (N. Y. App.), 42 N. « Mayor v. Moore, 52 Hun 139 [1889].
* See Sec. 95, supra.
§ 740]. CONTRACT STIPULATIONS. 683
The stipulation for notice must not be taken as a necessary requisite to
the dissolution of a contract. When a contract reserves the power to the
owner to dissolve the contract at any time upon five days' notice, the con-
tractor to be entitled to payment for work done and in addition thereto the
sum of $3000 liquidated damages, proof that the owner directed the con-
tractor to discontinue the work and refused to allow him to continue was
held sufficient to show a dissolution of the contract without the five days'
notice stipulated for.' Such acts on the part of the owner would justify
the contractor in treating the contract dissolved without a clause to that
effect.* When a building contract provided that if the contractors should
fail to perform the contract in any particular and the architect should so
specify, the owner might give them three days' notice to perform, and, on
refusal, the owner might terminate the contract, and the architect having
certified that the work was not being done according to the contract, the
owner notified the contractors to remove their labor and materials, and to
provide such materials as were called for in the specifications, and that he
should terminate the contract, taking from them the plans and specifica-
tions, the owner was held to have abandoned the contract.'
The direction to discontinue the work must amount to a command, for
if the contractor acquiesces in a mere request by the owner to do no more
work for a time, he cannot claim a breach of the contract.'
If the contract provide that the owner may, " on the certificate of the
engineer," etc., take the work away from the contractor and complete it at
his cost, etc., the owner is not authorized to charge the contractor with the
cost of completion, unless the architect has certified to the contractor's
failure, refusal, or neglect, as required by the contract. The fact that the
contractor did fail to complete certain work, and that the architect, on
complaint of the owner's superintendent, and on information from him
that he had notified the contractor to proceed with the work by a certain
day, had directed the superintendent, if the contractor did not then com-
mence the work, to put other men on to complete the work, and further-
more that the architect had written the contractor directing him to
commence the work, altogether are not a compliance with the terms of the
contract requiring a certificate of failure, refusal, or neglect.*
740. Provision that Work may be Suspended in Whole or in Part with-
out Compensation to Contractor.
Clause : " The owner [or commissioner] reserves the right of suspend-
ing the whole or any part of the work herein contracted to be done, if
» Curnan v. Del. & O. R. Co., 17 K Y. Y. App ), 35 N. E. Rep. 638.
Snpp. 714; see West t). Suda (Conn.), 36 » McGregor v. Ross Estate (Micb.), 60 N.
At). Rep. 1015 [1897]. W. Rep. 38.
2 Clmr ton v. Scoville (Sup.). 22 N. Y. ^ O'Keefe v. St. Francis' Church, 59
Supp. 883; and see Ogden v, Alexander (N. Conn. 551 [1891].
* See Sees. 681-684, supra.
684 ENQINEBBINO AND ARGHITEGTURAL JURISPRUDENCE. [§ 741.
he shall deem it for his interests [or the interests of the company or city]'
BO to do, without compensation to the contractor for such suspension,
other than extending the time for completing the work as much as.
it may have been delayed by such suspension ; and if the said work
shall be delayed for the reason that the party of the first part does-
not own, or has not obtained possession of, the land on which the same
is to be performed, then, and in that case, and in every such case, the
party of the second part shall be entitled to so much additional time
wherein to perform and complete this contract on his part, as the said
engineer shall certify in writing to be just; but no allowances, by way
of damages, shall be made for such delay."
741. Provision that Work may be Delayed or Suspended without Lia-
bility to Contractor for Damages.
Clause: "The contractors shall, without recompense, claim, or de-
mand, delay or suspend the progress of the works, or any part thereof,
if, and when, and so often as they shall be so required by the engineer,
and for such time or times as may, in the judgment of the engineer, be
necessary for the purposes or advantages of the undertaking, and shall
whenever directed by the engineer, and upon all other needful occa-
sions, at the contractors' own expense, properly cover over and secure
so much of the works as may be liable to sustain injury from weather
or otherwise; and shall at all times, during the continuance of this con-
tract, and forthwith when required, properly make good any damage
or injury which such works, or any part thereof, may sustain, to th&
full satisfaction of the engineer."
742. Reasons for Such a Clause Providing for Suspension of Works. — At
times it is necessary to have clauses of suspension or revocation in
which the terms of the settlement shall have been agreed upon, and the
damages to the contractor or company agreed upon. The peculiar natura
of the work or the unforeseen difficulties that may arise often requires that,
provisions be made for the abandonment of the undertaking entirely. At
times difficulties arise that render the further progress of the work imprac-
ticable or unprofitable, and it is prudent for the projectors of the enterprise-
to have some means of escape from the many obligations they have assumed.
This they may do without being involved in endless litigation by taking
proper precautions and making some agreement with the contractor equit-
able to both parties by which the contract may be terminated. It should
not be necessary to show the desirability of having this agreement incorpo-
rated in the original contract for the work. The great loss consequent to the
failure of such great undertakings is enough of itself to dismay capitalists,
without the prospect of long continued and ruinous litigation.
Some of the risks which are assumed in engineering operations are those
of the utter failure of the undertaking, either from the impracticability of the
scheme, as from obstacles to completion, whether from natural causes or
from legal obstacles, failure in consequence of a change in circumstances^
which render the project no longer a profitable undertaking, or difficulties
§ 743.] CONTRACT STIPULATIONS. 685
due to a failure of funds or means to carry the enterprise to a successful
completion. The hold that a contractor has upon a job when such stipula-
tions have been omitted is irresistible. He can sit still and almost entirely
neglect the work and forbid the company from proceeding with the work or
from in any way interfering to disturb the peaceful state of his tyranny. If
the company does the work, they may be compelled to pay for it a second
time in the bills of the contractor. The contractor usually has a stated time
in which to complete the work, and strictly it may be said that he is guiJty of
no breach until the expiration of that time. Without the clauses for revo-
cation or to take the work into its own hands, the company's undertaking
is at the mercy of the contractor, for whose laches, perhaps, no money con-
sideration can compensate, as, for example, the forfeiture of its charter or or
concessions by the government.
When a contract provides that the suspension of the work by the owner
shall give the contractor no claims for damages in consequence thereof, a
suspension in good faith by the owner will give the contractor no claims to
extra compensation.*
743. Provision that Engineer shall Determine what is Due Contractor
for Work and on Account of Changes and Rescission of Contract.
Clause: " When the work shall have been taken out of the hands and
control of the contractor, or the contract shall have been so determined^
or so soon thereafter as the engineer may think convenient, the engineer
shall fix and determine, either ex parte or by or after reference to the
parties, or either of them, or after such investigation or inquiries as he
may think fit to make or institute, and shall certify what amount (if
any) was at the time of taking charge of the work or of the determina-
tion of the contract reasonably earned by, or would reasonably accrue to,,
the contractor in respect of the work actually done; and the amount
thereof, after allowing for all sums then already paid to the contractor
on account, shall remain in the hands of the board, without interest^
until twelve months after the date of the engineer's certificate of th©
final completion of the works as herein provided, and the engineer shall
be at liberty to authorize, by his certificate, the board to deduct the-
damages, losses, costs, charges, and expenses, in his opinion, incurred by
them, in consequence of the premises, or to which they may be put or
be liable, together with the forfeiture (if any) incurred by the con-
tractor, from any sum or sums of money which would otherwise be-
come due and owing to the contractor; and in case such sum or sums
of money shall not be sufficient to defray such damages, losses, costs,,
charges, expenses, and forfeitures, then the contractor shall forthwith
pay the deficiency to the board, and it shall be lawful for the board to-
recover the same from the contractor by action at law or otherwise;
and any doubts, disputes, or differences arising or happening with re-
spect to the determination of the contract, or in consequence thereof,,
shall be settled and decided as hereinbefore prescribed with respect to
any other doubts, disputes, or differences arising or happening under
the contract."
« Snell V. Brown, 71 111. 134.
68Q ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 744.
744. Engineer the Sole Judge of the Damage Suffered by the Contract
being Rescinded by the Owner. — The above clause has been the subject of
much litigation and no clause in a construction contract is more necessary
to the safe and successful undertaking* of a large work, nor more capable of
creating hardships for the contractor. On the one side are arrayed the in-
terests and investments of a large sum of money by the company, and on
the other the value of a large manufacturing plant and, perhaps, extensive
works in operation to supply the materials and manufactured parts of a
■structure, and the wages and sustenance of a large body of troublesome
men. On the part of the company it is of the utmost importance, vital per-
haps to the success of the enterprise, that the work shall progress at the
rate that shall insure completion by a certain time. Franchises and grants
may have been made whose validity may depend upon the completion and
operation of the works within the time specified. As Chief Justice Chambers,
of Pennsylvania, once said: " The failure of one or two contractors to com-
plete their small portions of the whole structure might suspend the use of a
whole line of a railroad or a canal, with all its advantages, and cause detri-
ment to an extent that the contractor could not indemnify nor repair.
" To protect companies against such disappointments and failures of con-
tractors, it would be necessary to require from them heavy and responsible
-security for the faithful and prompt performance of their contracts, in the
prosecution of their work. As contractors are often strangers and men of
moderate means, the requirement of such security would be an obstacle that
would deprive them of becoming contractors and lessen the number of com-
petitors for the construction of the works. This is obviated by substituting
these stipulations and provisions in the place of personal security, not attain-
able, and which stipulations are intended to stimulate the contractor to a
diligent prosecution of the work, the faithful performance of his contract,
and to save the company from the evils of delay, from expensive and harras-
sing litigation that would retard the work and be ruinous to both parties."'
Mr. Wood, in his Law of Eailways,' says: " The time within which works
4shall be built is often fixed in the charter, and the manner in which works
•shall be done is a matter of great public concern, as the safety of the travel-
ing public who pass over them depends upon the stability and excellence of
the work. For this reason the law tolerates and enforces provisions that
might not be regarded as binding in the case of ordinary contracts. It is
not unusual for the contract to impose penalties upon the contractor for
slight deviations from the terms of the contract or to reserve to the
•company the right to terminate the contract for slight causes."
Some of these provisions, at first view, may seem stringent, arbitrary, and
without the mutuality of obligation and remedy which usually characterize
■contracts, but they exist because the circumstances of the work necessitate
> Faunce v. Burke, 16 Pa. St. 469 [1851]. = 2 Wood's Law of Railroads 995, 996.
§ 744.] CONTRACT STIPULATIONS, 687
them. The reservation of the power to annul the contract is often rendered
necessary by the nature of the work to be constructed, and the relation of
the parties is such that without the provision the contractor would never
have obtained the contract. The stipulation is required in place of security
which he probably could not procure. It cannot be supposed that the com-
pany would agree that the execution of their contracts, their coilstruction,
and any disagreements between the parties during the progress of the work
should be left open to innumerable suits at law and to the determination of
juries unacquainted with the work and the importance of such contracts,
and to be subject to all the vexations, expense, and delay attending such liti-
gation. Such a stipulation of forfeiture under the adjudication of a com*
petent engineer who is supervising the work is a reasonable provision for
securing the progress of the work and a limited indemnity to the company,
of a reasonable percentage, may be reserved, with which to employ other
contractors or laborers to complete the unfinished work according to the
contract/
This rule has been rigorously followed in the state of Pennsylvania.
The courts say that as the contractor enters into a contract with such a
stipulation, and it is in his power to be relieved from them by the due and
proper performance of his work and thus entitle him on its completion to the
whole sum payable under the contract, why shall the law undertake to make
a new agreeinent for the parties which they did not intend to make them-
selves ? They are the best judges of the amount of injury to be sustained by
the interruption of the work and the failure of the contractor to perform his
agreement, an injury uncertain and incapable of estimation and, therefore, a
proper subject for a stipulated reparation.
An agreement that in case the contractor shall " from the default of the
■company be prevented from pursuing the best method of executing the con-
tract, the pecuniary damage sustained by him in consequence thereof shall
he certified by the company's engineer, and, on his certificate, which shall be
final and conclusive between the parties, the company shall make the con-
tractor such reasonable compensation as by said certificate may be fixed,'*
was construed a covenant on the part of the company that in case of pre-
vention, their engineer should make a certificate of damages."
When a contract gives a company or its engineer the right to terminate
a contract for cause, and specifies the manner of payment and expressly de-
fines the rights of the parties on the happening of the event, the law can
only enforce the rights under the contract and according to that contract.'
The stipulation may be severe upon the contractor, but as Justice Woods,
of Ohio, once said : * " They were by no means forced to enter into the
1 Faunce v. Burke, 16 Pa. St. 469 [1851]. Times 147 [1885].
'' Randel v. Chesp. & Del. Canal Co., " Easton v. The Pa. & O. Canal Co., 13
1 Harrington (Del.) 233-322 [1833]. Ohio 79.
' Scolt V. Corp'n of Liverpool, 31 Law
688 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 745.
agreement; it was Tohmtary on their part, and if the company or its engi-
neer has violated neither its letter nor its spirit, it is difficult to see what
reason the contractor has for complaint. We sit here," said he, speaking
of himself and associates, "to enforce the contracts made by others, but we
have no authority to impose upon them obligations to which they never have
assented."
That such a clause is valid and will be enforced or sustained cannot be
doubted if the power has been exercised honestly and in good faith.'
When the contract provides that the certificate of the architect as to
the cost of completing the building shall be conclusive as to the cost
thereof, the certificate has been held admissible to show the cost of com-
pleting the building, as against persons seeking to enforce mechanics' liens
for material furnished the contractor, the latter having defaulted and the
owner having finished the building."
745. Right to Determine Damages Resulting from Annulment must be
Expressly Reserved to Confer Authority. — The contract must contain a
reservation of express authority to the engineer to determine the damages
due to breach of the company or his estimate of the damages will not hold.
A general power to determine in all cases every question which could or
might arise relative to the execution of the work or contract on the part of
the contractor, and that his decision should be final and without appeal,,
does not embrace a claim by the contractor for damages resulting from his
being denied permission to proceed with the execution of the work.'' *
746. Engineer's Determination to Terminate Contract is Final if Exer-
cised in Good Faith. — If the exercise of power be left to the judgment and
discretion of the engineer by the terms of the contract, or the agreement
provides that " if the works do not progress so rapidly and satisfactorily as
required by the company or its engineer it or he shall have full power ta
enter upon and take possession of the works and pay whatever men that
may be left unpaid and may set to work whatever number of men it
or he may consider necessary, and that the amount so paid and the costs of
the men so employed should be deducted from any moneys that might be
due the contractors," the English courts hold that if the company or its
engineer is dissatisfied, whether with or without sufficient reason, with the
progress of the work, it or he has the absolute and unqualified power to put
an end to the contract or to employ additional hands and get the work done
1 Faunce v. Burke, 16 Pa. St. 469 [1851]; Corp'n of Liverpool, 31 Law Times 147
East on V. Pa. & Ohio Canal, 13 Ohio 79 [1858] ; Lantry v. City of New York
[1844]; Rossvalley v. City of New Orleans, (Sup.). 44 N. Y. Supp. 874 [1897].
19 La. Ann. 7 [1867]; Leake's Dig. of Con- « Maloue v. Maylield (Tex.), 36 S. W.
tracts 640, and English cases cited; Ran- Rep. 148.
del V. Chesapeake & Del. Canal, 1 Har- ^ Launman v. Younge, 31 Pa. St. 306;
rington (Del.), 233 [1833]; Geiger -y. The Weeks v. O'Brien (N. Y. App.). 36 N. E.
W. Md R. Co., 41 Md. 4 [1874]; Scott t). Rep. 185.
* See Sec. 397, supi'a.
§ 747.] CONTRACT STIPULATIONS. 689
as the contract may empower^ and so long as the company and its
engineer act in good faith and under an honest sense of dissatisfaction,
although it may be ill-founded and unreasonable, they are entitled to insist
on the provision. Like the many other stipulations in a construction con-
tract by which disputes are left to the determination of the engineer, the
contractor cannot escape their binding force unless he can allege and prove
bad faith ; it is not sufficient to charge that the company was unreasonable
and capricious.
A replication by a contractor that " the works did proceed as rapidly
and satisfactorily as the company reasonably and properly could require,
and that the company and its engineer unreasonably, improperly, and
capriciously required the works to proceed at a speed inconsistent with all
reasonableness and justice,^' was held to be no answer to the exercise of
power conferred by the contract when it stopped short of alleging bad
faith.^ On the other hand, the engineer may not act upon his mere arbi-^
trary discretion; he must act in good faith."
Under a stipulation " that it shall be lawful for the board to terminate^
the contract and take possession of the works in case the contractor should
not, in the opinion of and according to the determination of the architect,,
exercise due diligence and make such progress as would enable the works-
to be effectually completed at the time contracted for," was held to entitle
the board to terminate the contract and take possession of the works upon
the certificate of the architect that the contractor had failed to exercise due
diligence and make due progress, even though he had been prevented from
making such progress by delay in supplying him with the necessary plans
and in defining roads which had to be made. In the absence of fraud and
collusion the architect's opinion was held to be binding and conclusive on
the contractor."*
747. Mandamus and Injunction when Owner is about to Annul Contract. —
Following the same principle, a court of equity has dismissed a bill with costs
which complained of undue delay on the part of the engineer in awarding
the amount earned by the contractor and seeking payment for what was
due, but which did not establish fraud and collusion. The construction
and operation of such an agreement was held the same in a court of equity
as in a court of law."
An injunction has been granted to restrain a company from bringing
1 Stadhard v. Lee. 3 B. & S. 364 [1863]; cord Anvil Min. Co. v. Humble, 153 U. S.
and see also Roberts v. Bury Comm'rs, 540.
L R 5 C. P. 310; P., etc., R. Co. v. How- ^ Roberts v Bury Improvement Co., 38
ard. 13 How. (U. S.) 307; Wadsworth v. L. J. C. P. 3(7.
SmiMi, L. R. 6 Q B. 332; Walker «. Lon- * Scott v. Liverpool Corp'n, 5 Jur. (N.
don & N. W. Ry.. 1 C. P. D. 518; Pawley S.) 105 [1860] ; and see Garrett v. Barn-
tj. Turnbull, 3 Giff. 70. stead etc., Ry. Co , 11 Jur. (N. 8.) 591;
2 White V. Harrigan, 41 Minn. 414; ac- also Muuro v. W. & B. Ry. Co., 11 Jur.
(N. S.) 612.
* See Sees. 418-443, supra.
690 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 747.
suit against a contractor to recover penalties -when the latter has alleged
full compliance with the terms of his contract and has charged fraud to the
engineer of the company.'
If a contract contains a provision that either party may terminate it
upon proper notice, whereupon arbitrators shall be appointed to determine
the terms upon which the contract shall be rescinded and the compensation
to be awarded, equity will not entertain a bill to cancel the contract; such
bill being in itself a violation of the provision for arbitration.''
An allegation by the contractor, among other things, that the works had
been delayed by the company's orders ; that each month's work had been
underestimated by the engineer by order of the company ; that a large sum
was still due and unpaid; that all the sums that had been certified by the
engineer had not been paid, and charged that notice of an intention to take
possession of the works was given for the fraudulent purpose of avoiding the
payment of sums due the contractor, and of ejecting him from theworks
in order to procure other persons to finish it at an earlier date than they were
bound to do under the contract; all this, but especially the charge of fraud,
was held sufficient to entitle the contractor to a hearing in equity on a bill
praying that an account may be taken of what was due him and for an
injunction to restrain the company from taking the works and contractor's
plant.'
Under a contract clause making it lawful for the company to employ
other persons or workmen, either by contract, measure, or value, or to
otherwise proceed with the works, etc.. and to make use of the contractor's
materials, etc., the company discharged the contractor and attempted to take
possession of the works and set other persons at work. The contractor and
his men resisted, and collisions occurred between the workmen of the two
parties, each party being charged with impeding the operations of the other,
and the completion of the work was thus very much delayed. On petition
of the company the court restrained the contractor from continuing on the
line and from interfering with the operations of the company, directed an.
account to be taken of what was due the contractor for work and materials
•done, without regard to the certificate of the engineer, and directed an issue
to try the case and ascertain whether the company at the time they pro-
'ceeded to enter upon the works and remove the contractor were lawfully
justified in so doing, reserving the question of the right of the contractor to
•compensation for loss of profits, as well as other questions until after the
^rial and report. This decree was calculated to protect the legal or supposed
legal rights of the owner, and to preserve to the contractor the substantial
'benefit of a specific performance.*
^ Waring V. Manchester Rv. Co., 7 Hare ^ Warinc: v. The Manchester, etc.. Ry.
483. * Co., 2 Ha'l & Twells (Ch.) 239 [1850].
^ Young Lock Nut Co. v. Brownley ^ The E. Lancashire Ry. Co, v. Hattera-
:Manufg. Co. ,(N.. J." Ch.), 34 Atl. Rep. 947. ley, 8 Hare 72 [1849].
§ 748.] CONTRACT STIPULATIONS. 691
Another English case goes so far as to hold that unfair conduct proved
on the part of the architect will be sufficient cause for a court of equity to
give relief and even to decree payment of the balance due the contractor,
to declare the decisions of the architect not binding, and to release the
contractor from penalties imposed. The declaration in this case alleged
that the architect exercised the powers conferred upon him in an arbitrary,
capricious, and vexatious manner, so as to deprive him of completing the
works according to his contract.^ This case must be taken as out of sympa-
thy with the other English cases cited, and more in line with the Ameri-
can decisions.
748. American and English Decisions Compared. — Throughout the
American decisions one cannot help noticing the democratic spirit which
prevails when compared with the stringent, drastic, conservative policy of
the English courts. The American courts are more regardful of the inter-
ests and weaknesses of contractors. The circumstances under which a con-
tractor enters into his contract and assumes the obligations of his contract,
the arbitrary manner in which these stipulations are inserted, and the fact
that the contractor usually has no voice whatever in the selection of the
language of the contract, and no choice, if he will get the work, but to sign
the contract as prepared for him, are deserving perhaps of some considera-
tion, and are enough to recommend him to the merciful protection of the
court. It may be even that the terms of the contract could not be
changed if the contractor did urge it and the city were willing, as in the
case of a contract form which has been made the basis of proposal for public
works where the law requires that the contract shall be let to the lowest
bidder.*
The education of contractors is usually limited, and it is a well-known
fact that work is often taken by men who cannot understandingly read the
contract to which they subscribe their marks or names. It is not strange,
therefore, that our courts are more apprehensive of the hardships that a
contractor is subject to, and more apt .to entertain his cause than are the
English courts. This tendency to clemency in the American jurisprudence
may be found in the criminal court decisions, in cases of torts in general, and
seems to pervade our whole system ; it cannot be said to be from any over-
zealous desire to protect individual rights so much as from a desire to pro-
mote justice and relieve from hardships.
The English courts have always exercised the most zealous protection of
individual rights, especially of property, while the democratic spirit of the
American courts has sacrificed innumerable property rights to the conven-
ience and comfort of the public. Easements of air and light, rights in
streets and roads, and to the use of water from our streams, have in many
» Pawley v. Turnbull, 3 Gifford 70 [1861].
* See Sees. 155-159, supra.
692 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 748.
instances been sacrificed to the public without any compensation whatever.
It is the practice of English courts to construe contracts strictly according
to the evident intention of the parties as expressed in their agreement, and
not to ascertain what is just and right. As one might expect, therefore, we
find the halls of justice open to the contractor for causes that would not be
listened to in an English court.
The American courts have not always followed the rigid lines laid down
in the English cases cited, but have sought somewhat to relieve the apparent
hardships with which the rule must sometimes burden the contractor. As
in so many other cases, we find the American cases tempered with charity —
Justice, as it were, with her eyes open to the misfortunes of the poor con-
tractor. An early Ohio case [184:4] held that whether or not there had been
a proper exercise of the discretion conferred by the contract on the part of
the company or its engineer, was a question for inquiry and proof for a
court.' A later case held that the power to declare a forfeiture of a contract
when the work shall not make such progress as shall insure completion
within the time stipulated, or if the work shall be, wholly or in part,
improperly constructed, is not an arbitrary one to be exercised capriciously,
but can be exercised only in good faith and for a reasonable cause." In an
action for damages by the contractor for wrongful act of the architect in
taking possession of the works, the issue whether the contractor has fulfilled
his contract and if the architect was justified in taking the work from him,
was held one that he was entitled to have tried, and it was further held that
the decision of the building inspector under a city ordinance was not con-
clusive as to the rights of the contractor upon the trial of such issue. ^ It
might be proper to say, however, that the clauses of the American contracts
did cot usually contain the stiff requirements of the English cases.
The proof of the contractor's declaration that the exercise of the engi-
neer's power in annuling his contract was wrong, devolves upon the con-
tractor who makes it.*
^Easton v. Pa. & Ohio Canal Co., 13 ' White «. Harrigan (Minn.), 43 K W.
Ohio 79 [1844]. Rep. 89 [1889].
2 City of Chicago v. Sexton, 115 111. 230 * The State v. McGuiley, 4 Ind. 7 [1852].
[1885],
CHAPTER XXVII.
PAYMENT. PROGRESS AND FINAL PAYMENTS. PRELIMINARIES TO
PAYMENTS.
PROOF THAT LABOR AND MATERIALS ARE PAID FOR AND NO LIENS HAVE
BEEN FILED. RELEASE OF LIENS AND OF ALL CLAIMS REQUIRED BEFORE
PINAL PAYMENT. MANNER OF MAKING PAYMENTS. CONTRACT SIGNED,
SEALED, WITNESSED, AND DELIVERED.
750. Provision that Contractor shall Furnish Proof that all Wages, Mate-
rials, and Supplies are Paid For.
Clause : " In the event of the contractor failing or neglecting for two
weeks to pay the wages of the men and teams employed on the works,
whether on account of default, neglect, insolvency, or otherwise, the
owner or board of public works, on the representation of the engineer,
reserves to itself the right to pay all such wages ascertained to be due,
and to deduct the amount of the same from any moneys due or coming
due to the contractor, on this or any other contract; but it is distinctly
understood and agreed that the owner or city assumes no obligation nor
in any way undertakes to pay such wages out of any funds due or
coming due to the contractor, or out of his [its] own funds."
761. Provision that Contractor shall Furnish Proof that All Claims for
Labor and Materials are Paid.
Clause : "And the said contractor further agrees that he will furnish to
the owner or company or to his [its] engineer satisfactory proof that all
labor and materials employed in or upon the works have been paid for
in full, before he shall demand any estimates or payments due or unpaid
under this contract, and in default of such satisfactory proof he further
expressly agrees that the said owner or company may retain and reserve
from the amount due by the terms of this contract, a sum sufficient to
pay all such claims for labor and materials until they are paid and satis-
factory proof of that fact has been furnished."
762. Provision that Contractor shall Indemnify City from All Claims for
Labor and Materials.
Clause: "The said contractor further agrees that he will indemnify
and save harmless said owner or city from all claims against said
owner or city, under Chapter of the public statutes of the
State of , and any laws passed since the public stat-
693
694 . ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 753.
utes with reference to liens on buildings and lands, for labor done and
materials furnished under this contract, and shall furnish the said owner
or board with satisfactory evidence, when called for by him [it], that
all persons who have done work or furnished materials under this con-
tract, for which the said owner or city may become liable, and all claims
from the various departments of the city government or private corpora-
tions, or individuals, for damage of any kind caused by the construction
of said work, have been fully paid or satisfactorily secured; and, in case
such evidiBnce is not furnished, an amount necessary and sufficient to
meet the claims of the persons aforesaid shall be retained from any
moneys due, or that may become due, the said contractor under this
contract, until the liabilities aforesaid shall be fully discharged or satis-
factorily secured."
753. Provision that Owner may Eetain Moneys Due Equal to Labor and
Material Claims Unpaid.
Clause : "And it is further agreed by the part . . of the second part [the
said contractor] that said part . . will furnish the said owner or commis-
sioner with satisfactory evidence that all persons who have done work, or
furnished materials under this agreement, and who may have given
written notice to said owner or commissioner before or within ten days
after the final completion and acceptance of the whole work under this
contract, that any balance for such work or materials is due and unpaid,
have been fully paid or satisfactorily secured. And in case such evi-
dence is not furnished, as aforesaid, such amount as may be necessary
and sufficient to meet the claims of the persons aforesaid may be retained
from any moneys due said part . . of the second part [said contractor]
under this agreement; until the liabilities aforesaid shall be fully dis-
charged or such notice withdrawn."
754. Provision that Moneys may be Retained to Meet Unsatisfied Claims
for Labor and Materials.
Clause: "The said contractor further agrees that the said owner or
board may, if he [they] deem it expedient to do so, retain out of any
amounts due to the said contractor, sums sufficient to cover any unpaid
claims of mechanics or laborers for work or labor performed under this
contract; provided, that notice in writing of such claims, signed by the
claimants, shall have been previously filed in the office of the engineer
or clerk of the works."
755. Sometimes Provisions for Payment of Labor and Materials are Re-
quired by Law in Contracts for Public Work. — These several stipulations have
been regarded with so much favor in construction work that it has been
made the subject of an ordinance in New York City, which requires it to be
inserted in every contract for work done for the city, the clause postponing
the payment of the last installment due until satisfactory evidence is fur-
nished ** that all persons who have done work or furnished materials under
the contract," to all who have given ten days' written notice that a balance
is due them, or until tliey have been fujly paid or secured. Under such an
ordinance it was held that a materialman who had supplied materials for
§ 756.] CONTRACT STIPULATIONS. 696
the work under one contract, could not obtain a lien upon a balance due the
same contractor under another contract/
Where a school board fails to require the contractor to give the statu-
tory bond for the payment of laborers and materialmen, neither notice
nor demand is necessary to the cause of action against the members,
thereof thereby accruing to the laborer or materialman for labor or ma-
terial furnished in the construction of the building.' In this case tlie
members of the school board became personally liable to the contractor'^
creditors.
A provision that, at completion of the work, the balance due shall be
paid the contractor on his receipting for the same in full, and rendering
clear receipts from all subcontractors, employees, and materialmen from all
liability to them, was held to exempt the company from liability to the con-
tractor for damages recoverable against him by a subcontractor for breach
of the subcontract, consisting in the delay of the company to have the-
road surveyed."
When the contractor has covenanted that he will promptly pay, or cause
to be paid, all claims for materials used by him under the contract, and for
all labor performed, in the construction and completion of a structure, a fail-
ure on his part to promptly pay such claims, or cause them to be paid, is a.
breach of the covenant.*
A bond furnished by a contractor for the erection of works and which
recites that he " shall file with the board of public works the receipts and
claims from all parties furnishing them with, materials and labor," is a
promise by the contractor to pay for all labor and materials, and a petition
of a materialman averring that the contractor owes him for lumber used
in the structure, is a sufficient averment of a breach of his promise.' An
agreement to settle with all holders of claims does not require the contractor
to show that he paid all claims incurred in the construction of the works.*
A failure to pay all claims entitles the owner to nominal damages only^
unless it be shown that he is liable for the payment of the bill.'
When the contract provides as a condition precedent to the final payment,
that there shall be no legal claims against the contractor for work or mate-
rials furnished, a surety on the bond of the contractor cannot enforce a lieik
for work or materials.®
756. Validity of Clause in Public Contracts. — If the agreement to pay
for the work and materials has been made subject to the conditions recited
1 Quinlan v. Russell, 94 N. Y. 350 ^ Lyman v. City of Lincoln (Neb.) 57 JST..
[1884]. W. Rep. 531.
« Staffon '». Lyon (Mich.), 68 N.W. Rep. « Bradford v. Whitcomb (Tex.),32 S. W.
151. Rep. 571.
s O'Connor v. Smith (Tex. Sup.), 19 S. '' Karr v. Peter, 60 111. App. 209.
W. Rep. 168. ^ Gannon's Ex'rs v. Cent. Presb. Ch.
"Tliompson v. Coffman, 15 Oreg. 631 (Pa. Sup.), 33 Atl. Rep. 1043.
- [1886].
696 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE [§ 757.
in the stipulations given, the binding effect of the agreement cannot be
doubted, when the contract is between individuals or private corporations,
but when the government or a public institution, as a city, has inserted it in
its contracts for public improvements, its validity lias been questioned. It
has been argued that a provision in a contract which makes payment for
work dependent upon the nonexistence of claims against the contractor is
one which a committee or board has no authority to make, and that it is,
therefore, inoperative. That a public board as a qiiasi-conporation has only
certain powers expressly mentioned and defined by law, and that among
these there is no power to interpose between employers or purchasers and
the persons with whom they deal for the purpose of compelling the per-
formance of contract obligations which the employers and purchasers have
assumed. That the contracts of a city must be within the scope of the
authority conferred on it by law and for municipal purposes, and that they
•can take nothing from the general sovereignty except what is expressly
granted; ' that municipal bodies are not philanthropic or charitable institu-
tions whose province it is to act as collecting agents for individuals either
<lirectly or indirectly.
These arguments have been characterized as insurmountable if the
agreement had been the subject of an independent agreement, but that
when incorporated in a contract for public works to prevent the attachment
of liens or other claims they lost their force, and that such a stipulation
in a municipal contract was not ultra vires.^ In Missouri it has been held
that a city may make it a requirement of the contract and a condition of
the bond for faithful performance, that the contractor shall " pay to the
proper parties all amounts due for material and labor" employed in the
performance of the contract.'
757. Materialmen's and Laborers' Rights under such Stipulation. — A
provision that the city may retain money due the contractor until he shall
have paid his laborers gives the latter no rights against the city when the
contractor has been paid in full.* * It seems that they may have an action
against the contractor's surety on a bond that provides that the contractor
shall pay all claims for labor and materials,^ but this is under an express
statute." In New York they cannot unless there was an intent on the part
1 See Port Huron v. McCall, 40 Mich. 565-
574.
2 Knapp V. Swaney, 56 Mich. 345 [1885];
see Hamilton v. Gambell (Oreg.), 48 Pac.
Rep. 433 [1897]; and Bass Fdy. & M.Wks.
V. Bd. Com'rs Parke Co. (Ind.), 32 N.
E. Hep. 1125.
3 City of St Louis v. Von Phul (Mo.
Supp.), 34 S. W. Rep. 843, omrruhng ;
Pipe Co. V. Thompson, 120 Mo. 221.
* Old Dora. G. Co. v Dist. of Columbia,
20 Ct. of CI. 127; Ritchie v. Dis'. of Colum-
bia, 18 Ct. of CI. 78; and see Buffalo Cem.
Co. V. McNaughton (Sup.;, 35 N. Y.
Supp. 453 ; Mansfield v. New York (Sup.),
44 N. Y. Supp. 229.
' Baker & Co. v, Bryan, 64 Iowa 561.
« Iowa McClains Ann. Code, 1888, §
3757; 17 Am. & Eng. Ency. Law 527.
* See Sec. 17, supra.
§ 758.] CONTRACT STIPULATIONS, 697
of the owner or city to take the bond for their benefit and an obligation to
them which would create a privity of interest/
758. Claims of Laborers and Materialmen Disputed by Contractor. —
Some complicated conditions must sometimes arise under these stipulations
when the claims of materialmen are disputed by the contractor. How the
owner, city or company is to determine whether the claims of the laborers
or materialmen are well founded or legal, and if they can determine that
question on their own responsibility. One can imagine a materialman
using such a clause for all it is worth to coerce the contractor and compel
the payment of a disputed claim, especially where the owner and claimant
were good friends, or the materialman was a favorite with the city
officers.
An illustration is afforded in a case where a contractor had received
money under a contract with the express understanding or agreement that
it should be applied to the account purchased for that contract, and the
contractor paid the money to the materialman without any particular in-
structions that it was to apply on that particular account. The material-
man credited the contractor's account with the sum paid, which account in-
cluded materials furnished upon other contracts. The court held that under
these facts the law would apply the payment to the oldest items of the con-
tractor's account, and that having been so applied by the materialman, he
(3ould not be compelled to change the application simply because he knew
that the money had been received from this particular contract, that if the
owner would have secured such an application to his bill of materials for
his house then he should have given the materialman notice of his agree-
ment with the contractor.' If the contractor have a general account with a
materialman, which includes the materials used on a certain building and
the contractor makes a payment " on account," stating that he received the
money from the owner of said house, it seems the materialman may
apply the payment to the general account or to bills or accounts of materials
for other buildings, and his lien duly filed will hold against other sub-
sequent liens.'
Such a clause must necessarily work a hardship upon the contractor
who is required to furnish so much more capital to carry on the work, in
addition to furnishing bonds and assuming all the risks of the undertaking,
and it, therefore, lessens the competition for the work, limiting the number
of contractors to those who have abundant means. Of course, this is only
one side of the case. However, in a suit for damages in a large sum and
for balance due under the contract, it has been held that an exception that
iLythu. Kingston (Sup.). 43 N.Y.Snpp. '^ Orr v. Nagle (Sup.). 33 N. Y. Supp.
653; other case$ in 17 Amer. & Eng. Ency. 879; First Presby. Ch. v. Sanly (Ksin«.), 34
Law 529. Pac. Rep. 974; see also Sayre Lumb. Co. v.
^ Jefferson v. Church of St. M. (Miun.), Union Bank (Colo. App.), 41 Pac. Rep.
43 N. W. Rep. 74. 844.
698 ENGINEERING AND ARGHITECrURAL JURISPRUDENCE. [§ 759.
the contractor could not demand further payment without showing that all
laborers, subcontractors, and materialmen had been paid, and that no liens
had been recorded against the company, was not well taken when the peti-
tion of the contractor alleged that what is due, if anything, is due to such
laborers, etc., is due primarily from the company, and that the contractor
reserves his right to sue for it, if they are compelled to pay, though the
company could bring in defense any rights that they had in this regard.'
If the owner wants proof that materials and labor are paid for as the work
proceeds or when he makes progress payment, he should stipulate for them
expressly.'
759. Provision that Contractor shall Protect Work and Premises from.
Liens.
Clause: "The contractor shall save and keep the buildings [or
works] referred to in this contract, and the lands on which they are
situated, free from any and all mechanics' liens, and other liens, by
reason of his work, or of any materials or other things used therein;
and if the contractor fail to do so, the owner may retain sufficient of
the contract price to pay the same, and all costs by reason of or in con-
sequence thereof, and may pay said lien or liens, if any, and costs, and
deduct the amount thereof from the contract price, or any part
thereof that is due and unpaid."
760. Provision that Contractor shall Furnish a Certificate from Register
of Deeds that no Liens or Claims have been Filed.
Clause: "And it is further expressly agreed and understood that no
payments shall be due, demanded, or claimed under this contract, until
in each case that payments are provided for, the contractor shall fur-
nish a certificate from the register of deeds where liens are recorded,,
signed, and sealed by said register that he has carefully examined the
records in his office and finds no liens or claims filed against the said
works or buildings or on account of said contractor, nor shall thera
be any legal or lawful claims against the contractor in any manner or
from any source whatever for work or materials furnished on said
work or buildings."
761. Agreements Inconsistent with Existence of Liens is a Waiver of
the Right to a Lien. — Such a special agreement inconsistent with the ex-
istence of lien is a waiver of the right to a lien, and will hold against tha
contractor or his assignees,' If the contractor undertake to furnish to tha
owner satisfactory evidence that materials furnished are fully released from
all liens before he shall receive the sums due on final payments, it is a con-
dition precedent to a recovery under the contract." In the absence of such
an agreement the parties will be presumed to have contracted for work and
1 Fletcher v. New Orleans & N. E. R. v. Rapp, 131 Pa. St 593 [1888]; Coulters.
Co. (La.), 19 Fed. Rep. 731 [1884]. Bd. of Ed. 63 N. Y. 365 [1875]; and see
2 Semble, Leavel v. Porter, 52 Mo. App. Erickson v. Brandt, 53 Minn. 10.
632; Bradford v. Whitcomb (Tex.), 32 S. ^ Fogg v. Suburban Rapid-Transit Co.,
W. Rep. 571. 90 Hun (N. Y.) 274.
^ Long V. Caffrey, 93 Pa. St. 526; Scheid
§ 7<J2.] CONTRACT STIPULATIONS. 699
materials under and with reference to the protection that the lien laws af-
ford.' The statutes giving mechanics and materialmen a lien for their
work and labor have never been construed to forbid such any agreement,
and it will be upheld if the contract is not contrary to public policy."
If the surety covenants that no lien shall accrue against the works it
prevents the contractor from having a lien unless the surety is discharged.*
Under a clause that final payment shall be made when the contractor
furnished satifactory evidence that no liens or unsatisfied claims existed on
the work, it has been held that such evidence was furnished if at the end
of the limit for filing liens no claims were filed under the mechanics' lien
law.* A covenant against liens cannot, it seems, be construed as a covenant
to pay all claims incurred to erect the building.'
762. Contractor's Covenant Against Liens does not Bar Materialmen
and Laborers from Filing Liens. — Under a clause which provided that the last
payment shall not be due nor paid until the contractor shall have "furnished
a complete release of liens, or until the contractor shall have furnished a
•certificate from the registry of deed that no liens have been filed," the con-
tractor cannot recover the amount of final estimate until he has executed
the release; and an attaching creditor has no greater rights." A common
law court has no right to make its judgment against the owner or company
operate as a release under seal by the contractor."
Such a clause has been held not to prevent the materialman or laborers
from filing and enforcing a lien against a structure upon which they have
worked or furnished stuff. ^ The fact that the contractor has covenanted
that he will not suffer any lien by any person to be put upon the building,
and that any such lien until it is removed shall preclude any claim for pay-
ment under the contract, and that the last installment shall not be payable
till a release of all claims and liens for work and materials is furnished by
the contractor, has been held not to indicate that the parties intended ab-
solutely to prevent the filing of any lien, and that it would not therefore pre-
vent a materialman from having a lien.® A waiver by the subcontractors
does not affect the right of the principal, contractor to a lien." If the stipu-
lation be that payment shall be made for work on final estimate and certifi-
> 15 Araer. & Eng. Eucy. Law 104-5. v. Gallahue, 14 Gratt. (Va.) 563.
» 15 Amer. & Eng. Ency. Law 105, and ' Cresswell T. Wks. v. O'Brien (Pa.), 27
««« O'Connor «. Smith. 84 Tex. 232. Atl. Rep. 181; Atl.. Coast Brew. Co. v.
3 15 Amer. & Eng. Ency. Law 105; and Clement (N. J.), 36 Atl. Rep. 883.
see Blytlie v. Robinson (Cal.), 37Pac. Rep. ^ Cresswdl I. Wks. v. O'Brien, supra;
' 904. Norton v. Clark. 85 Me. 357; Lloyd & Co.
4 Wallis Iron Wks. V. M. P. Assn. (N. ■». Kran.se (Pa.). 23 Atl. Rep 602; Gim-
J.). 26 Atl. Rep. 140 [1893]: and see Mills bert v. Hein.sath, 11 OhioCir. Ct. Rep. 389,
«. Norfolk, etc., R. Co. (Va.), 19 S. E. «nd«ee Whittierv. Wilbur, 48 Cal. 175; but
Rep. 171 [1894]; Simonson v. Grant, 86 see also Benedict v. Hood, 184 Pa. St. 289,
Minn. 439. and Scroeder v. Garland, 134 Pa. St. 277.
^ Sinionson v. Grant, sup7'a. » Commonwealth Tit. Ins. Co. v. Ellis
« Baltimore & O. R. Co. v. McCullough, (Com. PI.). 5 Pa. Dist. Rep. 33.
12 Gratt. (Va ) 595; Baltimore & O. R. Co.
700 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 762.
cate of an engineer approving the work, and a showing that the work is
free from all liens, and, after the final estimate is made and the certificate
procured, the contractor, being refused payment, files his lien, the fact that
subcontractors subsequently file liens for work will not defeat the contract-
or's lien.' A subcontractor, who had knowledge when he undertook the
work that the contractor had waived his rights to a lien, has been held not
entitled to a lien-*'
The allowance of a lien to a subcontractor is a special privilege, and it is
riot unreasonable to require him to look to the principal contract to ascer-
tain whether it is such as to justify him in becoming a contractor under it.
His right to a lien depends upon the contract between the owner and the
original contractor, and it is his privilege to inform himself about the terms
of the original contract, and, if not satisfied with them, to refuse to deal
with the contractor.^ * His right to a lien is not, however, affected by an
agreement between the owner and principal contractor subsequent to the one
under which he began work, and of which he had no notice, whereby the
principal contractor undertook to deliver the building to the owner free of
all liens.* The contractor may be part owner of the property, if the contract
is in good faith, and does not mislead and defraud ; but if the contractor
be the sole owner of the property, and the person with whom he contracts
holds the property in her name merely as his trustee, the covenant against
liens is of no effect/ The owner cannot, by putting himself in the position
of a contractor, destroy the right of a subcontractor to a lien on the prop-
erty." A materialman has been held not to be a subcontractor/ One who
supplies a contractor with brick for a public building is not a subcontractor,
but a materialman, and hence is entitled to the benefit of a public act re-
quiring a contractor on a public building to furnish a bond for payment for
materials.' A person contracting to furnish material, such as doors, sashes,
blinds, etc., for a building, which, instead of manufacturing to order, he pur-
chased ready-made, is a materialman only.' One who agrees to .furnish
certain mantels, tiles, and grates, and the appurtenances thereof, and to
deliver and set them in position, has been held a materialman, and not an
original contractor.'"
The fact that the materials are furnished upon the order and credit of
' Ford V. Springer Land Assn. (N. M.), Rep. 914.
41 Pac. Rep. 541. ^Owen v, Johnson (Pa.), 34 Atl. Rep.
'' Bowen v. Aubrey, 22 Cal. 566. 549.
* Foster v. ISwaback, 58 111. App. 581; 'People v. Powers (Mich.), 66 N W.
Cote V. Shoeu (Super. Ct.), 38 W. K C. Rep. 215.
382; Knickerbocker v. Murphy, 59 111. ^Staffonr Lyon (Mich.), 62 N. W R(^p.
App. 39. 354; 6w? s<?« McKee tJ. Rapp (Super.). 35 N.
4 Cook '0. Williams (Pa. Sup.), 24 Atl. Y. Supp. 175.
Rep. 746; Schroeder t>. Galland, 134 Pa. » Wilson v. Hind (Cal.), 45 Pac. Rep.
St 277, distinquislied ; Cook v. Murphy 695.
(Pa). 24 Atl. Rep. %m, followed. '<> Bennett v. Davis (Cal.), 45 Pac. Rep,
^Ballman v. Heron (Pa. Sup.), 28 Atl. 684
^ See »>ec. lU, infra.
§ 763.] CONTRACT STIPULATIONS. ' 701
the contractor, and not on the credit of the building in which they are used,
will not defeat a lien on the building for such materials,* nor will the taking,
by the materialman of an assignment of all the contractor's rights under
the contract with the owner, and under other contracts, to hold as security
until his claim was paid, destroy his lien." A materialman who furnishes
materials for a particular building has been held entitled to a lien, though
they were not used in such building.' If the work has been abandoned by
the contractor, and finished by the owners, an assignee of the final payment
to become due the contractor cannot recover without producing such certi-
ficate.*
Such a stipulation requiring a certificate that no liens have been filed
before payment can be demanded under the contract has been held to be for
the protection of the owner and not for the persons furnishing materials to
the contractor.* Likewise a release of liens executed by the contractor to a
mortgagee of the premises, who had refused to advance more money for the
building unless their lien was made prior to that of the contractors, does not
inure to the benefit of the owners."
763. Contractor to Execute a Eelease of All Claims or Demands before
Final Payment. — When the contract provides that " before demanding or
upon receiving the full amount of the final estimate made according to the
terms of the contract, the contractor shall execute a release, under seal,
from all claims or demands whatsoever growing out of said contract," the
giving of such a release is a condition precedent to his recovery, if the esti-
mate has been properly made out,'' but not so if the final estimate by the
engineer were fraudulently made. The contractor cannot recover the
amount of his final estimate, or the balance due, until he has executed the
release, and his attaching creditors have no greater rights. In such a case
the common law court has no authority to make its judgment against the
company or owner operate as a release under seal by the contractor.*
There must be no fraud or misrepresentation on the part of the company.
A receipt in full given by a contractor upon the representations of the offi-
cers of the company that the engineer had decided that no claims for extra
work were to be allowed, which representation was false, does not prevent
the contractor from suing for the value of the extra work several years
thereafter, the receipt showing that he had received only what he was
entitled to under the contract."
If the contractor has released his lien on the agreement of the owner to
1 Clark r. Huey ilnd. App.), 40 N. E. 915.
Rep. 152. « Paulsen 'o. Manske (111.), 18 N. E. Rep.
'Taliaferro ??. Stevenson (N. J. Err. & 275 [1889].
App.). H3 Atl. Rep. 883. ^ B. «& O. R. Co. «. Polly & Co., 14 Gratt.
»Jonte V. Gill (Tenn. Ch. App.), 39 S. 448.
W. Rep. 750. 8 B. & O. R Co. v. McCullough (Va.), 12
4 Bates r. Trustees (Sup.), 27 N. Y. Supp. Gratt. 595 [1855].
951. ' 'McGrann v. Pittsburgh & L. E. R. Co.
^Hurd t>. Johnson Co., 34 N. Y. Supp. (Pa.), 2 Atl. Rep. 873 [1885].
702 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 764.
pay the claim, afterwards reinstates his lien because of the refusal of the
owner to make the payment, he thereby abandons the agreement with the
owner, and cannot afterwards sue on it/
764. Mechanics' Liens Laws of Different States. — The subject of me-
chanics' liens is an important one to every contractor, builder, and owner,
but being entirely the subject of statute law, and of different states, it will
be impossible to properly treat it in the space available in this book. There
are excellent treatise on the subject,* and the reader is referred to those
books for the general and special lien laws. The subject of liens that will
interest architects and engineers is treated in another chapter, under the
general subject of engineers' and architects' employment, f
A subcontractor in New York can have no lien for work done under a
subcontract for the contractor when nothing is due the principal contractor
under the contract;' and if the contractor has abandoned the work before
a substantial completion of the structure according to his contract, then
nothing is due him, and the subcontractor can recover nothing."
When the contract expressly provides that the owner may complete the
work in the case of the contractor's default, and deduct the expense from
the contract price, failure of the contractor to complete the work does not
prevent the lien of a subcontractor from attaching to the balance due the
contractor after the owner's completion of the work; and it is immaterial
that the owner has seen fit not to exercise his option, and not to do what he
claims the contractor refused or neglected to do, where the expense of doing
the things not done can be definitely ascertained/ In Illinois the rights of
a subcontractor to have a lien, under Chapter 83, is not dependent upon the
right of the original contractor to have an architect's certificate.^
765. Contractor's Bond to Pay all Claims for Materials and Labor Fur-
nished or Used. — Another means of protection employed, chiefly by munici-
pal and quasi-public corporations, to insure the payment of claims for labor
and materials employed in the construction of works, and to avoid the filing
of liens against the property, is to require the contractor to furnish a bond
that he will deliver the works to the owner "free from all claims and liens
of whatever description," or " that the contractor shall pay all claims for
materials, labor, etc., and produce proper receipts therefor to the owner or
his engineer."
'Cassidy?). Aldhous, 27N. Y. S. 267. Trustees Masonic Hall (Sup.), 27 N. Y.
2 Semble. McKee v. Rapp (Super), 35 N. Supp. 951 ; Cook v. Williams (Pa. Sup.)^
Y. Supp. 175. 24 Atl. Rep. 746.
'Beeclier v. Shuback, 23 N. Y. Supp. ^Blakeslee v. Fisher (Sup.), 21 N. Y.
604 ; semble, Sayre Lumb. Co. v. Union Supp. 217 ; accord, Ogden v. Alexander
Bank (Colo. App.), 41 Pac. Rep, 844; but (N. Y. App.), 35 N. E. Rep. 638.
see cases in 15 Amer. & Eng. Ency. Law ^Brin v. Larimer, 62 111. App. 657.
126-7 et seq. ; and see contra, Bates v.
* Jones on Liens; Phillips on Liens; Overton on L'ens; Lloyd on Building Con-
tracts ; 15 Amer. & Eng. Ency. Law, pp. 1-204 : Dillon's Munic. Corp'ns.
I See Sees. 860-863, infra. % ^ Sec. 762, supra.
§ 765.] CONTRACT STIPULATIONS, 703
A city has general power in letting contracts for public improvements,
and without an express statute or ordinance, to require contractors to fur-
nish a bond to secure the payment of materialmen and laborers.* Some-
times city charters require that a bond be taken for the security of laborers
and materialmen when contracts are let for public improvements, but if the
officers of the city neglect to take such a bond, the city is not liable to such
materialmen and laborers.'
When such a bond has been required and it is evident that the bond was
made for the direct and primary benefit of the materialmen or laborers, as
when it repites that the contractor shall pay for all materials and labor fur-
nished him in executing the contract,^ it is held in some courts that one
who has furnished labor and materials to the contractor may sue on the
bond." Such materialman cannot sue upon a bond given by the con-
tractor for the faithful performance of his contract unless it was shown
that it was primarily for the benefit of said materialman/
The materialmen of a subcontractor cannot sue upon the contractor's
bond which guaranteed the faithful performance of the work and that the
contractor should pay all debts incurred by him in the prosecution thereof.*
Where the contract reserves the right to withhold a part of the money
in case the contractor fails to pay claims for material and labor, the con-
tractor cannot, by an assignment of moneys so withheld, give the assignee
any standing to participate in the fund until labor and material claims
have been paid.'
Subcontractors cannot obtain liens in excess of the amount which the
owner has agreed to pay the original contractor;/ and it has been held
that the owner may make payments to the principal contractor according to
the contract, although he knows that subcontractors have been furnishing
labor and materials, and have not been paid for them, and without any
liability to such subcontractors. It has been held that the owner may pay
the principal contractor in advance of the engineer's estimate if he has not
paid more than the contractor is entitled to by his contract.'
The constitutionality of lien laws has been questioned on the ground
that they apply to a special class of contracts and place a burden on the
owner of real estate that is not borne by the owner of any other class of
property, and for the additional reason that they deny to the owner of real
J Lyman v. City of Lincoln (Neb.), 57 64 Iowa 561.
N. W. Rep., 531; Doll «. Crurae (Neb.), 59 « Parker v. Jeffry (Oreg.), 37 Pac. Rep.
N. W. Rep. 806; St. Louis v. Von Phul 712.
(Mo. Sup.), 34 S. W. Rep. 843; hut see a • Faurote v. State (Ind.), 11 N. E. Rep.
dictum ill Knapp v. Swaney, 56 Mich. 345 472. 790 [1887].
[1885]. ' Greenville Sav. Bank v. Lawrence (0.
» Ink V. Duluth (Minn.), 59 N. W. Rep. C. A.), 76 Fed. Rep. 545.
960. hut see Staffon v. Lyon (Mich.), 68 N. * Main Street Hotel Co. v. Horton Hard-
W. Rep. 151. ware Co. (Kan. Sup.), 43 Pac. Rep. 769.
3 Doll V. Grume (Neb.), 59 N. W. Rep. ^ Epeneter v. Montgomery Co. (Iowa),
^06. 67 N. W. Rep. 93; Kauffmann v. Cooper
* Doll V. Crume, aupj'a; Baker v. Bryan, (Neb.), 65 N. W. Rep. 796.
704 EJ^QINBERINQ AND AHGHITEGTURAL JURISPRUDENCE. [§ 766.
property the right to enjoy and possess property and contract in relation
thereto, regardless of any police regulation/ The lien laws are usually
upheld by the courts. Their constitutionality has not been questioned until
quite recently.
766. Liens on Public Buildings. — Contractors will always do well to-
remember that if the statute in respect to mechanic liens does not expressly
include public buildings, they can have no lien against them, and it has.
even been held that a grant of liens against ''all buildings" did not include
public buildings and grounds." Public property of every description can-
not be the subject of a mechanic's or builder's lien unless the statute
expressly so provides. It is by implication excepted from lien statutes as
much as from general tax laws, and for the same reasons.' Public property
that has been held to be exempt from mechanic's lien includes the public
buildings and lands of the state, counties, towns, and cities, such as court-
houses, jails, fire-bell towers, water-works, bridges, schoolhouses, reform
schools, and state universities, and even churches.*
In some states the structures of quasi-^MhliG corporations are exempt
from the operation of the mechanic-lien law, such as water-works of a water
company.^
767. Contractor's Possession of a Building for Purposes of Construction Is
Not a Tenancy. — When a contractor finds to his disappointment that he is
not entitled to a lien upon a building he makes a mistake in trying to hold
possession of it until his work and materials are paid for. In Wisconsin a
contractor, having possession of premises for the purpose of erecting and
completing a structure thereon, cannot exclude the owner of the premises
without being liable to be removed and fined.' Ordinarily when the rela-
tion of master and servant or of employer and employee exists between the
owner of premises and a person who is occupying them, and the possession
1 Palmer v. Tingle, 9 Ohio Cir. Ct. Rep. v. Freeholders, 39 N. J. Law 347; Bd. of
708; but see Gimbert «). Heinsath, 11 Ohio Ed. v. Neideuberger. 78 111. 58; Loring ®.
Cir. Ct. Rep. 339; aud Blair Brick Co. v. Small, 50Iowa271; 15 Amer. & Eng. Ency-
Walz (Com. PL), 1 Ohio L. D. 193, coTi^ra. Law 29; Phillips' Mechanics' Liens [2d
2 Atascosa Co. v. Angus (Tex.), 18 S. W. ed.], gj^ 179 and 459; Kneeland's Mechanics'
Rep. 562 [1892]; Leonard v. Brooklyn, 71 Liens, §84.
N. Y. 499; Foster v. Fowler, 60 Pa. St. 27; * 15 Amer. & Eii^. Ency. Law 29. 30;
Guest 1). Water Co. (Pa. Sup.), 21 Atl. Loring v. Small, 50 Iowa 271, bridges;
Rep. 1001; Board 'D. Gillen, 59 Miss. 199; Board v. Salt Lake P. B. Co. (Utah), 44
Secrist 'V. Board, 100 Ind. 59; Fatout v. Pac. Rep. 709, sr.hool buildinqs; Louisville
Board, 102 Ind. 224; Board v. O'Conner, 86 v. Leatherman (Ky.), 35 S. W. Rep. 625.
Ind. 531: Whiting?). Story Co., 54 Iowa 81; ^ Phillips' Mechanics' Liens §180: Fos-
Breneman v. Harvey, 70 la. 480; Thomas ter v. Fowler, 60 Pa. St. 27; Leonard «.
9). School Dist.. 71 111. 284; Hovey v. E. City of Brooklyn. 71 N. Y. 498: Wilkinson
Providence (R. L), 20 Atl. Rep. 205; Dallas v. Hoffman, 25 Fed. Rep. 175, and note
t). Loonie (Tex.), 18 S. W Rep. 726 [1892]; McNeal Pipe & Foundry Co. v. Bullock
Jones' Liens, § 1875; Phillips' Mech. Liens (Ala.). 38 Fed. Rep. 565, but contrnin Wis-
§ 179; 2 Dillon's Munic. Corpn's § 577; Mc- consin, Oconto Water Co. v. Nat. Found.
Gregor v. Cook (Tex. App). 16 S. W. & Pipe Wks. (C. C. A.). 59 Fed Rep. 19.
Rep. 936. « City of P. v. Bell, 66 Wis. 327 [1886];
' Knapp V. Swaney, 56 Mich. 345 [1885]; see St. Mary's Market Co. ■». New Orlean**
Poillon V. Mayor, etc., 47 N. Y. 666: Bon- (La.), 16 So. Rep. 831.
ton V. McDonough Co., 84 111. 384; Frank
§ 769.] CONTRACT STIPULATIONS. 706
is incident to the service or employment, the relation of landlord and ten-
ant does not exist, and whether or not the relation is that of a tenant or an
employee is a question of fact.' *
The letting of a contract to do such shoring "as required by law "of
the walls of an adjacent building is not a direction or authority to the con-
tractor to commit a trespass on adjacent property, nor is the owner liable
for injuries caused by the contractor's entry without license and against the
protests of the occupants." If the contractor be a servant then the owner
may be held liable^ for nominal damages and for any actual and conse-
quential damages naturally caused by the breaking and entering, but not
for larceny committed by his servants.'
A contractor generally has no lien on the property upon which he has
worked for damages suffered from the breach of his contract. His lien is
confined to the value of the work and materials he has actually furnished.*
768. Burdens Created upon Property by Unauthorized Agents. — In con-
nection with mechanic's liens, owners and companies should be warned of
the evil consequences of the acts of employees, servants, agents, and even
of contractors. In many states the laws are such that the owner's agent,
trustee, contractor, subcontractor, engineer, architect, builder, or lessee, or
his wife, or her husband may render the property of their principal sub-
ject to a mechanic's lien by contract for labor and materials furnished on it.*
By the law of contracts these parties could not bind the principal or owner
by their promises or unauthorized acts, yet under the lien laws the property
of the principal is made liable for the unauthorized acts of his agents and
even of strangers, f
A contractor who erected a building under a contract signed by a num-
ber of individuals, each of whom signed for a specific sum, binding himself
only to that extent, may, after the subscribers have organized into a corpora-
tion, which is vested with the title to the property, maintain a single action
to enforce a mechanic's lien on the property for the amount of the unpaid
subscription, although neither the corporation nor the stockholders who
paid their subscriptions are bound for the indebtedness."
769. Provision for Progress Certificates and Partial Payments.
Clause: "In order to enable the said contractor to prosecute the
work advantageously, the engineer shall, once a month, on or about
' 12 Amer. & Eng. Eucy. Law 664, and hut see People's 8. L. & B. Ass'n v. Spears
eases collected. (Ind.), 17 N. E. Rep. 570 [1888]; and see
2 Ketcham v. Newman (N. Y. App.), 36 Marshall v. Cohen (Com. PI. ). 32 N. Y.
N. E. Rep. 197. Supp. 283, which he'd that there need be
^ Searle v. Parke (N. H.), 34 Atl. Rep. no contract; and Hankinson v. Van tine
744. (N. Y. App.), 46 N. E. Rep. 292.
" Morgan «. Taylor, 5 K Y. Supp. 920 « Davis & Rankin Bldg. & Manuf g Co
[1889] V. Vice (Ind. App.), 43 N. E. Rep. 889.
' 15 Amer. & Eng. Ency. Law 69-70;
* See Sees. 466, 469-470, supra. f ^ee Sec. 33, 553, 872-380, supra-
706 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 770.
the last day of each month, make an estimate in writing of the amount
of work done and materials delivered, and of the value thereof, accord-
ing to the terms of this contract. The first such estimate shall be of
the amount or quantity and value of the work done and materials deliv-
ered since the part., of the second part [contractor] commenced the
performance of this contract on part; and every subsequent
estimate (except the final one) shall be of the amount or quantity and
value of the work done since the last preceding estimate was made.
Such estimates of amount and quantity shall not be required to be
made by strict measurement, or with exactness; but they may, at the
option of said engineer, be approximate only. Upon each such esti-
mate being made, and not until then, will the parties of the first part
pay to the part. . of the second part 80 to 90 per cent, of such esti-
mated value; and whenever, in the opinion of the engineer, the part. .
of the second part shall have completely performed the contract on
part, the said engineer shall so certify, in writing, to the
owner, company, or commissioners; and in his certificate shall state,
from actual measurements, the whole amount of work done by the said
part. . of the second part [contractor], and also the value of such
work under and according to the terms of this contract; and on the
expiration of thirty days after the acceptance by said owner, company,
or commissioners of the work herein agreed to be done by the part. .
of the second part, the said parties of the first part will pay to the
said part., of the second part, in cash, the amount remaining after
deducting from the amount or value contained and stated in the
last mentioned certificate all such sums as shall theretofore have been
paid to the said part . . of the second part under any of the pro-
visions in this contract contained; and also all such sum or sums
of money as by the terms hereof they are or may be authorized to
reserve or retain; provided that nothing herein contained shall be
constrtied to affect the right hereby reserved of the said owner, com-
pany, or commissioner to reject the whole or any portion of the
aforesaid estimate should the certificate be found, or known to be,
inconsistent with the terms of this agreement, or other »vise improperly
given.'' *
770. Provision for Failure to Make Monthly Payments.
Clause: "It is further expressly agreed and understood that if the
above payments are not made as hereinbefore provided when the same
shall become due and payable, the said owner, company, or city shall
be liable to the contractor for interest on the same at the legal rate so
long as they shall remain unpaid, and if such default shall continue
for a period of more than , days the contractor may, by written
notice delivered to the owner, company, or city, or at its usual place of
business, terminate this contract, f
. 771. Provision that Certificate of Engineer or Architect shall Be a Condi-
tion Precedent to Partial or Final Payments.
Clause : *' That the following conditions as' to payments shall be
specially observed and included with the several o'ther conditions in
this specification contained; that is to say, provided always that no
* See Sees. 447-462, supra. f See Sec. 686, supra.
§ 772.] CONTRACT STIPULATIONS. 707
sum or sums of money shall be considered to be due and owing, nor
shall the contractor make or enforce any demand whatsoever upon or
agaiiist the board, for, or on account of, any work executed by him,
unless the contractor shall have delivered from time to time, and at all
times within one week from the expiration of the month on which the
amount of work then claimed for has been performed, a true and proper
claim or claims in such form as the engineer may direct, nor unless the
engineer shall have certified or recommended the amount to be paid as
such installment or balance to the contractor, and that the contractor is
reasonably entitled to such installment or balance respectively; nor
shall any such sum or sums of money be considered payable to the con-
tractor until the expiration of seven days from the date of such cer-
tificate, nor shall any omission to pay the amount of such certificate at
the time the same shall be payable be held or deemed to vitiate or avoid
the contract. Nor shall the three amounts herein provided to be lastly
paid (that is to say, the two last advances to be made and the final bal-
ance) be considered to be due and owing at the times above stated,
unless that within three months from the date of completion, delivery,
and acceptance, as aforesaid, the contractor shall have delivered to the
board a full account in detail of all claims he has on the board in
respect of the works; and that the engineer shall have made and de-
livered to the contractor a certificate in writing of the correctness of
such claims, and provided also that the engineer shall have certified
that such works have been inspected by him since the expiration of
the said period of three months, and found to be in good and sub-
stantial order; and that the contractor has duly delivered to him cer-
tificates in writing from the , and other proper
a.uthorities that all works or matters under their control which have
been in any way interfered with have been properly reinstated and made
good, and all expenses and demands in respect thereof paid by the con-
tractor, and that he also shall have certified that all claims and demands
which have been made for, or in respect to, damage or loss by, from, or
in consequence of, the said works, have been satisfied agreeably to this
contract, and that he has no reason to believe that any other such claim
exists. Provided always that with respect to any disputed or unadjusted
claim or claims the contractor shall not be entitled, before the final set-
tlement of the contract, to any payment, on account or otherwise,
unless and until the engineer shall certify the correct amount of such
claim or claims, nor unless and until the contractor shall give his
receipt in discharge thereof. And, provided further, that no certificate
or recommendation or payment on general account shall betaken to be
an admission of the due performance of the contract, or any part
thereof, or of the accuracy of any claim, nor shall it conclude or prej-
udice the power of the engineer, or the settlement of the contract, and
the determination of the sum or sums or balance of money to be paid or
received from the contractor, or in any other way vary or affect the
contract entered into by the contractor."
772. Engineer's Certificate should be Made a Condition Precedent x,o
Owner's Liability. — This subject has been carefully and fully discussed in
Chapters XII, XIII, Sees. 335-417, to which the reader is especially
referred.
708 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 773.
773. Special Provisions as to Payments.
Clause: "Subject to the conditions in this contract contained the
contractors shall be paid in the manner following, that is to say:
From time to time until the contractors shall have executed upon the
site of the works, permanent work to the full value of $100,000, the con-
tractors shall be paid at the rate of 85 per cent, upon the value of the
work so executed, after which, and from time to time, until the con-
tractors shall have executed upon the site of the works permanent work
to the full value of $250,000, the contractors shall be paid at the rate
of 90 per cent, upon the value of the further work so executed. After
permanent work to the full value of $250,000 has been completed, the
contractors shall from time to time be paid in full upon the value of
the further work executed, until the completion of the whole of the
works. The above payments shall be made only upon the engineer's
estimate of the approximate value of the works executed, and in respect
of permanent work only, except as hereinafter mentioned. No advances
shall be made upon plant, but the engineer may, if he thinks lit, certify
from time to time for advances upon materials delivered on the site of
the works, but not fixed, at a rate not exceeding 60 per cent, of his
estimate of the value of such materials. Payments shall in no case be
made at more frequent than monthly intervals. The balance of the
moneys payable to the contractors under this contract shall be retained
in the hands of the board of public works and paid to the contractors by
installments, that is to say: When the engineer's certificate of comple-
tion shall have been given, a sum equal to 50 per cent, of the said bal-
ance shall be paid to the contractors, a further 25 per cent, of the said
balance shall be paid at the expirations of three calendar montlis after
' the said certificate of completion, and the remainder of the said balance .
' shall be paid to the contractors at the expiration of twelve calendar
months after such certificate of completion as aforesaid, but only on
condition that the terms of the contract have been fulfilled.''
774. Provision that Engineer's Estimate and Certificate shall be a Condi-
tion Precedent to any Claim of Contractor to Payment.
Clause: "It is expressly agreed by the parties hereto that no sum or
sums of money shall be considered to be due or owing, nor shall the con-
tractor make any claim against, or demand upon, the said corporation for,
or on account of, any work executed by him or any materials furnished,
nor make any claims whatsoever growing out of, or resulting from, this
contract, nor on account of any extra work, nor for any extra work, pros-
pective profits, damages or losses, unless, and until, the said engineer
shall have estimated and certified the amount thereof in writing, sub-
scribed, and sworn to, and shall have certified that the work has been
done according to the contract and specification, and that the contractor
is reasonably entitled to such installment or balance thereof."
775. Provision that Engineer's Estimate and Certificate shall Be a Condi-
tion Precedent to Payment by Owner.
Clause: " The said part. . of the second part further agree. . not to
demand or be entitled to receive payment for the aforesaid work, or
materials, or any portion thereof, except in the manner set forth in this
agreement; nor unless each and every one of the promises, agreements.
§ 778.] CONTRACT STIPULATIONS. 709
stipulations, terms, and conditions herein contained to be performed,
kept, observed, and fulfilled on the part of the said part . . of the second
part has been so far forth performed, kept, observed, and fultilled; and
the said engineer shall have given his certificate to that effect. Where-
upon the said owner, company, or city will, within thirty days after
such completion and the delivery of such certificate, pay, or cause to be
paid, the said contractor, in cash, the moneys then due to the said con-
tractor under this contract, excepting such sums as may be lawfully
retained under any of the provisions of this contract hereinbefore set
forth."
776. Provision that Owner will Pay on Performance of Conditions and
tendering of Engineer's Certificate.
Clause: ''That in consideration of the covenants and agreements
herein contained to be kept and performed by the contractor, the owner,
or company, hereby agrees to pay to the said contractor the sum
of . . . dollars {%..._ ), upon the written certificates issued
by the engineer or architect, as the w^ork proceeds, each payment not to
exceed eighty-five percent. (85^) of the value of the materials used and
labor performed, as estimated by or for the engineer or architect, less
the total amount of accrued liens as disclosed by the contractor's affi-
davit or other notice required by the laws of the state of ; which
said certificate shall be paid immediately upon presentation; and a
final settlement as to the remainder (and all extras, if any) shall be had
and paid within forty (40) days after the work shall have been com-
pleted, and provided it is shown to be free from all claims, liens, and
charges whatsoever, tind the engineer or architect shall have certified
thereto in writing." *
777. Provision that no Payments shall be Due except upon the Engineer's
Certificate.
Clause: "Provided always that no money shall be considered to be
due or owing, and that the contractors shall not make any claim against,
or demand upon, the company for, or on account of, any work executed
or materials furnished by the contractors, unless the engineer shall
certify the amount due therefor, and that the contractors are reasonably
entitled to such installment and balance respectively, nor unless such
certificate shall have been presented to the secretary of the company;
nor shall any such sum or sums of money be considered payable to the
contractors until the expiration of seven days after such certificate shall
have been so presented, nor shall any omission to pay the amount of
such certificate, at the time the same shall be payable, be held or deemed
to vitiate or avoid this contract, but in such case the contractors shall
be entitled to interest thereon at and after the day it is due, at the rate
of ten (10) per cent, per annum for such time as such omission shall
continue."
778. Promise to Pay Omitted. — If the promise to pay on the part of the
owner has been omitted from the contract, the law will imply a promise when
* From World's Columbian Exposition Coastructioa Contract, with slight modifi-
cations.
710 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 779.
the contract under seal contains mutual covenants, and imposes an obliga-
tion on one party, to pay money to the other, but contains no promise to pay
it, and the contract having been performed in all other respects, the money
may be recovered in an action of assumpsit/
These cases should not, however, be any argument or excuse for not
making the promise an express term of the contract or declaration.*
779. Provision that Progress .Certificates shall not Prejudice Right of
Owner or City to Require full Performance of Contract.
Clause : " Provided always, that no advance or partial payments shall
be taken as an admission of the due performance of this contract or any
part thereof, or of the accuracy of any claim or of any amount of work
performed, or in any way limit or prejudice the power of the said engi-
neer or board of public works under this contract, anything to the
contrary notwithstanding." f
780. Provision Making Final Certificate Conclusive and Binding over
Progress Certificates.
Clause : " It is further expressly understood and agreed, by and be-
tween the parties hereto, that the action of the engineer, by which the
said contractor is to be bound and concluded according to the terms of
this contract, shall be that evidenced by his final certificate; all prior
partial payments or progress certificates being made merely upon esti-
mates, subject to the correction of such final certificate; which final
certificate may be made without notice to the contractor thereof, or of
the measurements upon which the same is based." X
781. Provision that Architect's Certificate Given During Progress of
Work shall not Prejudice Final Settlement.
Clause: "The payments made from time to time to the builders,
during the progress of the work, shall be held to be payments generally
on account of the contract sum, and the certificates of the architect, on
•which such payments are based, shall be held to have been given only
for the purpose of fixing the sums to be paid, and shall not in any way
prejudice the said owner in the final settlement of account, in case it
should appear that too much had been paid to the builders during the
progress of the work."
782. Provision for Payment at a Price per Unit Measure.
Clause: "And it is hereby further mutually agreed, that the said
party of the first part will perform the work embraced in this contract,
and also that the canal commissioner in charge will pay, out of the
moneys appropriated therefor, in full compensation for the same, the
following sums at the following rates, upon and according to the esti-
mate of the engineer, as hereinbefore provided :
'Varney v. Bradford, 86 Me. 510; and fatal to a declaration, which alleged the?
tee Galveston v. Devlin (Tex.), 19 S. W. execution of a contract, its performance.
Rep. 395 [1892], which held that a failure acceptance of work, and the amount due.
to allege a promise by owner to pay was not
* 8ee Sees. 342-3 and 410-414, supra \ See Sees. 442-443, 463-469, supra,
X 8ee Sees. 492-498, supra.
§ 785.] CONTRACT STIPULATIONS. 711
SCHEDULE OF PRICES.
The prices above specified are to be in full compensation for all
materials and labor required to put the same into the work herein con-
tracted for, and complete the whole in all respects, as provided in this
contract."
783. Provision Fixing Compensation at a Price per Unit of Measure.
Clause : " And the part . . of the second part hereby agree . . to re-
ceive the following prices in full compensation for furnishing all the
materials artd labor, and for performing and completing all the work
which is necessary or proper to be furnished or performed, in order to
complete the entire work in this contract described and specified, and
in said specifications and plans described and shown, to wit;
SCHEDULE OF PEICES.
}fl%
784. Provision for Payment by Schedule of Prices — Prices to Cover
Everything.
Clause: "And the said contractor further agrees to receive the fol-
lowing prices as full compensation for furnishing all the materials, and
for doing all the work contemplated and embraced in this agreement;
also for all loss or damage arising out of the nature of the work afore-
said, or from the action of the elements, or from any unforseen obstruc-
tion or difficulties which may be encountered in the prosecution of the
same; and for all risks of every description connected with the work;
also for all expense incurred by, or in consequence of, the suspension or
discontinuance of said work as herein specified, and for well and faith-
fully completing the work, and the whole therefor, in the manner of and
according to the plans and specifications, and the requirements of the
engineer under them, to wit ;
Section A. Schedule of Prices.
99
785. Provision for Payment after Performance of All Stipulations in
Manner Described — Representatives Named.
Clause: "In consideration of the full, prompt, and faithful perform-
ance and observance of the foregoing terms, agreements, and specifica-
tions, and every condition and stipulation herein contained, the party
* Jameson v. M'Innes, 15 Session Cases 17 [1887].
* By the Scotch law it has been held that terms of offer for a building contract
which, with acceptances, were held to constitute a contract according to the schedule
rates and not a contract for a lump sum, so that the offerer was not barred by an
error in calculating the lump sum from claiming the full amount brought out by his rates.
712 ENQINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 786.
of the first part hereby agrees and binds himself [themselves,] his
[their] heirs, executors, and assigns [or itself, its successors and assigns],
to pay, and the party of the second part hereby agrees and binds him-
self, his heir, executors and assigns to receive in full of all demands for
furnishing all the labor, tools, machinery, dollars
in full payment for
in the following manner, to wit:
786. Provision that All Money Due to Owner may be Recovered by
Action or may be Retained out of Moneys Due to Contractor.
Clause: "All moneys payable to the owner or company by the con-
tractor, under any stipulation herein, may be recovered by action, or
may be retained out of any moneys then due or which may hereafter
become due from the said owner or company to the contractor under
this or any other contract, or otherwise howsoever; and the engineer
shall have full power to withhold his certificate for payment of any
money to the contractor after circumstances shall have arisen which
may indicate to him the advisability for such retention as aforesaid,
though the sum to be retained may be unascertained at the time of
such withholding."
787. Provision that Final Payment shall Operate as a Release of All
Claims Against the Owner.
Clause: "And the said contractor hereby further agrees that the
payment of the final amount due under this contract, and the adjust-
ment and payment of the bill rendered for work done in accordance
with any alterations of the same, shall release the owner, company, or
city from any and all claims or liability on account of work performed
under said contract or any alteration thereof.'''
Where the contract provides that upon receiving the full amount of the
final estimate, made out agreeably to the terms of the contract, the con-
'tractor shall give a release from all claims or demands growing out of such
contract, the giving of such a release is a condition precedent to a recovery,
if tlie final estimate is not fraudulent.*
788. Provision that No Payments shall be Made until Workc are Com-
plete.
Clause: "And it is further agreed that no payment for work done
under any alteration of this contract, as aforesaid, shall be made until
the completion of the whole contract."
789. Provisio*L that Payments shall be Made out of Public Funds and
that Public Officers Incur no Personal Liability.
Clause : " The payments to the contractor herein described to be
made under this contract shall be made out of the funds specially
raised, subscribed, or appropriated for the purpose, and which are un-
der the control of the auditor, comptroller, or treasurer of the city,
' B. & O. R. Co. v. Laffertys, 13 Gratt. (Va.) 478 [1858]; B. & O. R. Co. v. Polly, 14.
Qratt (Va.)447.
§789.] CONTRACT STIPULATIONS, 713
county, state, or association, and no officer or member of the committee,
board, or commission entrusted with the direction and performance of
the undertaking, project, or works, whether or not a party to this
agreement, assumes to be, or is, personally liable to the contractor in
regard thereto in any way whatsoever." *
When work is to be paid for out of a special fund, upon vouchers drawn
by a board of public works, or committee, as of a public library of a city, the
city itself is not liable on the contract made by such a committee.' The
general fund of a city cannot be resorted to- for the payment of warrants
issued for public improvements, unless the right to create the special fund
against which such warrants were drawn, by assessment on the property bene-
fitted, has been lost by the negligence of the city." Parties seeking payment
from bugeted appropriations are restricted to such appropriations, and have
no right of action against the city until there are funds to the credit of
such appropriations.'
A contract for street improvement provided that the contractor should
make no claim against the city in any event except for the collection of the
special assessments, and that the city would not be liable in any event be-
cause of their invalidity,, or failure to collect the same. After the work
was done, the city council, by resolution, directed all proceedings for the
collection of the assessment stayed, and the assessment was not collected
for at least one year after it should have been collected ; it was held, that the
contractor was not entitled to collect from the city interest on the assess-
ments for the time their collection was delayed, under the statute providing
for interest where money is withheld by an unreasonable and vexatious de-
lay of payment.* An assessment for a municipal improvement cannot be
made after the city has paid for the completed work out of its general
fund/ t
AS KEGARDS PATMEN"T.
The matter of payment is one that can scarcely be confined to a section
or chapter. Throughout the book the discussion has been in regard to lia-
bility, recovery, and payment, the latter subject being ever recurring. To
attempt to detach or isolate the subject would be to invite the reader to go
over a large part of the entire book, which the author will not venture to do.
Attention is invited to some sections where payments have been the special
text of a section. J
' Board of Public Library «. Arnold, 60 So. Rep. 935.
111. App. 328. 4 Yi.ier tj. Chicago (111. Sup \ 45 N. E.
2 Stephens v. Spokane (Wash.), 45 Pac. Rep. 720, 60111. App. 595, affirmed.
Rep. 31. 6 Alford v. Citv of Dillas (Tex. Civ.
Wadsworth d. New Orleans (La.), 19 App.), 35 S. W. Rep. 816.
* 8^e S6cs. 30-42, supra, and 850-859, infra. \ See Sees. 44-47.
X See Sees. 7-9, 16, 58, 109, 112, 330-334, 407-410, 472-476, 560, 593-602, 674-680, 686.
701, 750-768, supra. For provisions in regard to payments, see Sees. 769-789, supra.
714 ENOINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 790.
790. Provision that Notices may be Sent to Contractor's Place of Business.
Clause: "Any notice or other communication which this contract
provides may be given or made. to the contractor, shall be deemed to be
well and sufficiently given or made if the same be served on the con-
tractor or addressed to him at his domicile or usual place of business,
or at the place where the work hereby contracted for is to be or is be-
ing carried on, or it may be left post-paid at the general post-office, in
the city of , and any papers so addressed and left post-
paid at the said post-office shall, to all intents and purposes, be consid-
ered to be and to have been legally served upon the said contractor." *
791. Contract Executed in Triplicate — What it Comprises.
Clause: "The parties hereto agree that this contract shall be in
writing and executed in triplicate, one of which triplicate copies shall
be kept by the said board, one be delivered to the auditor, controller,
etc., of the city of or state of , and one to the said
contractor ; that the contract shall include and comprise the written
articles of agreement, the plans and specifications described therein
and attached thereto, the proposals, estimate of the contractor, the
schedule of prices and bond(s), submitted and executed day of
, 189 . ., in connection therewith."
792. Extent of Contract.
Clause: "This contract comprises the formation, execution, and
completion of the works described in the specification in the first sched-
ule hereto and shown and described by the plans and sections, and upon
the drawings, and further set out in the proposal and bill of quantities
referred to herein and hereto attached, and all extra work which may
be ordered under the powers herein contained; such drawings and
specification, bill of quantities, etc., are to be considered as explanatory
of each other ; and should anything appear in the one that is not de-
scribed in the other, no advantage shall be taken of any such omission."
793. Acknowledgment by Parties that Contract has been Read before
Executing it.
Clause : " It is further agreed and admitted that the parties hereto
have carefully read and considered the terms, agreements, and stipula-
tions of this contract and specifications, and have studied with care the
plans and drawings referred to therein to become acquainted and
familiar therewith, and have executed, signed, and delivered the same
with full knowledge of their contents, import, and requirements." ' f
794. Contract Executed without Reading It. — The law never requires a
person to execute any written instrument without first becoming acquainted
* Ordinary construction contracts are not writing, as required by the Statute of
required to be executed in writing unless Frauds. Construction or working con-
they are within the Statute of Frauds. If tracts should invariably be executed in
the compensation be an interest in lands, writing, for reason perfectly evident from
or the contract in any way affects or con- what precedes. — Lloyd's Law of Building
veys an interest in land, then it must be in (2d ed.), § 3.
* See Sees. 95, 135, supra. f See Sees, 98-111, supra.
§ 794.] CONTRACT STIPULATIONS, 715
with its contents.* When a person has signed a written contract, the law
presumes that he has read the instrument which he signed;' and if a con-
tract has been voluntarily signed and executed with full means of learning
its contents, there being no misrepresentation or fraud, it cannot be avoided
on the ground of negligence, failure, or omission to read it.' This rule
was applied to the terms and conditions of a telegraphic message blank.*
Where a person who can read signs his name to an instrument, he is
presumed to know its contents, so that, if he attacks the instrument for
fraud, asserting that it does not contain the whole contract, or contains
more than the contract, the burden is on him to show fraud.' Fraud is never
presumed, but must be clearly proved, in order to entitle a party to relief
on the ground that it has been practiced on him."
The signing must be with the intent to execute the instrument as a
contract or it will not bind the parties/ As where a person induces another
to sign a paper containing no writing, and which is to be used merely as a
means of identifying the signer, who does not intend to execute a note or
contract' of any kind, and then the blanks are filled out so as to make the
paper a note, the note will be void even in the hands of an innocent
holder/ The person signing the contract must not be guilty of negligence
or at fault, for the court will see that an innocent purchaser who has ex-
ercised every reasonable precaution shall not suffer by the fault of the
maker. It has been held that the signer of a paper with unfilled blanks. is
not in itself negligence.® A contract signed and delivered leaving blanks
in it makes the party receiving the contract an agent to fill in the blanks in
the way contemplated by the maker.* The signing of a writing through
mistake as to its contents imposes no obligation upon the signer.'"
Whether a person who has signed an instrument which declares that
both parties have read it, can plead that he did not read it or that he did
not comprehend it, or did not understand it, is a question; there is no rule
in equity that he cannot make such a defense. Certainly the defense that
he did not read it nor know what it contained, would be as strong as in any
case. If he has not been guilty of neglect or carelessness he should have
1 Hazard v. Griswold, 21 Fed. Rep. 178; Hep. 491.
Weller's Appeal, 7 Ont. (Pa.), 594. » Davidson «. Crosby (Neb.), 68 N. W.
* Cawpan ■?;. Lafferty, SOMicb. 114; Foye Rep. 338; and see Dellinger v. Gillespie
«. Patcb, 132 Mass 105; Smith v. Monroe, (N. C), 24 S. E. Rep. 538; and Coramon-
84 N. Y. 354; accord. Penn. v. Brasbear, wealtb ?;. Julius (Pa.), 24 Atl. Rep. 21.
2 Mo. App. Rep. 1182; Clark v. Pope, 70 ■» Morrill v. Mill Co., 10 Nev. 125; Grier-
111. 128. son v. Mason, 60 N. Y. 394; Armstrong v.
"' Thompson v. Riggs, 6 D. C. 99; Bacon McGlue. Addison 261; but see Chu Pawn v.
«. Procter (Com. PI.), 33 N. Y. Supp. 995; Irwin (Sup.), 34 N. Y. Supp. 724.
Chu Pawn v. Irwin (Sup.), 31 N. Y. Supp. » First Nat Bank v. Zeims (Iowa), 61 N.
724; Lumley i). Wabash Ry. Co. (C. C), W. Rep. 483.
71 Fed. Rep. 21 ; Kingman & Co. v. Reine- « N. E. Loan & Trust Co. v. Brown, 1
mer (111.), 46 N. E. Rep. 786 [1897]. Mo. App. Rep. 62.
■» Becker v. Western Un. Tel. Co., 11 ^o Pictou v. Graham, 2 Des. 592; Miller
Neb. 87 [1881]; and cnsen cited. v. Gardner, 49 Iowa 234; Schaper v. Grad-
» Robinson v. Donahoo (Ga.), 25 S. E. ner, 84 111. 603.
716 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 795.
the same defense whatever the contract terms may be. The fact that it
contains a statement that he has read the contract would have no force if
he had no knowledge of such stipulation. To avoid the question, with a.
party who is illiterate or absent-minded, he may be asked to indorse upon
the contract a declaration that he has read the contract, or that his attorney
or clerk has read it to him.
In order to charge one who can neither read nor write with liability on
a written instrument, it must be shown that the contents of the paper were
fairly read or explained to him, after which he will be presumed to under-
stand the import of the paper which he signs.' If an illiterate man have a
deed falsely read to him and he then seals and delivers the instrument, it is^
nevertheless not his deed.^ Such a case contains a declaration of fraudulent
practice, but an allegation that the contract was signed " in the haste and
excitement of the court-room and does not contain the agreement as made"
is insufficient, as there is no allegation therein of fraud or misrepresentation,
or that defendant was induced by any parol promise, which was subsequently
broken, to sign."
795. What Is or Is Not a Signature. — A signature consists both of the
act of writing one's name and of the intention to be bound by the contents
of the instrument which he signs.* The intention to be bound is pre-
sumed, and the signature may consist of the subscribing of the party's name,,
or the initials of his name, or by any mark, if made to show his intention
to be bound by the terms of the written instrument. A cross or mark
will hold even though the party could write.* The Christian name alone
has been held a sufficient signature to a will." The middle letter is not an
essential part of a man's name, and its omission may be disregarded.^ At
common law a man may lawfully change his name, and he is bound by any
contract into which he may enter by his adopted or reputed name, and by
his known or recognized name he may sue or be sued." So a contract
encored into by a corporation under an assumed name may be enforced by
either of the parties, and the identity of the company may be established
by the ordinary methods of proof."
The signature is sufficient if it is made by another, guiding the signer's
hand, with his consent;'" and if it is not essential to the validity of the con-
tract that it be in writing, one of the parties may, on request, and in the
1 Green v. Maloney (Del.), 7 Houst. 22. Atl. Rep. 21.
2 Co}e V Williams, 12 Neb. 440; Webb ^ 22 Ainer & Eu2^. Ency. Law 781.
«. Corbin, 78 Ind. 403; Sufieern v. Butler, « Knox's Estate, 131 Pa. St. 220.
36 E. Green 220; Sims ?j Bice, 67 111 88; ' Jackson v. Bims (N. Y.). 9 The Re-
, Skym t). Weske Cons. Co. (Cal ), 47 Pac. porter 751; Allen v. Taylor, 26 Vt. 59&
1 Rep. 116; Trambly v Richard, 130 Mass. [1854]; Riley v. Hicks (Ga.). 4 S. E. Rep.
1 259; see also North v. Williams (Pa.), 13 173, in an award.
I Atl. Rep. 723 [1888]; and Brown v. Eccles, « Linton «. First Nat. Bank, 10 Fed. Rep.
3 Pa. Super. Ct. 192; Woo^bridge v. De 894 [1882].
Witt (Neb.), 70 N. W. Rep. 506. ^ Marniet Co. v. Archibald (W. Va.), 17
1 3 Reilly v. Daly (Pa.), 28 Atl. Rep. 493. S. E. Rep. 299.
4 8ee Commonwealth v. Jalius (Pa.), 34 ^^ 22 Amer. & Eng. Ency. Law 781.
§ 796.] CONTRACT STIPULATIONS. Ill
other's presence, affix the latter's signature to the instrument/ or it may b©
printed with his sanction and consent.''
796. Contract Signed by One Party Only. — The signatures of both of
two parties to a simple contract in writing are not essential to its validity.
If one of them signs and delivers it, and the other accepts it and acts accord-
ing to its terms, it then becomes a binding contract on both parties." The
acceptance and recording of the contract by one party has been held to
complete it, though he did not sign iV Such a contract, though signed by
but one party, has the element of mutuality; the other party simply has no
corresponding evidence of the contract, which, under the law, i^ enforceable
only when " in writing, signed by the party to be charged." ^ If there be
two copies of the contract, one signed by each of the two contracting
parties, it is binding upon both to the same extent as if there had been only
one "copy of the agreement and both had signed it.^ If the contract be not
signed there is a presumption that the contract was abandoned, to overcome
which it must be shown that the owner, not signing, authorized or encour-
aged the contractor to undertake the work/
A written contract, signed by the contractor and found in the possession
of the owner, is admissible in evidence on behalf of the owner, although it
has not been signed by him, since by his acceptance of it the contract has
become binding on him/ An unsigned building contract, with a bond
executed upon the back of it, has been held to be binding." The fact that
the contractor did not sign the bond conditioned on performance of the
contract will not relieve the sureties thereon from liability.'" Where the
covenant purported to be made between two contractors by name and a
company, and only one of the contractors signed the instrument, and the
covenant ran between the party of the first part and the party of the
second part, it was proper for the contractor who had signed on the first
part to sue alone, because the covenant inured to the benefit of those who
J Crow v. Carter (Ind. App.), 34 K E. ^Indi. Nat. Gas. Co. -». Kibby (Ind.), 35
Rep. 937; Fitzpatrick v. Eagard (Pa.) 34 K E. Rep. 392; Bryson v. Johnson Co.
All. Rep. 803. (Mo.), 13 S. W. Rep. 239.
2 22 Amer. & Eng. Ency. Law 782; hut ^Alabama Gold Life Ins. Co. -». Oliver
see Ruyner v. Limhorne, 2 C. & P. 124; (Ala.), 2 So. Rep.. 445 [1887]; Stone v.
and Farebrother v. Simmons, 5 B. & Aid. Rennock, 31 Mo. App. 544; Buena Vista
333, which held that the owner could not Co. v. McCandlish (Va.), 23 S. E. Rep.
subscribe for the contractor beneath his 781.
mark. e Morris v. McKee (Ga.), 24 S. E. Rep.
3 Muscatine W. W. Co. v. Muscatine 142.
Lumb Co. (la.), 52 N. W. Rep. 108; Vogel ' Keller v. Blaisdell, 1 Nev. 491; Burch
V. Pekoe (111.), 42 N. E. Rep. 386; Bui- r. New Lindell. 7 Mo. App. 583; Wood v.
winkle ®. Cramer (S. C). 3 S. E. Rep. 776 Silcock, 50 L. T. 251; Preston v. Luck L.
[1887]; Reedy v. Smith, 42 Cal. 245. R., 25 Ch. D. 497.
owner had paid installments, but had not ** Rigdon v. Conley (111.), 30 N". E. Rep.
signed; Bloom v. Hazzard (Cal.), 37 Puc. 1060; 31 111. App. 630, affirmed; Stephens
Rep. 1037; Fairbanks v. Meyers, 98 Ind. -y. Buffalo. 20 Barb. 332.
92 [1884J ; Girard L Ins. Co. v. Cooper, 51 » Hayden v. Cook (Neb.). 52 N. W. Rep.
Fed. Rep. 332; and see Meth. Epis. Parisli 165.
V. Cbirke, 74 Me. 110; but see Keller v. '^ Eureka S. Stone Co. v. Long (Wash,),
Blaisdell, 1 Nev. 491. 39 Pac. Rep. 446.
718 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 797.
were parties to it.* Persons who are not mentioned as the party, but who
subscribe their names to the contract after the signature of the party
named thereby, make themselves sureties to the contractor.'' Where one
copy of a contract which is to be executed in duplicate has been signed by
the parties, but is left with the attorney of one party to have a duplicate
executed, there is not a sufficient delivery of the instrument to constitute a
contract.' When one party pleads a special written contract, and the other
claims to recover on a verbal contract, and the testimony is conflicting, the
question as to which is the contract by which parties are bound is for the
jury."
797. Informal Contracts which are to be Reduced to Writing at some
Future Time. — Where persons agree that a proposed contract shall be made
in writing, such contract is not binding on either until reduced to writing
and signed,^ but where parties have exchanged letters and telegrams with a
view to an agreement, and have arrived at a point where a clear and definite
proposition is made on one side and accepted on the other, with an under-
standing that the agreement shall be reduced to a formal writing, the con-
tract is complete, though no formal writing is ever executed." There are
cases which are seemingly to the contrary; thus it has been held that a
builder is justified in suspending work on a building where the owner, in
violation of their agreement, refuses to have the contract under which the
work has been commenced reduced to writing.'' Acceptance of an offer has
been held not to show a meeting of the. minds of the parties where the
party accepting the offer, on the subsequent presentation of a written con-
tract for him to sign, containing the terms of the offer, made certain altera- .
tions therein which the other party refused to accept.®
If a proposition has been made by one party and accepted by the
other, the terms of the contract being in all respects definitely under-
stood and agreed upon, the party refusing to execute the contract is
responsible, it seems, on the breach of his agreement for the same damages
as would be recoverable for refusal to perform the contract after its execu-
tion in writing." The fact that the parties to an oral contract for furnish-
ing building material expected that a written contract embodying the same
terms would afterwards be signed does not prevent the oral contract from
• The Philadelphia. W., & B R. Co. -». * Spinney v. Downing (Cal.), 41 Pac.
Sebre Howard, 13 Howard Repts. 307 Rep. 797.
[1851]. ' " Earl, Gray, and Bartlett, JJ., dissent-
2 Tliompson v. Coffman, 15 Oregon 631 ing, in Sanders v. Pottlitzer Bros. Fruit
[1888]. Co. (N. Y. App.), 39 N. E. Rep. 75.
3 Lamar Milling & Elevator Co. v. Crad- ' Smith v. O'Donuell (Com. PI.), 36 N.
dock (Colo. App.), 37 Pac. Rep. 950; but Y. Supp. 480.
f«e Coey v. Lehman, 79 111. 173, where the ® Kirwan v. Byrne (Com. PI. N. Y.), 29
only copy signed was left with the archi- N. Y. Supp. 287; hut see Bucki ■». Seitz
tect. (Fla.), 21 So. Rep. 576.
•* Jones v. Sherman (Neb.), 51 N. W. ' Pratt «. Hudson River Railroad Co., 21
Rep. 1036 [1892]. N. Y. 305 [1860].
§ 798.] CONTRACT STIPULATIONS. 719
taking effect.' The fact that it was agreed that the verbal contract should
be reduced to writing, and that the contractor said unless this was done he
iivould not do the work by the job, but he did go on and performed a large
j)art of the work in accordance with the verbal contract, and as if it were
reduced to writing, as agreed, does not operate as a waiver of his right to
have it so written, nor prevent him from repudiating the entire contract,
and charging by the day for what he had done.*
Courts have refused to decree specific performance of a preliminary
building agreement when it was entered into with the intention of execut-
ing a more formal and complete contract, and they have refused damages
for nonperformance.' A preliminary memorandum signed by the parties
is merged in a subsequent formal contract executed by them, and therefore
is not admissible in evidence to show what the agreement was. It is
admissible for the purpose of showing the consideration.*
Where it was agreed, after arranging the terms of the proposed contract,
that the contract should be reduced to writing and signed by the parties,
and afterwards some of the parties refused to sign the writing on the
ground that it included matters not agreed on, it shows that the minds of
the parties did not meet.* If the agreement to be signed by several persona
as parties thereto is not signed by all, it is not completely executed and dees
not bind any of the parties." The signature and seal must correspond with
parties named in body of the instrument.*
798. Execution of Contract — Signed, Sealed, Witnessed, and Delivered.
Clause: " In" Witness Whereof, the said owner, commis-
sioner, or board of public works has hereunto set his [its] hand and
seal on behalf of the said parties of the first part, and the said party of
the second part hath also hereunto set his hand and seal, the day and
year first above written; and the said owner, commissioner, or
board and party hereto of the second part have executed this agreement
in triplicate, one part of which is to remain with said commissioner
or engineer, one other to be filed with the comptroller of the
*...., and the third to be delivered to the said party hereto of
the second part, the day and date herein first above written.
Signed, sealed, and delivered in presence of
[Seal.]
Owner, Commissioner, or Board of PuUic Works*
[Seal.]
Contractor."
' Cobn V. Pliiiner (Wis.), 60 N. W. Rep. * Wells v. Wells. (Sup.), 40 N. Y. Supp.
1000. 836; see Cable v Foley, 45 Minn. 421.
2 Paige ?j. The Fullerton Woolen Co. , 27 * BryaDt v. Ondrak (Sup.), 34 N. Y.
Vt. 485 [1854]. Supp. 384; and see Highland Co. v,
3 Wood V. Silcock, 33 W. R. 845 [1884], Rhoades. 26 Ohio St. 411.
50 L. T. 251. • Barber v Bui rows, 51 Cal 404.
* See Sees. 29-32, 91, and 97, suifn-a.
720 ENQINEERmO AND ARCHITECTURAL JURISPRUDENCE. [§ 799.
799. Why Is Contract in Writing ?— Why Signed, Sealed, and Witnessed %
— Construction or building contracts are usually in writing, signed, sealed
and witnessed. They are sometimes acknowledged and recorded, if the laws
or ordinances require them to be registered.
They are in writing to comply with the Statutes of Frauds, and to make-
the terms of the agreement more certain and more easily proved.' * They
are signed to evidence mutual assent and an understanding of their terms,
and the signature is the overt act which signifies the undertaj^ing of the-
obligations set forth in the instrument. f They are sealed to make the con-
tract an instrument of a higher order or class than a simple agreement, or
to create what is called a specialty. A sealed instrument or contract imports.
a consideration, and at common law it could not be modified by parol,J;and
in some places a contract under seal is given priority over a simple contract,,
as in the administration of the personal estates of a decedent." Contracts
executed by corporations or by public officers should be sealed by the cor-
porate seal of the company, though it is frequently held in the United
States that a corporation may enter into a binding contract without the us&
of its seal." All conveyances of real estates should be by sealed instrument,,
as is usually required by law.
A seal may be a drop of melted wax with the impression of a carved
stone or setting of a ring, or with the impression of one's thumb, or it may
be a mere imitation of a seal in the shape of a piece of colored paper pasted
upon the instrument and pressed into place with the thumb or finger. In
some jurisdictions it may be a stamp, a scroll, or a blot of ink, made by th©
signer of the instrument or the one who executes it. In §very case it should
either be put upon the instrument before it is executed, so that the signer
may be said to have adopted the seal, or it should be made by the party him-
self. One seal may be adopted by several signers, and it is not necessary
to have as many seals as there are signers to a document.*
The object of having the execution of a construction contract witnessed
is merely to make it more certain and easier of proof. It is not necessary
unless it includes a conveyance of real property or it is necessary to have it
recorded. If the parties desire the contract to possess all the qualities of a
specialty or deed, the statutes of some states may require that it be
witnessed.^ The act of witnessing the execution of a contract should be at
the request of the parties, and the signing should be in their presence. The
subscribing witness need not know the contents of the instrument, as he
attests only to the party's signature. If he cannot write he may make his
' It is not essential to their validity that ^ Lloyd's Law of Building & Buildings
they shall be in writing. M. & N. Sav. 7.
Bank v. Dashiell, 25 Gratt. 616; Holmes v. * See Amer. & Eng. Ency. L;iw, Seals,
Shands, 26 Miss. 639. Vol. 21, pp. 882, 914.
* 3 Amer. & Eng. Ency Law 829. ^ 1 Amer. & Eng. Ency. Law 938.
• See Sec. 105, supra. f See Sec. 89, supra. J See Sec. 561, supra.
§ 799.] CONTRACT STIPULATIONS. 721
mark, or have another sign for him, at his request and in his presence.
His initials are sufficient.* ♦
The words " made and executed " as used in a contract import a deliv-
ery of the contract,' and " signed, sealed, and delivered " have been held t»
be equivalent to " executed." '
» 1 Amer. «fe Eng. Ency. Law 941. 404.
« Elbring v. Mullen (Idaho), 38 Pac. Rep. • 1 Amer. & Eng. Ency. Law 163.
PART IV-
ENGINEER' 8 AND AEOHITEOl '8
EMPLO YMENT.
CHAPTER XXVIII.
• ENGAGEMENT OR EMPLOYMENT OF ENGINEER OR ARCHITECT.
PERFOBMANCE OF SERVICE, TERM OF SERVICE, DISMISSAL OR DISCHARGE,
AND EXTRA WORK.
800. Contract of Employment. — A contract of employment must contain
all the essentials of a contract, just the same as all other contracts. It can
not be terminated," except for good cause, until the term of service has
expired. If the employment be for a year, a month, or a day, it cannot be
terminated before the year, month, or day has expired, without sufficient
reason for the act. If no term of service has been agreed-upon, the employee
may be discharged at any time; or even ejected by force, if necessary.'
801. Term of Service. — If the service is to continue so long as the
-employer is satisfied, he may dismiss the employee at any time and without
giving any reason,' and a contract for a year, unless sooner terminated, does
not mean that either party can terminate the service without just cause.'
A contract to give an employee steady and permanent employment is not
void as against public policy, in the absence of any showing that the
employee is not able or competent to do such work as the employer may be
in a position to give him.* So if an employer, in settling with an employee
for injures, agree to employ him at a certain salary for life, or during his
ability and disposition to perform the duties required, he will be liable for
prospective damages if he discharge the employee.*
' De Briar v. Minturn, 1 Cal. 450 ; Niag- 111. App. 226; Daveny u. Shattuck, 9 Daly
ara F. Ins. Co. v. Whittaker, 21 Wis. 329; (N. Y.) 66.
Donaldson d. Williams, 1 Cr. & M. 345; 'De Briar v. Minturn, supra; Niagara
Mackay v. Ford, 29 L. J. Ex. 404. F. Ins. Co. v. Whittaker, supra.
""^Spring V. Ansonia Clock Co., 24 Hun *Penna. R. Co. v. Dolan (Ind. App.), 33
<N. Y.) 175; Glyn v. Miner, 27 N. Y. K. E. Rep. 802.
Supp. 341; Evans v. Bennett, 7 Wis. 404; ^Bj-jg^jton „^ h&kQ Shore & M. S. Ry.
Alexis Stoneware Mfg. Co. v. Young, 59 Co. (Mich.), 61 N.W. Rep. 550; 70 N. W.
722
§ 801.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT, 723
A contract of employment for an indefinite period may be terminated any
time by either party/ and one for not more than six months, or not to exceed
six months, is for an indefinite period.'
An agreement to employ a person permanently is nothing more than em-
ployment to continue indefinitely, or until one or the other of the parties, for
some good reason, desires to sever the relation of employer and employee.'
An agreement " to come to the permanent service of a company " would
probably receive the same construction. A contract of employment at cer-
tain wages, so long as the works of the employer are kept running or until
the employee shall see fit to quit, is not void for uncertainty,*
The compromise of a disputed claim for personal injuries to an employee
is a sufficient consideration for a railroad company's agreement to retain
such employee at a specified salary during his natural life, or his ability to
do the work, though the continuance of the service be optional with the
employee.'*
If the terms of employment adopt a certain length of time, as a* month,
or a year, for the estimation of wages, it raises a strong presumption that the
term of service was for the period mentioned. Therefore a contract at
$ per year is presumably for a year; at a monthly rate, for a month; ' but
the presumption is not conclusive in the absence of other evidence. It alone,
will not fix the period.' Such a contract is incomplete and ambiguous, and
parol evidence of the surrounding circumstances, the situation of the parties
at the time the contract was made, etc., may be admitted to assist the court
in interpreting its meaning.* Contracts for a year's employment, to begin
at some day in the future, which cannot be completed within a year are
void and worthless unless they are in writing, not being made in accord-
ance with the requirements of the Statute of Frauds.f
A contract of employment, at a salary per year and a certain share in the
net profits of a firm, does not make the engineer a partner in the firm."
Under an employment for an indefinite period at a specified sum per
month, which service continued for a number of years without interruption,
the contract is continuous, and the Statute of Limitations does not begin to
run until service ends." The terms of a yearly contract for services will be
Kep. 432; Penna. R. Co. -p. Dolan. supra; (Mich.), 71 K W. Rep. 148 [18971.
and see Pierce v. Tenn. C. I. & R. Co. 'Kellogg v. Citizens' Ins. Co. (Wis.), 6^
(Ala.), 19 So. Rep. 22. N. W. Rep. 362; 14 Amer. & Eng. Ency.
1 Greenburg v. Early, 23 N. Y. Supp. Law 762.
1009. '14 Amer. & Eng. Ency. Law 763r
'Campbell v. Jimenes, 27 N. Y. Supp. Fuller t). Peninsular, etc., Wks. (Mich.),.
351. , 69 N. W. Rep. 492; Haney v. Caldwell.
sLord v Goldberg (Cal), 22 Pac. Rep. 35 Ark. 156; Martin «. N. Y. Life Ins.
1126: Caring v. Carr (Mass.), 46 N. E. Co. (App.), 42 N. E. Rep. 416.
Rep. 117. 8 Porter v. Curtis (Iowa), 65 N. W. Rep.
4 Carter White Ld. Co. v. Kinlin (Neb.), 824.
66 N. W. Rep. 536. » Ah How t. Furth (Wash.), 43 Pac.
» Stearns v. Lake Shore & M. S. Ry. Co. Rep. 639.
* See Sees. 124-125, Parol Evidence, supra.
f See Statute of Frauds, Sec. 105, supra.
724 ENGmEEBING AND ARCHITECTUBAL JURISPRUDENCE. [§ 802.
presumed to continue from year to year, so long as the employment lasts,
unless the contrary is shown ; and in the absence of sufficient evidence to
-show a change in the terms of employment, proof of the original contract
will limit the right of recovery to the yearly salary at the original rate.'
802. Dismissal or Discharge of an Employee. — Mr. Smith, in his work on
Master and Servant, has named the following causes which may justify the
discharge of a servant before his term of service has expired : (1) Willful
disobedience of any lawful order of the master. (2) Gross moral misconduct,
whether pecuniary or otherwise. (3) Habitual negligence in business or
conduct calculated seriously to injure the master's business. (4) Incom-
petence or permanent disability. For convenience the author will adopt
the same order of treatment.
803. Willful Disobedience of Any Lawful Order of the Employer. — It must
not be taken that every breach of discipline or discourtesy can be made an
excuse for discharging an employee. If the employer is unreasonable in
iis orders or commands, the employee is not bound to obey them, but he
must be sure that they are unreasonable. A refusal to work at one's trade
on Sunday," or to work at unseasonable hours,' when the circumstances or
nature of the work does not make it necessary or reasonable to so work; or
disobedience of orders in matters not material to the employment,* or that
involves no serious consequences and which is not willful, in the sense of
l)eing perverse, insubordinate, or unreasonable, which question is* for a
jury;^ or slight discourtesies, hasty words, and occasional exhibitions of
irritation, or even ill-temper, especially where there are many petty causes
-of annoyance and irritation in the business,' or where the employer exhibits
impatience and irritation toward the employee without just cause,^ is not
sufficient cause for discharging the employee.
If the servant is disrespectful in his conduct,' or his deportment and
disposition are such as to injure the custom and business of the employer,
or he is insubordinate and ignores his employer's feelings and proper au-
thority,' or he uses obscene and improper language while attending to his
duties, especially when the owner does not use such language," or his con-
duct towards agents sent by his employer.to inspect his work is rude and
reprehensible," the employer will be justified in discharging the employee.
It is not a breach of a traveling salesman's contract for him to go to a
.^ Hears v. O'Donoghue, 58 111. App. 345. ' Forsyth v. Hastings, 27 Vt. 646 [1855];
^ Jacquot V. Bourra, 7 Dowl. 348. Wea'^er v. Halsey, 1 111. App. 558 ; 14
^ Koplitz V. Powell, 56 Wis. 671. Am. & Eng. Ency. Law 789.
* Hamilton v Lowe (lud.), 43 N. E. ** Railey v. Lanahan, 34 La. Ann. 426.
Rep. 873. 9 Leatherby v. Odell, 7 Fed. Rep. 642.
* Cases collected, 14 Amer. & Eng. ^° "Weaver «. Halsey, 1 111. App. 558; 14
Ency. Law 789 ; see Pape v. Lathrop Am. & Eng. Ency. Law 789.
(Ind. App.). 46 N. E. Rep. 154. ^' Lalande v. Aldrich (La.), 6 So. Rep,
« Leatherby v. Odell (N. C), 7 Fed. 28 [1889].
Rep. 642.
§ 804.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 725
place off his route to spend Sunday with his family, where it does not
seriously interfere with his compliance with his contract.*
When the employer claims that the employee's misconduct has caused a
diminution in his business, it may be shown that the decrease was caused
in whole or in part by rumors affecting the employer's character and con-
duct.' The refusal of a traveling salesman to obey the orders of his
employer requiring him to report by letter daily has been held sufficient
excuse for his discharge.' It seems a city salesman may properly refuse to
go into another state to sell goods, nothing having been said at the time of
his employment as to the place he should work.*
804. Gross Moral Misconduct, Pecuniary or Otherwise. — In any position
it is probable that a criminal act would be sufficient to warrant an employer
in getting rid of a servant, and without paying him his wages, too.* Thiev-
ing, stealing, or embezzling the master's property has frequently been held
a good cause for immediate dismissal," without notice, even though notice
was required by the contract of employment,^ and without paying him any
ivages; * but in the absence of deception, concealment of facts, or fraud, by
which the employee has induced the employer to hire him, it seems that
dishonest and fraudulent conduct with a former employer will not be a
ground for dismissal,' although the discovery that the employee is a
drunkard will warrant the master in repudiating a contract of employment
before the term of service has begun.*" Robbing a third party," fraudulent
conduct towards the employer," taking bribes from subordinates to obtain
favors/" or accepting gratuities for conniving at a breach of regulations
which he was to enforce; ** or unchaste and licentious conduct in a domes-
tic servant, or in connection with the duties of one's service in any
•capacity," each and all have been held sufficient cause for dismissal.
The question whether a servant was rightfully discharged must depend
upon the nature of the services which he was engaged to perform, and his
dismissal must be in some way connected with the duties of that service."
Drunkenness has been held a justifiable cause for discharge,'' if it is a
habit," but not unless the duties of the service are affected thereby." Tat-
1 Milligan v. Sligh Fur. Co. (Mich.), 70 " Libbart v. Woods, 1 Watts & S. 265;
N. W. Rep. 133. Trotman v. Dunu, 4 Camp. 211.
2 Vinson d. Kelly (Ga.), 25 S. E. Rep. ^^ ginger v. McCormick, 4 Watts & S.
630. 265-266; Horton v. McMurtry, 5 Hurst &
. 3 McCain v. Desnoyers, 2 Mo. App. Rep. N. 667.
896. la Engel v. Schooherr, 12 Daly (N. Y.)
* Berriraan v. Marvin, 59 111. App. 440. 417.
5 14 Amer. & Eng. Ency. Law 783. ^^ gogrg ^ Pearse, 10 C. B. 534.
« Brown v. Croft. 6 C. & P. 16, note; ^^ ^mxih'^'Kn.^iev and Servant 143, and
Llbhart ^. Wood, 1 Watts & S. 265. cases cited; Drayton v. Reid, 5 Daly (N.
' Smith's Master and Servant 143. Y.) 442.
8 Cunningham v. Foublanque, 6 C. & ^' 14 Amer. & Eng. Ency. Law 789.
P. 49. " Smith's Master and Servant 144.
' Andrews v. Garstin, 31 L. ,T. C P. 15. ' '» Cases in 14 Amer. & Eng. Ency. Law
10 Nolan v. Thompson, 11 Daly (N. Y.) 788
;814; Joimsjn ®. Gorman, 30 Ga. 612. ^^ 14 Amer.-& Eng. Ency. Law 788.
726 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 805.
tling or disclosing to others the employer's business and secrets/ or disclos-
ing the accounts of one company to another," or revealing professional
secrets of the employer/ or the act of advising or inducing co-employeea
or apprentices to quit the master's service/ or the act of plundering or
poaching on the premises on which a ^vorkman is at work/ is, each and any^
a good reason for the employer to discharge the employee.
Claiming to be a 'partner and thus denying that one is an employee/
or seeking to secure the patronage of the employer's clients or patrons to
himself/ or entering into negotiations for carrying on the same business as
the employer is engaged in/ will justify the employer in terminating the
employment forthwith. The same was held when the employee engaged
in a business or calling the tendency of which was to injure the employer's
business/ and when he dealt with certain merchants or tradesmen named
by his employer. "
The right to discharge an employee, if at any time the employer " feel
satisfied that the employee is incompetent," must be exercised in good
faith." His dissatisfaction must be genuine." If the employer admits th&
contract of employment, the burden is on him to show cause for discharge. '"^
An employee may have a right of action against a third person who
maliciously procures his discharge, though the employer violates no legal
duty in discharging him." Railway companies, combining for the purpose
of preventing employment by each other of discharged employees, are liable
to a discharged employee who is prevented by them from procuring em-
ployment." A "boycott" by the members of trades unions or assemblies is.
unlawful, and may be enjoined by a court of equity.''
805. Habitual Negligence,'^ or Conduct Calculated to Injure Master's^
Business/' — This heading opens the broad question of ''What is attention
to business ? " which cannot be answered generally, but must depend upon
the circumstances of each case. It has been held that the absetice of an.
overseer of a plantation for one day (presumably without good excuse), war-
* Beeston v. Caller, 2 C. & P. 607; Dray- *' Crawford v. Mail and Express Pub.
ton V. Reid, 5 Daly (N. Y.) 442; Greene. Co. (Sup.), 41 N. Y. Supp. 325; but see^
Brooks (Cal.), 22 Pac. Rep. 849; Fillieul Alexis S. Mfg. Co. v. Young, 59 111. App.
«. Armstrong, 7 A. «fe E. 557. 226.
2 The East Anglian Ry. Co. v. Lythgoe, i» Mulligan v. Sligh Fur. Co. (Mich). 70-
2 L. M. «fe P. 221; and see Davenport v. K W. Rep. 133 [1897] As to meaning of
Hulme (Super.), 32 N. Y. Supp. 803. "incompatibility" «nd "unsuitableness."
" Mercer v. Whall, 5 Q. B. 447. see Gray v. Sheppard (N. Y. App.), 41 N.
* Turner v Robinson, 5 B. & Ad. 789. E. Rep. 500.
» Read v. Dunsmore, 9 C. & P. 588. '* Daunerberg v. Ashley, 10 Ohio Cir.
* Amor V. Fearon, 9 A. & E. 548. Ct. Rep. 558.
' Mercer v. Whall, 5 Q. B. 447. ^^ Mattison v. Lake Shore & M. S. Ry.
8 Hobson V. Cowley, 27 L. J Exc. 205. Co. (Com. PI.), 2 Ohio N. P. 2761
» Many cases, 14 Amer. & Eng. Ency. ^* Oxley Stave Co. v. Coopers' Inter-
Law 789. national "Union of North America (C. C.)»
»» 14 Amer. & Eng. Ency. Law 790. 72 Fed. Rep. 695.
» Smith V. Rpbaon (N. Y. App.), 42 N. " Newman v. Reagan, 63 Ga. 755; Callo
E. Rep. 677. v. Brouncker, 4 C. & P. 518.
§ 806.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 727
ranted his discharge/ and surely the position of an engineer as superin-
tendent or chief inspector of large works would be regarded of equal im-
portance.' The absence of a teacher for two days after vacation, no injury
having been shown to result, will not justify his discharge.'
Illness for considerable time will release the employer from his con-
tract of employment.* The sickness of a timekeeper for fifteen days, to-
gether with the fact that he did not keep the employees' time correctly, is
sufficient cause for dismissal;' and imprisonment for two weeks was held
sufficient cause.' Under a contract of employment for a term of ten years
it was held that the employee might recover his wages for a period of six
months, during which he was too ill to attend to his duties, the company
not having rescinded the contract, but having allowed it to remain in force
and the employee to return to his work under it when he was sufficiently
recovered.'' The same was held of a doorkeeper to the finance department
of New York City, who was absent two years.* A public officer on a fixed
salary cannot be deprived thereof when his absence on account of sickness
has been permitted. Long continued sickness may be a cause for removal
from office, but until removed he is entitled to his salary.'
When a person is employed to perform certain duties it is presumed
that he will attend to them personally. If the servant delegates such duties
to another without notice to his employer it will justify his discharge.'"
Such contracts include those for the services of engineers, architects, law-
yers, physicians, playwrights, opera-singers, and even domestic servants.
The contracts cannot be transferred nor assigned, nor can the services be
delegated." If a servant becomes disabled from performing the duties of
his employment, the contract is thereby dissolved, and an agreement to
pay the servant his wages if he would resign his employment is without
consideration."
806. Incompetence or Incapacity. — As described in previous sections,*
an employee is responsible for any misrepresentations as to his capacity, ex-
perience, skill, or training ; and having made such representations, either
expressed or implied, he is responsible for any damages due to the want of
such skill and capacity. So, too, such misrepresentations may be a good
ground for dismissing an employee." If the employee be unskillful or in-
competent in the duties or work he has undertaken to perform, then he has
^ Ford 73. Danks, 16 La. Ann. 119; and « Devlin v. Mayor, 41 Hun (K Y.) 281.
tee Shaver «. Ingraham, 58 Mich. 649: and ^ O'Leary v. Bd. of Ed.. 93 N. Y. 541.
Drayton v. Reid, 5 Daly (N.Y.) 442; Shoe- "» Stanton v. Bell, 2 Hawks (N. C.) 145;
maker v Acker (Cal.), 48 Pac. Rep. 62. Wise v. Wilson, 1 C. & K. 662.
« See Wehrli «. Rehwoldt, 107 111. 60. " 14 Amer. & Eng. Ency. Law 787;
» Filleul V. Armstrong, 7 A. & E. 557. Smith's Master and Servant 152.
* 14 Amer. & Eng. Ency. Law 790. ^^ prior v. Flagler (Com. PI.), 34 N. Y..
» Miller v. Gidier, 36 La. Ann. 201. Supp. 152.
• Leopold V. Salkey, 89 Ills. 413. is Austee v. Ober, 26 Mo. App. 665.
' Cuckson V. Stones, 28 L. J. Q. B. 25.
* See Sees. 256-257, mjira.
728 EISQIKEERINQ A2sD ARCEITECTUBAL JURISPRUDENCE. [§ 807.
not fulfilled liis contract, and the employer will be justified in terminating
the contract/ Yet unskillfulness on the part of an employee does not pre-
vent him from recovering the real value of his services.'
The inability or incapacity of an engineer to conduct operations or carry
the work imposed upon him may not arise alone from his want of skill or
training, but from the quantity of the work or the burdens imposed upon
him. It was therefore held that when an engineer of a single bureau of the
department of public works of a great city had allowed himself to be
loaded with all the work of the department, and in the pei-formance of the
added duties he developed a want of skill or ability as an engineer or an
insufficient and slack control, it was sufficient ground for removing him
from office; that while he might lawfully have declined the added duties im-
posed by the action of the chief of the department, yet having assented and
assumed them, he could be held responsible for their proper performance.'
807. Condonation of Employee's Offense. — If an employee has been absent
from his duties or work, or if he has been guilty of some breach of his con-
tract,* or he has indulged in hasty words or exhibitions of temper, and the
employer has retained the employee with knowledge of the facts, he cannot
thereafter complain nor make that instance a ground for his subsequent
discharge.^ If the employee has been guilty of tortious or negligent acts, it
seems that may warrant a subsequent discharge." Eetention of service and
T)ayment of wages without protest, after knowledge of defective work done
by an employee, is jt?ri'/7?a/«cie evidence of a waiver of the right to dis-
charge him, or deduct from his wages on that account.' It seems that the
keeping of an employee whose skill and work was not equal to that con-
tracted for until the busy season was over, it being very difficult to secure a
competent substitute, is not of itself a condonation. What amounts to a con-
donation of a .servant's offence is a question for a jury.' The keeping of an
employee after his work has become unsatisfactory is not a condonation of
the acts causing dissatisfaction, when the contract provides that the employee
may be discharged whenever his work proves unsatisfactory." A person
cannot, by a decree of court, be compelled to retain another in his service.^*
808. What Is a Discharge. — What amounts to a discharge of an em-
ployee is not always clear. It has been held that a request or demand for
the employee's resignation amounts to a discharge. " A letter to a railroad
^ Leatherberry v. Odell, 7 Fed. Rep. ' Tickler v. Andrae Mfg. Co. (Wis.), 70
€41: Harmer v. Cornelius, 38 L. J. C. P. N. W. Rep. 292.
€5; Jenkins v. Betham, 15 C. B. 188. « McMuiray v. Boyd (Ark.), 2,5 S. W.
* Cases, 14 Amer. & Eng. Ency. Law Rep. 505; Leatherberry v. Odell (N. C), 7
781. Fed. Rep. 642.
3 People «. Campbell, 82 N. Y. 247 » Alexis St. Mfg. Co. v. Young, 59 111.
[1880]. App. 226.
M4 Amer. «& Eng. Ency. Law 778-791. '» Reid Ice Cream Co. v. Stephens, 63
^ Hamilton v. Love (Ind.), 43 N. E. Rep. 111. App. 334.
873 '^ Jones v. Graham, etc., Co., 51 Mich.
• Stoddard v. Ti-eadwell, 26 Cal. 294. 539.
§ 809.] ENGINEER'S AND AUGUITECT'S EMPLOYMENT. 729
superintendent informing him that another had been instructed to superin-
tend everything, and' adding, "I presume you will prefer to retire by means
of resignation. It is hereby understood that the same is accepted, and you.
will jDlease telegraph me of its" transmission. Please confer with M., the
V. P., in turning oxer the papers in the superintendent's office,'* was held to
operate as a positive and preemptory dismissal; and a letter of resignation
written in obedience or at the suggestion of the employer does not change
its character or construction or show that he voluntarily resigned, nor can
such a letter be construed as an acquiescence in his dismissal.^ The dismissal
or discharge must be in such terms that there is no doubt in the mind of
the employee as to the intention of the employer to terminate the service.
When a letter asking an employee "to turn over his desk and papers to
another employee," and information next day, when he offered to go to
work, that there was nothing for him to do; and a subsequent offer of other
and different work than was originally agreed upon; it was held a question
for the jury to decide whether the employee had been discharged.'
An employee, in answer to a letter of his employer discharging him, first
wrote that he accepted " j''our ultimatum," and subsequently wrote that he
did not thereby mean to release his employer from liability for salary due for
the unexpired term of his employment, but to merely concede the right of
his employer to discharge him; it was held that the letters were insufficient
to release the employer from an existing entire contract of employment.*
It seems that an editor performing such services as his employer directs
cannot complain because a part of the paper is taken from his control; * and
that a discharged employee who is idle may be recalled to do work which he
undertook under his contract of service, and without restoring him to his
former office or position.^ He need not return at reduced wages, and his
refusal to accept less pay than that agreed upon in the contract will not prej-
udice his right to recover, nor reduce the amount of his recovery.'
809. Duty of Discharged Employee to Seek Other Employment. — When
an employee has been discharged the law imposes upon him the duty of
making reasonable efforts to secure other employment; but extraordinary
diligence is not required.^ It is incumbent upon the employer to show that
the employee could have obtained other employment or that it was offered to
him; and then it is necessary for the employee to excuse himself for not
accepting, by some just and proper reason for refusing the offer. If he does
not, then the amount that he did earn or might have earned between his
discharge and the commencement of his suit will be deducted from the wages
or damages recovered."
J The Cumberland & Pa. R. R. Co. «. * Lathrop v. Visitor Ptg. Co. (R. I.), 30
«lack, 45 Md. 161 [1876]; and see Pinet v. Atl. Rep. 064.
Montague (Mich.), 61 N. W. Rep. 876. ^ 14 Amer. & Eng. Ency. Law 795-7.
2 Klaw v. Ehrich 31 N. Y. Supp. 773. ^ Rosenberger v. Pacific Coast Ry. Co.
" Martin v. New York Life Ins. Co. (N. (Cal.), 43 Pac. Rep. 963; 14 Anaer. & Eng.
y. App.), 42 N. E. Rep. 416. Ency. Law 795-7.
730 ENGINEERING AND AliCHlTECTUllAL JURISPRUDENCE. [§ 809.
A person who has been wrongfully discharged is bound only to seek like
employment to prevent damages being reduced by his remaining idle/ The
service offered must be of equal grade, and the fact that the pay is greater in
the service that offers itself makes no difference.' He need not visit other
communities in quest for work/ and if he does, it seems he is not entitled to
recover his expenses in seeking other employment, though his earnings in
such other employment are charged in reduction of his damage/ If he has
failed to secure work and devotes himself in the meantime to work of his
own, its value cannot be deducted from what is due him under his claim.* In
an action for damages for wrongful discharge, the employee need show only
readiness and willingness to render the services, and an honest effort to
obtain other employment, an actual offer to perform being unnecessary; ^ he
need not allege inability to earn anything during such time as he was idle.*
A servant wrongfully discharged has his option to sue at once for his
damages, or to wait till the expiration of his term of employment; and the
damages recoverable are the amount of his wages, at the contract price, to
the date of the trial, where that takes place before the expiration of the
term, less whatever sum it is shown that he has earned, or might i^easonably
have earned, since his discharge.' He is entitled to recover wages up to the
time of the trial of the action only, and not to the time the contract of em-
ployment would have expired," because the amount of wages agreed to be
paid for the unexpired term is prima facie the measure of damages.*
When a person who had contracted to do certain work for 11500 was dis-
charged before he had completed the work, and after he had been paid 1500,
a verdict for $2250, in an action by him for breach of contract, is excessive.^*
If the compensation of the employee was not agreed upon, he will be
entitled to a reasonable sum for the services performed." If the employment
be at a stated price for a longer term than is allowed by the statute of frauds,
and the employee is discharged without cause before the expiration of the
period of employment, he is not limited in his recovery to the price fixed by
the contract, but may recover what his services are really worth." *
J Fuchs V. Koerner (N. Y.), The Reptr. App.), 46 N. E. Rep. 154.
Feb. 1 [1888]; Amer. & Eug. Eacy. Law ' Hamilton v. Love (Ind. Sup.), 43 N. E.
Vol. 5. p. 35. and Vol. 14, pp. 795-7. Rep. 873; Efron v. Clayton (Tex.), 35 S.
2 14 Amer. & Eng. Eucy. Law 796; W. Rep. 424.
Briscoe v. Litt (Sup ). 43 N. Y. Supp. 908; » Zeiider v. Sellger-Toothill Co. (Sup.),
Chisholm v. Bankers liife Assur, Co. 39 N. Y. Supp. 346.
(Mich.), 70 N. W. Rep. 415 [1897]. » Hamilton v. Love (Ind. Sup.). 43 N E.
3 Tickler v. Andrae Mfg. Co. (Wis.). 70 Rep. 873; Babcock v. Anpleton Mf"- Co.
N. W. Rep. 293; 14 Amer. & Eug. Ency. (Wis.), 67 N. W Rep. 33: Wortliinirton ».
Law 796. Oak & H. P. Imp. Co. (Iowa), 69 K W.
4 Stone V. Vimont, 7 Mo. App. 377; Rep. 358.
Harrington D. Gies, 45 Mich. 374; 14 Amer. '"Missouri Iron Wks. v. Rivers Arch*
& Eng. Ency. Law 796. Co , 59 111. App. 545.
5 McMullan v. Dickinson Co. (Minn.), 65 " Howard v. Gobel, 63 111. App. 497.
N. W. Rep. 661. 12 Schanzenbach v. Brough, 58 111. App.
« Hamilton v. Love (Ind. Sup), 43 N. E. 536.
Rep. 873; and see Pape v. Lathrop (Ind.
* See Sec, 90, supra.
§ 811.] ENQINEEIiS AND ARCHITECT'S EMPLOYMENT. 731
If the employee sue for damages he can recover only such damages as he
has actually sustained by the discharge, and not the agreed price for full
performance/ One properly sues on his contract of employment for his
salary, rather than for damages for breach thereof, where he has not been
discharged, and has held himself in readiness, though he has rendered no
services, because no work has been offered him.'
810. No Recovery for Extra Work, Unless so Agreed. — When a person is
employed as an agent at a fixed rate and additional duties are imposed and
Ms powers enlarged without any stipulation that he is to receive additional
compensation, the agent or employee cannot recover extra wages for his
additional services.' It is a general rule that voluntary performance of
extra work by a servant does not entitle him to extra pay. If he gets extra
pay for his extra work it must be under an express agreement to that
effect.*
It has been so held when the statute law makes eight hours a day's
work. The fact that an employee works ten or twelve hours a day when
hired by the day does not entitle him to recover for the two hours extra
time each day, unless it was expressly so agreed in the contract of employ-
ment.^ A contractor who is to complete a building according to certain
specifications and a plan annexed, as explanatory thereof for a fixed amount,
cannot, in the absence of an express agreement, recover for extra services in
preparing the plan.*" *
811. Employment of Engineer or Architect in a Professional Capacity.^ —
A contract of employment of an engineer or architect or a so-called engage-
ment of his services does not differ from any other contract of employment
if the contract is expressed and its terms fully understood, but this is not
often the case. The whole transaction between the engineer or architect
and his employer frequently is embodied in a few words, or a mere verbal
instruction to . " make some sketches," or " I should like to see
your suggestions on paper," followed by similar directions to "go
ahead " with the plans or even with the building.^ Such contracts for ser-
vices are not unlike the engagement of a physician or an attorney, with
which all are familiar, and the duties that may be required under such an em-
ployment must depend largely upon i;he established and universal custom
* William Fair Co. ■». Kimebrough(Ky.), 28 S. W. Rep. 745, Superintendent of
34 S. W. Rep. 528. Buildings.
2 Stone V. Bancroft (Cal.), 44 Pac. Rep. * 14 Amer. & Eng.'Ency. Law 772; and
1069. see Forster v. Green (Midi.). 69 N.W. Rep.
As to Recovery for Services when term of 647; Voorhees v. Combs (N. J.), 4 Vr. 494.
service has not been completed, Remedies ' Averill v. United States, 14 Ct. of CI.
of Servants, and Breach or Abandonment 200; and see People v. Beck (N. Y. App.),
by Servant, see 14 Amer. & Eng. Ency. 39 N. E. Rep. 80.
Law 775, 779. * Maas «. Hernandez (La.), 19 So. Rep.
» Morean v. Dumaerene, 20 La. Ann. 230 269; but .<'ee Dull «. Bramhall, 43111. 364.
[1868]; Carrere -o. Dun, 18 Misc. Rep. 18 ' See Emden's Law of Building, chap.
[1896]; Chamberlain v. Kansas City (Mo.),
* See Sees. 559-567, 8v;pra, and 825, infra.
732 ENOINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 812.
and usage. Physicians are called upon or called in to advise in reference to
a patient's treatment, or an attorney with respect to a point of law, and the
law implies a contract on the part of the patient or client to pay what the
services are reasonably worth,' and a contract on the part of the physician
or lawyer to furnish a reasonable degree of skill and care in the administra-
tion of his duties and functions, such as is ordinarily possessed by members
of his profession; ■' and to furnish the attendance and services usual in the
practice of his profession.
The engagement of an engineer or architect would come under the same
rule or principle if his duties were undefined. They would depend upon the
practice of the profession as established by custom and good usage. The
duties of an engineer or architect are largely determined by the terms of
the contract for the erection of the structure and works, as well as by the
contract of employment. It is there that they are set out and defined with
great particularity, and when they have been so described either in the con-
tract of employment or in the contract for the work, it is not a question of
what proper skill and care he should exercise, but what amount of care and
• skill he has bound himself thereby to bestow upon the works." The duties
required are to be determined from the contract of employment and what is
required by the construction contract, and if these fail to define them, by
evidence of the general usage of engineer and architects. The intention of
the parties as evidenced by all these will control.*
812. What Constitutes an Employment of an Engineer or Architect? —
This is Often a Difficult Question.^ — When they are invited to submit plans
in competition with others for approval and adoption, or to contend for
prizes offered for the best plans to be determined by judges, or to make bids
according to plans furnished, subject to acceptance by a board or committee
of public works, and plans have been accepted provisionally or in part, or
special ingenious features been copied or pirated while under examination for
comparison, or by permission of the e:xaminers or board of control, then the
questions of employment and remuneration arise.
When an architect prepares plans upon the terms that he shall be
employed to carry them out if approved, it seems he has no claims for his
services if they are disapproved." When an architect prepared plans for a
jail building, which plans were accepted conditionally, provided that a bid
should be received from some reliable party for the building of the jail, and
viii; English; Roscoe's Digest of Building ^ Vigeant n. Scully, 20 Brad. 437: see
Cases (2d ed. ) 1-10, English; Lloyd's Law Gilmau v. Stevens, 54 How. Pr. (N. Y.)
of Building, chap, it ; Clark's Architect, 197.
etc.. Before the Law, chaps. 1 and ii; 29 « Kutts v. Pelby, 20 Pick. 65 [1838].
Amer. & Eng. Ency. Law 875-890. See « Moffat v. Dickson. 13 C. B. 534 [1853];
Kults V. Pelby, 20 Pick, (Mass.) 65; and Moffat v. Laurie 15 C. B 583; Leake's-
Driscoll V. School Dist., 61 Iowa 426. Digest of Contracts 640-641; Ada St. M. E.
1 Nourry v. Lord, 3 K Y. App. 392. Ch. v. Garnscy, 66 111. 132; Addison on
2 Utley ?). Burns, 70111. 162 [1873]; and Contracts 678; but see Walsh v. St. Louis
««e Marcotte ??., Beau pre, 15 Minn. 152. Exposition, 90 Mo. 459, 16 Mo. App. 503,
8 Vigeaut V. Scully, 20 Brad. 437 [1886]. affirmed.
{> 812.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 733
the board of supervisors refused to open any of the bids received, and
rejected plaintiff's plans on the ground that he had been guilty of improper
acts in getting his plans provisionally accepted, it was held that it was
within the discretion of the board to refuse to open or accept any of the
bids based upon plaintiff's plans and that, the condition upon which plain-
tiff was entitled to compensation never having happened, he could not
recover;^ but upon appeal it was held that the plans had been adopted
within the meaning of the act, and that the plaintiff could recover." The
word "received" as used was held not to include the acceptance of a bid.'
An invitation to architects to submit competitive designs of a building,
giving the location of the site and a general description of the building
which it proposes to erect, the designs to be passed upon by a board of
expert examiners, the author of the design accepted to be employed to com-
plete a full set of plans, gives no claim for services unless the plans are ac-
cepted;* and when it was further stipulated that no award need be mad©
by the examining board if they should deem none of the designs worthy, it
was held that it was in the discretion of the society whether the examiners
should examine the designs each separately for himself or together as a
board ; and, further, that the society might, after taking the opinions of the
examiners, ignore their action and erect such a building as it chose.'
"For plans and specifications submitted with their bids for work, the
engineers or architects get nothing for their plans and trouble if their bids
are not accepted;' and the same is true if his pay depends upon. the happen-
ing of an event that never comes to pass, such as " the forming of a club,"
or that the "plans are adopted," or that "we decide to build," ^ or "the
sale of land for building purposes," notwithstanding the contract contains a
provision that " in the event of the architect's services being dispensed with
at any time, he should be remunerated for the time, trouble, and expense
he had been put to in making the said preparations," he not having
offered to prove that his services had been dispensed with.^ If an architect
voluntarily draws plans with the hope or expectation of being employed as
architect and superintendent, he cannot recover if not employed. There
must be a contract of employment either expressed or implied."
When a committee had been authorized by a resolution of a board of
* Hall V. County of Los Angeles (Cal.), inal cost of advertising.
13 Pac. Rep. 854. * Woods' Master and Servant (2d ed.)
2 Hall V. Los Angeles. 74 Cal. 502 [1888]. 103.
' Hall t). Los Angeles, supra. "• Roraeyn v. Sickles, 108 N. Y. 650
* Moffat V. Dickson, 23 L. J. C. P. 265 [1888].
[1853J. 8 Moffatt v. Laurie, 15 C. B. 582 [1855.]
^ Donaldson «. Detroit Museum of Art ® Allen ®. Bowman, 7 Mo. App. 29; Nel-
(Micb.) 40 N. W. Rep. 33 [1888]. A just son v. Spooner, 2 F. & F. 613; Moffatt v,
rule, perhaps, in l;iw, but it affords no Dickson, 13 C. B. 543; Smithineyer v.
protection to the architectural profession, United States, 147 U. S. 342; Tilley v.
from whom a society could secure many Cook Co., 103 U. S. 155; and see Chicago
designs and practical hints and beautiful v. Tilley, 103 U. S, 146; Duutou v. Cham-
features for a structure for the mere nom- berlaiu, 1 Bradw. 361.
734 ENGINEERING AND ARGHITECTUBAL JURISPRUDENCE. [§ 812.
directors of a school district to procure plans for a school-house and present
the same at the next regular meeting, and the committee called on an
architect and said, " We have come to select plans for a school-house,^' and
they selected one and gave directions to make some changes, asked the
architect to meet the board, and expressed themselves suited, and that they
did not care to look further; it was decided that clearly the architect was
employed to prepare plans, and that his amount of recovery should be de-
termined by the jury, that the fact that the plans were returned to the
architect and not used did not alter the case; and that though it was fur-
ther claimed that there existed a universal custom among architects to pre-
pare and furnish plans for buildings and take their chances of the same
being approved or adopted before they were entitled to compensation, yet
the custom not being proved, the architect was allowed to recover/ "Where
plans have been submitted, by direction of a landowner, by an architect,
who afterwards took them away, the taking of the plans was held not to
be of itself an admission that the services were wholly voluntary and with-
out any idea of compensation.' When an architect at the request of a pro-
prietor prepared plans for a theater, drew a sketch of a front which was
presented to and kept by the proprietor for a week, who, being pleased
with it, directed the architect to make the plans, and the proprietor directs
his master-builder to call on the architect and make an estimate of its cost,
which he did, keeping the plans for a week, and afterwards the proprietor
having decided not to build refused to pay for the plans, it was held that
there had been a proper delivery of the plans and that the architect was
entitled to compensation for his services.'
If one of the several plans drawn for a church building be accepted on
condition that the building could be built for a certain sum, and it is
ascertained that it cannot be built for such sum and the plans are rejected,
there is a failure to show any promise to pay for the plans, and the archi-
tect is not entitled to recover for making the plans.* A propositon to cer-
tain architects which has been made for plans and specifications of a certain
proposed building under the terms of which each architect shall receive a
definite sum, irrespective of merit, and this further clause, "That the
architect who is successful shall not receive the compensation named, but
he shall be engaged as architect and superintendent and shall be paid, etc.;'*
the architect whose plans were accepted as the most meritorious of all has a
right of action for refusal to employ him as architect and superintendent.*
If one proposes to erect a building and employes an architect by con-
tract in writing to draw up plans and specifications, superintend the work
» DriscoU V. The Ind. School Dist., 64 Spooner, 2 F. & F. 613.
Iowa 426 [1883]. * ^^^ g^. m. E. Ch. v. Garnsey, 66 111.
2 Noiirry v. Lord, 2 Keyes 617 [1866]. 132 [1872]; Marsh v. Astoria, etc., 27 Ills.
2 Kutts V. Pelby, 20 Pick 65 [1838]; and 421.
Bee Sbipman v. State, 42 Wis. 377, Mar- ^ Walsh v. St. Louis Ex. & Mus. Hall
cotte V. Beaupre, 15 Minn. 152; Nelson c. Assn., 90 Mo. 459 [1886].
§813] ENGINEER' 8 AND ARCHITECT'S EMPLOYMENT. 735
and audit claims, he cannot show by parol evidence that the building was
not to be erected, and the architect not to be paid unless a loan could be
procured for that purpose. The fact that ho was to be paid in install-
ments, one when the drawings were made and the balance at specified
stages of the work, it not appearing that the first payment was intended as
the price of the drawings did not make the contract divisible, and though
the employer failed to build, the contract price was held to be entire, and
the value of the archtect's services constituted the measure of damages/
When, however, the contract was to pay two and one-half per cent, of the
estimated cost for the preparation of the plans, and the payment of three
per cent, and five per cent, were contingent engagements to be performed
after the plans were prepared, the contract was held divisible, and the
architect having been discharged after the prepartion of the plans, he was
allowed to recover the two and one-half per cent, only.'
Under a contract to furnish the necessary drawings, specifications, and
details for a certain percentage on the total cost of the structure, the archi-
tect, after furnishing the drawings, etc., is not limited, in case his employ-
ment is terminated before the building is completed, to a recovery of the
percentage on the cost of the building in so far as it was at the time com-
pleted.'
813. What Is a Performance of a Contract of Service? — An architect
was held to have complied with his contract to furnish plans and specifica-
tions for a building to cost $10,000 when he had furnished plans, etc., for
;a building that would cost $16,000, at the same time making proposals
to reduce the cost in certain respects, making the plans to apply to a build-
ing that would not cost more than $10,000.' Plans and estimates of a
building to cost $102,000, exclusive of architect's and superintendent's fees,
ihe latter of which would have been five per cent, if the architect had the
-superintendence, was held to be a suJBficient compliance with a contract to
prepare plans and estimates of a building to cost about $100,000, and the
opinion was further expressed that plans for a building to cost $100,000,
-would not satisfy a contract for a building to cost not more than $75,000,
nor does it necessarily follow that it would be satisfied by plans for a build-
ing to cost any sum between $75,000 and $100,000.*
When a contract for the preparation of plans and specifications stipu-
lated that the architect should have said plans and specifications drawn in
ra good and sufiicient manner, to be altered and changed in such manner as
the board of commissioners might, at any time, deem proper and best, and
that the said architect should make, alter, and change the same plans until
^ Marquis v. Lauretson (la.), 40 K W. 962; and see ^coi\: v. Maier, 56 Mich. 514;
Hep. 73 [1888J, Chicago v. Tilley, 13 Otto 146; Lambert
' Ebdy V. McGowan, Roscoe*s Digest io. San ford, 55 Conn. 437.
Bldg Cases 134; and see Clark's Architect, ^ Smith v. Dickey, 74 Tex. 61 [1889]; sea
>etc , before the Law, chap, viii Nelson v. Spooner, 2 F. & F. 613.
• Havens v. Donahue (Cal.), 43Pac. Rep.
736 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 814..
the said board of commissioners should be satisfied, it was held the request
to make changes should come from the board acting officially and not from
individual members acting in their private capacity.' *
When a premium has been offered for plans, which have been adopted
and the promised compensation been paid to the architect, it was held he
icould collect no more, notwithstanding a usage among architects to super-
intend the building of their designs at five per cent.; that when there is no
contract expressed or implied, usage or custon cannot make one.' A reso-
lution passed by a board of public works, which has supervision of the
superintendent of buildings, to the effect that C, superintendent of build-
ings, shall be architect of the City Hall, and shall have supervision of the-
construction thereof, was held not to constitute a contract of employment
of 0, as supervising architect, authorizing a recovery by him for his ser-
vices as such in addition to his salary.' In a case where an architect had
been regularly employed to make plans and designs for a building, evidence
was received to prove a custom that the employment carried with it an en-
gagement to superintend its construction.*
814. Eecovery for Services Rendered. — The obligation of paying for tho
drawings of an architect usually rests upon the employer, and not upon the
mechanic who executes the work. If an owner has requested an architect
to furnish a design, and paid him for it, but did not employ him to prepare
drawings and would not pay him for them, it was held that the fact that the
owner was not liable was not sufficient to charge the builder. The builder
not having made any prior request for plans, nor any subsequent promise ta
pay for them, could not be charged with the obligation of paying for them.*
The same question of responsibility arises in the employment of engineers
when called upon to stake- out work. In engineering work, generally, the
obligation to pay rests upon the person who requested the work to be done,*
unless it is work that properly belongs to the engineer by his contract with
company or by the contract between his company and the contractor.
Where an architect performs work and labor upon a building on the joint
employment of two persons, an action will be against them jointly, although
no partnership exists between them in either the land or building. Such
joint employment may be inferred from circumstances, as when both the-
defendants have given directions as to the work, its character, and mode of
execution; and when one denies his liability, his promises to pay certain
bills relating to the construction of the building, the indorsements by him of
notes therefor, his ownership of the land and ultimately of the building, and
' Board of Com'rs. v. Bunting (Ind.), 12 S. W. 745; and see Walsh v. St. Louis-
N. E. Rep. 151 [18871. Exposition, 101 Mo. 534.
2 Tilley v. Co. of Cook, 103 U. S. 955 * Wilson v, Bauman, 80 111. 493 [1875].
[1880]. Compare First Unit. Soc.i). Faulk- ^ ^ebb v. School, 3 Phila. (Pa.) 125-
ner. 91 U. S. 415. [1858].
•Chamberlain v. Kansas City (Mo.), 28
* See Sees. 39 and 555, supra.
§ 814.] ENOINEER'8 AND ARCHITECT'S EMPLOYMENT. 737
his uniting in the examination of accounts of the architects and in settling
the balance due, are sufficient evidence to support the judgment.'
A custom to charge a percentage of the architect's own estimate of the
cost, it seems, cannot be resorted to to determine an architect's compensation
for preparing preliminary sketches not accepted. Such a custom was held
unreasonable and preposterous.' Such services, unless volunteered, should
be paid for, if at all, according to the time spent upon them, or according
to such understanding as could be fairly implied from circumstances," and
not according to the schedule of charges of the American Institute of Archi-
tects, especially when the architect has accepted a salary."
If the compensation is agreed upon as a percentage of the estimated cost
of the buildings, the architect may recover on the reasonable cost, according
to his plans and specifications, and bids made by third persons may be used
to show what is a reasonably cost.' The architect is a competent witness in
his own behalf upon the question of the value of his labor in drawing plans,*
as are other architects. *
The employment of engineers is often equally perplexing. Frequently
they are called upon to render advice or services by officers of corporation,
whose authority is questionable, and if the advice or services turns out to be
unnecessary, unprofitable, or expensive, the company sometimes seek to
avoid paying for it. A letter from a secretary of a provisional committee
organized for the purpose of projecting a railway and signed by him, to an
engineer conveying a record of minutes of a meeting of the committee, that
it was resolved that R. (the engineer) be requested to accept the office of
" joint engineer to the line," was held to be inadmissible as evidence of the
engineer's employment, as were the minutes themselves, not being signed by
the chairman, and no proof being offered that there was a meeting on that
day, or who was present.'
If an engineer is called and consulted with regard to works, and his plans
and estimates have been adopted by the board of directors of a company, his
employment may be said to have been proved, without any formal contract.
The fact that he was recommended to the company, and its officers set him
' Beach v. Raymond, 2 E. D. S. (N. Y.) 342 ; hut see Gilman «. Stevens, 54 How.
496 [1854]. Pr. (N. Y.) 197.
•Tilly t). Cook, 13 Otto 155; Lloyd's Law 'Lambert v. Sanford, 55 Conn. 437"
of Building, etc., 11, citing Eddy «. Mc- [1887]; and see 'Roeder v. Bensberg, 6 Mo
Gowan, not reported; but see Knight v. App. 445; Siiipman v. State. 43 Wis. 381
Norris, 13 Minn. 473; Irving v. Morrison, Irving v. Morrison, 27 U. C. C. P. 242
37 C. P. (Upper Canada) 242 ; and Mulli- Maack v. Schneider, 51 Mo. App. 92
gau V Mulligan, 18 La. Ann. 20, contra. Agreements are sometimes made forbid
2 Scott V. Maier, 56 Mich. 554 [1885]; ding or preventing any extra charges
sembie, Marcotte v. Beaupre, 15 Minn. 152; Baltimore Cem. Co. v. Coburu, 7 Md. 202;
Dull V. Bnimhall, 49 111. 364, what is rea- Abbott v. Gatch, 13 Md. 314.
sonable; Lloyd's Law of Building (2d « Nourry ©. Lord, 2 Keyes R. 617 [18661.
ed.), § 8. ' Rennie v. Wynn, 4 Exch. 691 [1849].
* Smithmeyer v. United States, 147 U. S.
* See Sec. SUl, infra.
738 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 814.
at work, if the company had the benefit of his services knowingly, they are
liable to him for their value.'
So it has been held that an engineer is entitled to recover for services and
:advances rendered, with the knowledge and consent of the company's engi-
neer and attorney, and which were essential in preparing to construct a rail-
road, and for drawings procured and paid for by him, and approved by the
company's president.''
When an engineer was assured by a company's engineer that he would be
made a subcontractor and subrogated to the rights of the contractor, and he
received a notice of the approval of this arrangement by the board of direc-
tors, through the attorney of the company, it was held he was entitled to
Tecover for his services and expenditures on the company's refusal to award
him the contract. The fact that the engineer and attorney were not duly
appointed by the company, until the meeting when the directors approved
of the arrangement of subrogation, did not alter the case, for the engineer
and attorney represented and acted with the authority of the company.''
Under a charge for services, an engineer may prove and recover for ser-
Tices whether performed by himself or an assistant, or by both, unless it appears
l)y the nature of the terms of the employment that the personal services of
that particular engineer were contracted for and no other person could under
the agreement fill his place ; he may under an allegation of services performed
'by him prove that they were performed by another person under him.*
The employment of an engineer to survey and establish a railroad line
•clothes him with authority to employ subordinates and assistants for the
purpose on behalf of the railroad company, and such assistants are the ser-
Tants of the company.*
» Moline W. P. & Mfg. Co. v. Nichols, » Leet v. WHsod, 24 Cal. 398 [1864].
26 III. 90 [18611. *Gillis v. Duluth. etc., R. Co. (Minn.),
2 Wilson V. Kinsfs Co. El. R. Co., 21 N. 25 N. W. Rep. 603 ; New Orleans, etc.,
E. Rep. 1015 [1889]. R. Co. v. Reese, 61 Miss. 581.
CHAPTER XXIX.
PROPERTY OP ENGINEERS OR ARCHITECTS IN DESIGNS AND
INVENTIONS.
OWNERSHIP OF PLANS, SPECIFICATIONS, AND DRAWINGS. CORPOREAL
AND INCORPOREAL PROPERTY RIGHTS.
815. Ownership of Plans, Drawings, and Designs.* — It is customary for
engineers and architects to retain the ownership of their plans by a special
agreement with their employers to that effect. In the absence of such am
agreement or understanding, it has been held that the employer is entitled
to keep them when he has paid the architect a reasonable remuneration for
his services. A custom to the contrary was adjudged " unreasonable, im-
possible, and suicidal.^' In this case the architect's services had been dis-
pensed with before the building was completed, and the judge compared it
to an attorney refusing to deliver up the papers of his case to his client
because his employment was determined/ The French courts have also
given the owner the right to the plans when he had paid for them, or had
recompensed the architect or engineer.''
Whether the same rule would be held as to the ownership of plans after
the building was completed is doubtful; and it is equally dubious that a
client can demand the papers and documents prepared by an attorney in
conducting his case after the trial is concluded. It is certain that it is the
universal practice of architects to take or retain their plans, both in Eng-
land and the United States, when the structure has been completed.
Alabama affords a case whore an architect who took the plans and speci-
fications away from an unfinished building was prosecuted by the builder
for larceny [stealing]. It was held by the Supreme Court that the builder
was entitled to the use and possession of the plans during the construction
of the building and that he might have a special property in them, the in-
vasion of which would be a trespass, even though under the contract th&
ownership of the plans was in the architect. To constitute larceny the
wi-ongful taking must have been secret or fraudulent, and done with felonious
intent to convert the property to the taker's own use and to deprive the
' Ebdy V. McGowan, Ct. of Exch., Nov. Architect, etc., Before the Law 129.
17,1870. The Times; s. c, Roscoe's Digest ' Dalloz 1871, 3, 83; 1849, 3, 171.
of Building Cases 134 ; and see Clark's
* See Sees. 349, 353, supra.
789
740 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 816.
0
owner of his property. If taken openly in the presence of the owner, or
in the presence of other persons known to him, the taking and carrying
away would be a mere civil tort. Here the architect committed a trespass
when he took the plans away from the builder without his consent, after an
unconditional delivery of them to him.^
This case further held that the architect might show the existence of a
universal custom among architects and builders to tlie effect that the plans
and specifications belonged to the architect by whom they were made."^
When plans are submitted in competition for a cash prize, it has been held
;that those plans which were awarded the prize became the property of the
party inviting the competition "upon tendering the amount of the prize
offered.' "When competitive plans are sent by a common carrier to the
parties inviting competition and their delivery is delayed until after the
time specified, owing to the negligence of the carrier's employees, the
•damages to be assessed is the value of the architect's chances in getting the
prizes, and not the value of the time and labor expended in making said
plans and specifications. To recover anything more than nominal damages
the architect should show that there was some probability of his plans being
itdopted." A later Massachusetts case held that when plans, delivered to an
"express company, had been lost in transit, the damages were the value
of the plans to the person to whom they were sent, not their immediate-
value, as that would include damages for the delay in building the structure^
•which could not be given. The fact that the plans had a special value to
the architect which could not be purchased, and that he had other contracts
and had undertaken other work in expectation of having these plans for im-
mediate use, cannot be considered. The measure of damages was held to be
the reasonable cost of new plans and any other expenses reasonably incurred
in procuring new ones.'
816. Incorporeal Property in Architectural and Engineering Designs. —
Copyright and Patent-right. — However doubtful the ownership of the
plans themselves may be — ^. e., the corporeal embody ment of the design, or
the paper or cloth which bears or conveys the conceptive ideas and designs
of the engineer or architect — it cannot be doubted that any use of his plans
without his permission, such as copying them or reproducing them, or even
l)uilding from them, would be a tort to the architect's natural property in
liis own creations, as much as the copying of an artist's painting or the
modeling of a sculptor's work of art. The one is the creation of an
^ Lumsford v. Dietrich, 86 Ala. 250 360; but see Watson j). Ambergate, 15 Jur.
11888] ; see also Marcotte v. Beaupre, 15 448.
Minn. 152. 'Mather v. American Exp. Co., 138
2 Lumsford v. Dietrich, 86 Ala. 250 Mass. 55 [1884], citing Hadley v. Baxen-
[1888]; but see Tilley v. Cook Co., 103 U. dale, 9 Ex. 341; Green «. Boston & L. R.
i3. 162. Co., 128 Mass. 221 ; and see Clark's Ar-
» Walsh V. St. Louis Exp'n, 101 Mo. 534. chitect, etc., Before the Law, 26.
^ Adams Exp. Co. t>. Egbert, 36 Pa. St.
§816.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 741
engineer's or architect's cultivated taste and training, the other perhaps of
^n artist's perception, taste, and genius.*
Both are works of art, and one should be protected as much as the
■other. Surely not because the one is the more vulgar, for tlie law protects
from publication or reproduction the most insignificant sketch, picture-
card, and every manuscript book or personal letter written. An architect's
plans are his own creation, and one can have no better rights or claims to
a property in a thing than that which owes its existence to his own creative
genius.
This property, however, is vested by law in him only so long as he re-
tains possession and control over his incorporeal creation. If the artist
sell his picture or the author his book, or either makes a profitable use of
it, such a use as it was designed for or intended, he may lose that inherent
^nd exclusive right to his own creation, and it becomes the common property
of a jealous and selfish public' An author may give away a copy of his
manuscript,' he may send it as a communication to another, as in the case
■of a letter to a friend,* he may permit a copy to be made,^ he may lecture
from it in public or in the class-room," he may have it printed and distrib-
ute copies among his friends or an association, if it be expressly understood
and agreed that their use shall be restricted and that they are not to be
sold, and that the act of distribution is not a publication/ A consignment
of a lot of books to a bookseller, with orders not to sell until a certain date,
is not a publication until sold, after that date.* Nor is the delivery of
copies of a report to the state, without any distribution thereof, a publica-
tion.' The sale of a book \^ prima facie a publication."
The artist may exhibit his picture in a public salon " without losing his
exclusive right to multiply copies, publish it, or his exclusive right to a
oopyright. If he publishes work or sells copies of it without first securing
a copyright from the government, his sole right to an exclusive enjoyment
of the fruits of his labors is gone. He should first secure the protectiou
of the government in whose territory he expects to sell it.*'
The same holds with regard to all intellectual productions which have
* N. E. Monumental Co. v. Johnson peal, 107 Pa. St. 231 [1884] ; Abernethy
<Pa.), 22 Atl. Rep. 974. ®. Hutchinson, 1 H. & T. 28; Nichols i).
' Accord, Holmes «. Donohue (C. C), 77 Pitman, L. li. 26 Ch. D. 374.
Fed. Rep. 179. ' Jewelers' Merc. Agcy. t>. Jewelers*
3 Queeusbury v. Shebbare, 2 Eden 329; Wkly. Pub. Co., 32 N. Y. Supp. 41; &w«
Blunt V. Patten, 2 Paine (U. S.) 393, a seeBSgney v. Dutton (C. C), 77 Fed. Rep.
map. 176.
4 Pope V. Curie, 2 Atk. 342 ; ThoApson « Wall v. Gordon, 12 Abb. Pr. N. S. (N.
^. Stanhope, Ambler 737; American cases Y.) 349.
cited, 4 Amer. & Eng. Ency. Law 151, ® Mi'ers v. Callahan, 5 Fed. Rep. 726.
noU. >o Baker v. Taylor. 2 Blatchf. (U. S.)
^ Forrester t>. Waller, 2 Eden 328; Bart- 82; Ritrney v. Dutton, sujyi-a.
lett V. Crittenden, 5 McLean (U. S ) 32. " Werckmeister -». Springer L. Co. (C»
« Caird «. Sime (Eng.), 12 App. Cas. 326, C). 63 Fed. Rep. 808.
3 Ry. & Corp. L. J. 343 [1887]; Miller Ap- ^^ Rigney v, DuttOD, mpra.
742 ENGINEEBINQ AND AJRCHITECTUBAL JURISPRUDENCE. [§ 816.
been made the subject of statutory copyrights, including maps, charts,*^
musical compositions, engravings, photographs,' paintings, works of sculp-
ture, etc.; in short, all productions of literature, the drama,' music, and
art, and even the letters a man has written, are within the protection of th&
law, whether of literature, art, or science, if such work is unpublished, and
kept for his private use or pleasure. That his rights are absolute cannot
be disputed.* Nobody has a right to publish them, to multiply copies of
them, without permission of the author or artist who first wrote, painted^
draughted, modeled, or made them; in short, created them.' The passage
by Congress of the copyright statutes has not abrogated the common-law
right of an author to his unpublished manuscript.*
What will constitute a publication of a piece of statuary, a monumental
design, a triumphal arch, or an artistic structure, as an art building, or even
an apartment house, has not been decided. It has been said that any profit-
able use for which the work was intended would amount to a publication,
and the opinion has been judicially expressed that pieces of statuary which
decorated public squares and other like places are published by being so
publicly exhibited.' A gateway, a monument, or an architectural edifice
would be subject to the same line of reasoning.
It had also been intimated that the public exhibition of a picture would,
be a publication, but a recent case has decided that the exhibition of a paint-
ing in a public salon, or the printing in the salon catalogue of a crayon sketch,
of the same painting, did not amount to such a publication of it as to work
a forfeiture of the right to a copyright, unless the general public was per-
mitted to take copies of it.® In any case, it is a question of intention of the
author whether or not he has parted with his original rights in the crea-
tion."
Whether a copyright would be granted upon an architectural or engi-
neering structure as a work of art has never, it is believed, been decided;
but so far as principle is concerned, it is difficult to understand why it
should not be given protection as well as a painting or a piece of statuary.
Indeed, in some cases it would be difficult to draw the line between the sub-
ject of art entitled to protection and the edifice which would not be pro-
tected. That section of the English copyright act which gives protection
. to statuary mentions only the human body and its parts and dress, and the
figures of animals, which would not include ordinary decorations of wood
and stone as applied to architectural structures.
» Rees V. Pettizer, 75 111. 475. Fed. Rep. 196.
2 Falkt). Donaldson (C. C), 57 Fed. Rep. ' Xurner v. Robinson, 10 Irish Ch. 51ft
32. [I860]; Copinger's Law of Copyright 382,
3 Aronson v. Baker (N. J.), 12 All. Rep. 383.
177 [1888]. ^ Werckmeister v. Springer Lithograph
4 Drones Law of Copyright 174; Press Co. (C. C), 63 Fed. Rep. 808; but see
Pub. Co. V. Monroe (C. C. A.). 73 Fed. contra, Pierce & B. Mfg. Co v. Weick-
Rep. 196. meister (C. C. A.), 72 Fed. Rep. 54.
^Amer. & Eng. Ency, Law 148-150. ^Prof. Langdell in his lectures at Har-
• Press Pub. Co. v. Monroe (C. C. A.), 73 vard; semhle, Pope v. Curie, 8 Atk. 34«.
§ 81S.J ENOINEER'8 AND ARCEITECT8 EMPLOYMENT. 743
817. Rights of a Purchaser to Incorporeal Creations. — If one pur-
chases the copyright of a picture with the picture, he holds the picture free
from any interference, and with the perfect right to deal with it as he
pleases. If, however, he buys the picture simply as a picture, or the author
or artist has reserved the right of reproduction, the purchaser will then
have the gratification and delight derived from its contemplation, but he
cannot make copies or engravings from it, or use it for a different purpose
from that for which the artist sold it; ^ the purchaser, in such a case, is not
a proprietor within the meaning of the copyright law. The author or artist
retains his right to a copyright.
An architect or engineer should have the same property in his own crea-
tions, whether they be the drawings themselves, an artistic design of a
column, or a structure such as a building, an arch, or even a bridge. In
America it has been held that a draughtsman or designer has such property
in a model or plan of his own composition as to be entitled to maintain an
action for the unauthorized use of such, although no letters patent or copy-
right had been secured.'
818. Copyright of Plans and Drawings. — Whether the plans or draw-
ings of a building may be copyrighted does not seem to be perfectly well
settled. In point of justice and sound public policy, no good reason exists
why an architect's plans should not be protected by copyright. Copinger,
in his work on Law of Copyright, is authority for the statement that in the
English act the word drawing includes architectural design.^ Drone, in his
work on Copyright Law, passes the subject by with the simple statement
that plans are not mentioned in the American statutes, while maps and
charts are included.* The word chart has been held not to include sheets
of paper exhibiting tabulated or methodically arranged information. The
courts distinguished' between charts that convey information of a literary
nature and those that impart knowledge of geography or art. These sheets
could doubtless have been copyrighted as a book. A dressmaker's chart, or
diagram for cutting ladies' garments, has been held to be a book,' and art
designs are a subject of copyright.'' The -superior likeness of a dressmaker's
chart to a book, when compared with a collection of plates or plans of an
architectural or engineering structure (suppose them sun-printed, to escape
the question of reproducing copies), will not be apparent to most people,
and if the former is a subject of copyright as a book, certainly the latter
should be equally so. Books of designs, simple reprints of architectural
plans, with very little text or explanations accompanying them, have been
copyrighted, and are in the possession of almost every architect and engi-
^ Werokmeister v. Springer Lithograph ' Copinger's Law of Copyright (2d cd.)
Co., 63 Fed. Rep. 808; Copinger's Law of 389.
Copyright 388. * Drone on Law of Copyright 174.
2 N. E. Monument Co. v, Johnson (Pa.), ^ Taylor v. Gilman, 24 Fed. Rep. 632.
22 All. Rep. 974; semhle, Blunt v. Pat- « Deury ®. Ewing, 1 Bond (U. S.)40.
ten, 2 Paines (C, C. Rep.) 397. ' Grace v. Newman, L. R. 19 Eq. 623.
744 ENOINEEEINQ AND ARCHITECTUBAL JURISPRUDENCE. [§ 819.
Tieer. If ordinary plans are refused, where shall the line be drawn ? Will
the amount of text accompanying the drawing be the test, or the character
of the book, or its form, the covers, the title page, or the binding ? Will
the method of reproduction, whether from a printing-press or a blue-print
frame, enter into the case ?. An unprinted book, which existed only in the
manuscript, has been held the subject of copyright.' Finally, will it matter
if the book consist of one sheet or several ? It has been held not, for a book
may be on one sheet."
There is no just reason why an architect or engineer should not be pro-
tected by copyright as well as an artist. His property rights are certainly
as well defined, and in view of other things copyrighted, it is difficult to see
how it could be denied. The selfishness of the public and the fact that the
progress and growth of our country may demand that the industrial and
practical be not made exclusive, might be a remote reason why it should nob
be given the same protection; but this argument would apply as well to
maps and charts, and to patentable inventions.
Under the United States copyright act of 1831, a photograph was not a
subject of copyright,' but a later statute grants copyright protection to
photographs and to the negatives thereof, and such an act has been held
not unconstitutional.*
A photographer has no right to make copies of a customer's photograph
"without his permission,' and it may be doubted if he can copyright it. A
private individual may enjoin the publication of his portrait when a public
character cannot, unless the photograph has been secured by some violation
of confidence or breach of agreement. A person who is one of the foremost
inventors of his time has been held a public character.' The power of the
World's Columbian Exposition to grant an exclusive privilege to make
stereopticon views of objects within the exposition, and to sell such views,
has been held a matter of grave doubt.'
819. Rights of an Author, Inventor, or Designer when in the Employ
of Another. — In sympathy with and close connection to this subject of the
ownership of designs and artistic features created by an architect or engi-
neer are his rights to plans, improvements, and inventions made by him
while an employee. If in his contract of employment it is agreed or under-
stood or may be reasonably implied that the production of his every effort,
mental as well as physical, should be the property of his employer, that his de-
signs, improvements, and inventions, and all other incorporeal creations
should belong to his employer, then there can be no question but that the em-
^ Roberts r. Myers, 23 Law Rep. 396 ; Fed. Rep. 693; see cases of copyrighted
6w< see Jewelers' Merc. Agcy. «. Jewelers' photograph cited in Springer Lith. Co. v.
W. Pub. Co., 32 N. Y. Supp. 41. Falk (C. C. A.), 59 Fed. Rep. 707.
* Drone on Copyright 142. ^ Corliss v. E. W." Walker Co. (C. C), 64
3 Wood t). Abbott, 5 BLitchf. (U. 8.) 325. Fod Rep. 280.
* Sarony «. Burrow Giles Lith. Co., 17 « Kilburn v. Ingersol (C. C), 67 Fed.
Fed. Rep. 591; Schreiber v. Thornton, 17 Rep. 46.
§819.] ENOINEEB'S AND ARCHITECT'S EMPLOYMENT. 746
ployer could rightfully claim them; but if no such agreement has been made
or can be implied, then the employee is entitled to the uses and benefits of
his creations.' Such an agreement has been held not against public policy.'
Architects are usually employed for their ability to design and create
features of utility and decoration, and it is submitted that their contract of
employment would generally include the right to the use, at least, of any
features of design, decoration, or arrangement that they might create; but it
would not include any new method of construction, or a new material, or a
new process for the manufacture of it.
. It has been held that if a company employ a chemist to work with its mate-
rials as a chemical expert, in order to develop new products and processes for
its benefit, it acquires no right to the chemist^s discoveries made during such
employment, but only a license to use them;' but if an employee invents
flavoring compounds with materials supplied by the firm, and it is the inten-
tion of all the parties that the processes by which the compounds are pre-
pared shall belong to the firm, and be trade secrets, the firm becomes the
owner of the processes, though no assignment thereof is made by the inventor
to the firm.* If the employee has entered the receipts and processes in a
book of his own he is entitled to keep it, though it seems the employer is
entitled to a copy. A color-mixer in a carpet manufactory, without the
knowledge of his employers, who has entered the receipts in his own instead
of his employers' color-books, and, on the employee's discharge, his employ-
ers, believing the books their own, refused to let the employee take them
away, it was' held that the jury should be instructed, in an action by the em-
ployee for the detention, that the value of the receipts could not be consid-
ered in estimating the damages, and that, in considering violence in the
detention as an element of damages, they must consider the negligent con-
duct of the employee, and that his employers were led thereby to believe
that he was carrying away their own books.' The employer has a right to the
continued use, in his own business, of recipes for mixing colors, prepared
by an employee whose duties require him to prepare mixtures of colors which
will reproduce the shades indicated by. designs submitted to him, and to
enter the receipes in a book furnished for that purpose, aijd which are neces-
sary for the immediate manufacture of the carpet designed, and its subsequent
reproduction.* The employer has recovered such receipt-books in trover
from the employee.*
An owner of a process or invention for manufacturing an article, which
was kept secret from all but confidential employees, may restrain former
' Cnses collected in 4 Amer. & Eng. Ency. Supp. 190.
Law 178; Smith's Master and Servant * Baldwin u. Von Micheroux (Sup), 25
166-7. and English cases cited; see Pape v. N. Y. Supp. 857; accord Derapscy v. Dob-
Lathrop (Ind.) 46 N. E. Rep. 154 [1897]. son (Pa.), 34 Atl. Rep. 459.
2 Hiilse V. Machine Co. (C. C. A.), 65 ^ Dempsey v. Dobson (Pa. Sup.), 34 All.
Fed. Rep. 864. Rep. 459.
» Clark V. Fernoline Chem. Co., 5 N. Y. * Makepeace v. Jackson, 4 Taunt. 770.
746 ENGINEERING AND ARCHITECTUBAL JURISPRUDENCE. [§ 820.
employees from disclosing, or using in a rival establishment, their knowledge
thereof, acquired while occupying such confidential relation; audit is imma-
terial that there was no written contract between them, or that at the com-
mencement of the employment the employees were minors, and performed
comparatively unimportant duties.*
The mere fact of the employment does not give the title to a manuscript
to the publisher. Whether one who is paid to write an article for a periodi-
cal, magazine, or cyclopedia can have copyright in the article so as to prevent
the publisher from using it in book form or otherwise than for what it was
written, depends also upon the agreement between the parties expressed or
implied.'
820. Things Made or Created Outside of Office Hours. — What an em-
ployee writes or prepares outside of office hours or independently of the
duties for which he is employed and paid, belongs to himself individually.*
A contract to give one^s whole time, as a draughtsman to the interests of his
employer, an architect, has been held not to be broken by doing a little work
on holidays and at night for other parties, and, it may be added, for himself,
so long as such work does not result in damage to the employer.*
821. Creations Made from Materials Collected while in Another's Ser-
vice.— xi draughtsman or engraver in the government employ can have no
copyright in a chart prepared for the government; ^ and it was so held of an
artist that accompanied a government expedition." An assistant in an engi-
neer's office who executes and completes a map in conformity with the
general design furnished by his employer, who made rough sketches and
supplied newspaper maps, official reports, etc., can have no copyright in the
map.'
If the changes and improvements in a map are material, it is a new map,
and must be copyrighted before it is published, in order to protect it from
piracy.*
822. New Creation Made from Materials Collected by Others. — It seems
that in making a map an engineer may take advantage of all prior publica-
tions, but he must not make a mere copy nor a servile imitation. He must
bestow mental labor upon what he takes from other maps and charts, and
subject it to such revision and correction as to produce an original result.
He should not deny the use made of preceding works and the changes must
be material, and not merely colorable. Whether the changes are merely
' Little V. Gallus (Sup.), 38 N. Y. Supp. C. B. 427.
487, 1014; Peabody v. Norfolk, 98 Mass. * Hermann v. Littlefield (Cal.), 42 Pac.
452; Morrison v. Moat, 9 Hare 255; 10 Rep. 443.
Amer. & En^. Ency. Law 949. * Copyright, 7 Opinion Att'y-Gen'l 656.
2 Sweet V. Benning, 16 C. B. 459; Bishop • Heine v. Appleton, 4 Blatcbf. (U. S.)
of Hereford «. Griffio, 16 Sim. 190. 125; Com. v. Desilver, 3 Pliila. (Pa.) 31.
2 Copinger on Copyright 127; Drone on ' St.'innard v Harrison 24 Law Times
Copyright 259; Gill v. United States, 16 570; Drone on Copyright 254.
Sup. Ct. Rep. 322; as to suggestions by ^ Drone on Copyright 145.
employer, see Sheppard v. Conquest, 17
§823.] ENGINEEWS AXD AUCIIITECrS EMPLOYMENT. 747
colorable, and the new work a, mere servile imitation is a question for the
jury in each case/ The change of a plain map to a mercator projection has
been held not a servile imitation, but an original work. But the publication
of a map at a smaller scale than the original was held a piracy."* A chart of
township boundaries is a subject for copyright."
The natural objects from which a chart is made, being open to the exam-
ination of all, a copyright cannot subsist as to the general subject. A riglit
in such a subject is violated only when copies are made from the chart of
him who has secured the copyright, and thereby avails himself of his labor
and skill." The results of the labor of a draughtsman while in the service of
the commonwealth, working at her cost, belong to the commonwealth, and
the publication of a map made from materials collected while in such service
will be restrained by injunction.^ A tradesman who employs another for
pay, to complete a book of monumental designs for him is entitled to copy-
right in the book. The employee cannot publish designs copied from it.'
823. Employees Right to His Inventions. — Mechanical, civil and electrical
engineers, chemists and mechanics, are inventors by trade. Poverty fre-
quently requires them to accept employment under masters, less capable and
less deserving, who profit from their labors and often appropriate the fruit
of their inventive genius, sometimes rightfully, and frequently without any
legal right whatever. In the absence of an express agreement that the
inventions and improvements made by the employee shall belong to the em-
ployer, the latter can claim no rights to such inventions of the employee.'
Under Eev. St. § 4929, which authorized the issuance of a design patent
to any person who, "by his own industry, genius, efforts, and expense, has
invented," etc., the use of the word "expense" is not limited to mere dis-
bursement of money, and does not prevent the granting of a patent to one
who invents a design while in the employ of another, especially where it does
not appear that any "expense" was necessary in producing the design.® It
does not matter that the improvements are in machines with which he is
connected in his service.' The employer has no right to inventions made
by the employee after his term of employment has expired.*" If an engineer
has been hired expressly to invent, an equitable title to his inventions will
' Copinger on Copyright (1st ed.), 90; JVicWilliams Mfg. Co. v. Blundell, 11 Fed.
Sayre v. Moore. 1 East 361. Rep. 419; Niagara Radiator Co. ■». Meyers
2 3 Amer. & Eng. Ency. Law 139-140. (Sup.), 40N.Y. Supp. 572; Green ?j.Willard
3 Farmer «. Calvert, etc., Co., 5 Am. L. Barrel Co., 1 Mo. App. 202; but see some
T. Rep. 174. early English cases; Bloxam v Elsee. 1 C.
4 Blunt V. Patten, 2 Paine 397 [18281; & P. 558. before service began; Hill v.
Sanborn Map & Pub. Co. v. Dakin Pub. Thompson, 8 Taunton 395; Makepeace v.
Co., 39 Fed. Rep. 266. Jackson, 4 Taunton 770, color-printers'
^ Commonwealth v. Desilver, 3 Philadel- book of receipts recovered by employer in
phia 31 [1858]. trover from employee.
* Grace v. Newman, L. R. 19 Eq. Cas. ^ Matthews Mfg. Co. v. Trenton Lamp
623 [1875]. Co. (C. C). 73 Fed. Rep. 212.
' Smith's Master and Servant (4th ed.), * Gill v. United States, 16 Sup. Ct. Rep.
164; Hapgood v, Hewitt. 119 U. S. 226; 322.
Gill V. United States, 16 Sup. Ct. Rep. 322; '^ Appleton v. Bacon, 2 Black (U. S.) 699»
748 ENOmEERlNO AND ARCHITECTURAL JURISPRUDENCE. [§ 824.
vest in his employer; ^ and an employee may make an assignment of inven-
tions that are yet in embryo in his mind, or even make a general sale of the
inventive power of his mind."
Of course nice questions arise when an engineer is working with or under
the eye of his employer, who may constantly make suggestions, frivolous and
worthless perhaps, but which, when related in court, may be made to embody
the whole invention and the engineer to appear as a subordinate under tho
direction and supervision of a natural born genius, the employer. There
have been employers who have honestly won the name of inventor, and when
it is proved, they are the more deserving of the glory and reward, having
made the invention without the aid of the technical training which every
engineer is supposed to have had. Such cases are the exception in these days.
When it is proved that the employer has made a new discovery and has
hired engineers and agents to assist him in carrying out that principle, and
they, in the course of the experiments arising from that employment, have
made valuable discoveries accessory to the main principle, and tending to
carry it out in a better manner, such improvements are the property of the
inventor of the original principle, and may be embodied in his patent.*
824. What is Invention, and Who is the Inventor ? — " Invention is the
"work of the brain and not of the hands. If the conception be practically
complete, the artisan who gives it reflex and embodiment in a machine is no
more the inventor than the tools with which he works. Both are instru-
ments in the hands of him who set them in motion, and prescribes the work
to be done. Mere mechanical skill can never rise to the sphere of invention.
The latter involves higher thought, and involves and brings into activity a
different faculty. Their domains are distinct. The line which separates
them is sometimes difficult to trace; nevertheless, in the eye of the law, it
always subsists. The mechanic may greatly aid the inventor, but he cannot
usurp his place. As long as the root of the original conception remains in
its completeness, the outgrowth, whatever shape it may take, belongs to him
with whom the conception originated.^' So where an employer had drawn a
design of an engine in the sand, and directed an employee or assistant to
prepare the drawings and the engine was built, it was held that the one who
drew the original design in the sand was the inventor.* To claim the inven-
tion the employee must discover the principle of the machine or invent the
important movements of it.'
The law has been very clearly laid down by Mr. Justice Clifford in the
following words: " Persons employed, as much as employers, are entitled to
their own independent inventions; but where the employer has conceived
> Continental Wind Mill Co. v. Empire ^ P^r Earle, J., Allen v. Rawson, 1 C. B.
Wind Mill Co., 8 Blatchf. (U. S.) 295; 567 [1845].
Joliet Mfg. Co. t>. Dice. 109 111. 649. * Blaudy v. Griffith, 3 Fish. 615 [1869].
« Gases in 18 Amer. & Eng. Ency. Law ^ Bloxam v. Elsee. 1 Car. & P. 567;
135; Hulse v. Bonsack Mach. Co. (C. C A ), Allen v. Rawson, 1 Man. G. & S. 551.
€5 Fed. liep. 864.
§824.] ENGINEER' 8 AND ARCHITECT'S EMPLOYMENT. 74^
the plan of invention, and is engaged in experiments to perfect it, no sug-
gestions from an employee, not amounting to a new method or arrangement
which in itself is a complete invention, is sufiBcient to deprive the employer
of the exclusive property in the perfected improvement; but where the sug-
gestions go to make up a complete and perfect machine, embracing the sub-
stance of all that is embodied in the patent subsequently issued to the party
to whom the suggestions were made, the patent is invalid, because the real
invention or discovery belongs to the employee. If the suggestions or im-
provements made by the employee are ancillary to the plan and preconceived
idea of the employer, such suggested improvements are in general to be
regarded as the property of the party who discovered the original improved
principle and may be embodied in his patent as a part of his invention^
Suggestions from an employee made during the progress of experiments, in
order that they may be sufficient to defeat a patent, must have embraced the
plan of the improvement and must have furnished such information to the
person to whom the communication was made, that it would have enabled
an ordinary mechanic, without the exercise of any ingenuity and special
skill on his part, to construct and put the improvement in successful opera-
tion." / And by Chief Justice Tindal in the following language : " It would
be difficult to define how far the suggestions of a workman [engineer] em-
ployed in the construction of a machine are to be considered as distinct
inventions by him, so as to avoid a patent incorporating them, taken out by
the employer. Each case must depend upon its own merits, but when the
principle and object of the invention are complete without it, it is too much
that a suggestion of a workman employed in the course of the experiments^
of something calculated more easily to carry into effect the conception of the
inventor, should render the whole patent void." '
It is doubtful if an employer can claim or defend an invention first con-
ceived and designed by an employee, even though the employee does
acquiesce in his employer's application and permits him to go to the expense
and trouble of obtaining a patent. When it is considered that the right to
the patent is vested in the inventor, who must himself take the steps
requisite to the grant of the patent, and that it is made necessary to the
grant of a patent to an assignee that an assignment should be previously
recorded and that the inventor should take oath to the specification, it caw
scarcely be doubted that, where the real author of the invention is any other
person than the patentee, it is necessary that some contract capable of
operating as an assignment should precede the issuing of the patent.'
Such a case is to be distinguished from that of a workman who is em-
ployed and paid by one who has conceived the principle and plan of an
invention, and who relies on the ingenuity of another to enable him to per-
» Agawam Co. v. Jordan, 7 Wall 602. » See U. S. Rev. Stat. 48«8 ; Hogg «.
« Allen V. Rawson, 1 Man. G. & S., 551. Emerson, 6 How, (U. S.) 437.
750 ENGINEERING AND ARGRITEGTUnAL JURISPRUDENGE. [§ 825.
feet the details and realize liis conceptions. If under a plea of the general
issue, evidence should be offered that the patentee was not, but that a work-
man was, the real inventor, could the action be maintained without showing
a written assignment or a written contract that would operate as an assign-
ment, even if the real inventor had acquiesced in the patentee's application/
825. Instances of Invention between Employer and Employee. — A case in
point was one where a husband was experimenting with turkeys' feathers,
seeking to make them pliable and suitable for dusters; his wife suggested
that he split them, which he did, and which was practically the solution of
the whole difficulty; it was held that he was entitled to the patent. This
€ase, however, has been criticised by Mr. Meriam in his book on Patent-
ability of Inventions, p. 713, where he expresses the opinion that the wife
was the true inventor, or perhaps the two were joint inventors."
It has been held that an engineer may recover additional compensation
for extra skill and labor bestowed in designing and making plans, if such
extra work was not embraced in the original contract of employment nor
in the duties thereby imposed. Thus when a contractor employs a person
to superintend the construction of an engineering structure, and requests
him to use certain ideas and means for its rapid and economical construc-
tion, which the employee had previously designed ai I planned even though
at the contractor's request, the contractor is liable to the employee for the
preparation of the plans and the extra time devoted during his employ-
ment to perfect and complete them.' *
It has been held that an employee, paid by salary or wages, who devises
an improved method of doing his work, using the property or labor of his
employer to put his invention into practical form, and assenting to the use
of such improvements by his employer, cannot by taking a patent upon
such invention recover a royalty or other compensation for such use. The
fact that the employee made the invention out of working hours, and that
he used neither the property of his employer, the government, nor the
services of its employees in conceiving, developing, or perfecting the inven*
tions, is immaterial, if the cost of preparing the patterns and working draw-
ings of the machines, as well as the cost of constructing the machines that
were made in putting the invention into practical use, was borne by the
government, the work being also done under the immediate supervision of
the employee.*
It is submitted that the rights of the employer in the improvements
made amounts to a mere license, and that the inventor could enjoin any
other party from making use of his inventions.
^ Allen «. Rawson, 1 Man G. & S. 551. » Dull t). Bramhall, 49 111. 364 [18681.
2 National Feather-Duster Co. v. Hib- * Gill v. United States, 16 Sup. Ct. Rep»
bard, 9 Fed. Rep. 558 [188 1 J. 332.
*86e Sec. 810, supra.
CHAPTER XXX.
LIABILITY OF ENGINEER OR ARCHITECT AS A PROFESSIONAL MAN.
MUST BE COMPETENT, SKILLFUL, AND MUST EXERCISE DUE CARE.
826. Engineer's or Architect's Employment Similar to that of Other
Professional Men. — An engineer's or architect's employment is one which
requires care and skill, and a contract for his services includes a reason-
able degree of skill and knowledge of his profession. He must prac-
tice under the same rules and principles that apply to attorneys and phy-
sicians and to other professional men. His liability must, of course, be
determined by his contract of employment, which, as before stated, is sel-
dom set forth with any degree of certainty. Notwithstanding, if a person
holds himself out to the public as possessing professional, peculiar, or com-
petent skill, or offers his services in a professional capacity, which from its
nature implies the possession of such skill, he will be liable, to those who
employ or rely upon him in that capacity and upon that supposition for the
exercise of such skill. ^ The fact that the services are gratuitous does not
relieve him; he is liable to the same extent as though the services were ren-
dered for a reward."
827. Undertaking of a Person Who Offers His Services in a Professional
Capacity. — ^Judge Cooley in his book on Torts gives the law as laid down by
the New Hampshire courts, that a person who offers his services to the
community generally or to an individual for employment in any professional
capacity as a person of skill, contracts with his employer: (1) "That he
possesses that reasonable degree of learning, skill, and experience which is
ordinarily possessed by the professors of the same art or science, and which
is ordinarily regarded by the community and by those conversant with the
employment as necessary and sufficient to qualify him to engage in such busi-
ness";' (2) "that he will use reasonable and ordinary care and diligence
in the exertion of his skill and the application of his knowledge to accom-
plish the purpose for which he is employed; he does not undertake for
extraordinary care or extraordinary diligence any more than he does for
uncommon skill";* (3) "in stipulating to exert their skill and apply their
J Hnrmer v. Cornelius, 5 C. B. (N. S.) ^ Coolej^ on Torts 649.
236 [18581. ^ Leightbn v. Sargent, 27 N. H. 460
2 Semhle, People v. Campbell, 82 N. Y. [1853].
247 [1880].
751
752 ENOINEEBINO AND ARCHITECTURAL JURISPRUDENCE. [§ 828.
diligence and care, tlie medical and other professional men contract to us&
their best judgment/' ^
This is believed to be an accurate statement of the implied promise.
The practitioner must possess at least the average degree of learning and
skill in his profession prevailing in the part of the country in which his
services are offered to the public, and if he exercises that learning and skill
with reasonable care and fidelity, he discharges his legal duty/
828. That the Employee Possesses Skill is Implied from the Undertaking
to Act. — The same rule applies to any other case requiring special or
peculiar skill. If an agent undertakes, for a reward, the performance of
such a duty, without possessing a reasonable and competent degree of skill,
in which fact the principal is ignorant, he will be liable to the principal for
the loss or injury resulting therefrom/ If, however, the principal had
notice or knowledge of the agent's incapacity at the time of the employ-
ment, the agent will not be liable.* No warranty of skill will be implied
when the principal knows that no such skill is possessed. If he sees fit to
employ an unskilled person he must be content with unskilled work; and
the same is true where the agent is employed out of the line of his employ-
ment. If the principal sees fit to employ an auctioneer to conduct his case
in court, or a surveyor to do his engineering, he cannot complain of his
attorney's want of skill, unless the latter expressly warranted that he pos-
sessed it.*
829. Absolute Accuracy or Success Not a Test of Skill or Capacity of a
Man in His Professional Capacity. — Absolute correctness in performing
engineering operations cannot be made the test of the amount of skill
required." Without a special contract, an architect or engineer does not
warrant the perfection of his plans nor of the structure, nor its safety, nor its
durability, any more than a physician or surgeon warrants a cure, or a
lawyer guarantees the winning of a case.' One who undertakes to make a
map of a certain locality must furnish a map of substantial accuracy, but in
the absence of a guaranty, it need not, it seems, be absolutely accurate."
In the absence of an express agreement a physician does not even insure
' Cooley on Torts 649: Leighton v. Sar- (Tenn.) 452; McDonald v. Simpson, 4 Ark.
gent, 27 N. H. 460 [1853]; Peck v. Hutch- "23; Wilson «. Brett. 11 M. & W. 113;
inson (Iowa), 55 N. W. Rep. 511; Hewitt Shipman v. State, 43 Wis. 381; Money-
x. Eiseubart (Neb.), 55 N. W. Rep. 252. penny v. Hartland, 1. Car. & P. 352; s. c,
2 Wilson V. Brett, 11 M. & W. 113; Stan- ' 2 C. & P. 378; Harmer r. Cornelius. 5 C.
ton V. Bell, 2 Hawks (N. C.) 145; Varnum B. (N. S.) 236 ; McFarland v. McClees
V. Martin, 15 Pick, (Mass.) 440; Stimpson (Penn.) 5 Atl. Rep. 50.
V. Spragiie, 6 Greenl. (Me.) 470; Crooker * Story on Bailment. § 435; Felt v.
V. Hutchinson, 1 Vt. 73; Holmes v. Peck. School District, 24 Vt. 297.
1 R. I. 242; Grannis v. Branden, 5 Day ^ Meecbem on Agency. § 496.
(Conn.) 260; Howard v. Grover, 28 Me. « McCarthy «. Bauer, 3 Kan. 237.
97; Ayers v. Russell. 50 Hun 283 [1888], 'Shipman t). State. 48 Wis. 381; Leigh-
wbere a patient was adjudged insane; and ton v. Sargent. 27 N. H. 460 [1853] ; and
see also Lange v. Benedict, 73 N. Y. 35, see Small v. Howard, 128 Mass. 131 [1880].
and cases cited. ^ Munsell v. Baldwin, 56 Conn. 523
• Kirtland «- Montgomery, 1 Swan. [1888].
§831.] ENGINEER'S AND ABCHITECT'8 EMPLOYMENT. 753
that he will benefit his patient/ He is not responsible for want of success,
unless it is proved to result from want of ordinary skill, or want of ordinary
care and attention; nor is he presumed to engage for extraordinary skill or
for extraordinary diligence and care; nor is he responsible for errors of judg-
ment or mere mistakes in matters of reasonable doubt and uncertainty.'' He
is required to exercise only that degree of skill which is ordinarily possessed
by members of his profession." He is charged with the consequences of
mere errors only when such errors could not have arisen, except from want
of reasonable skill and diligence.* To recover for services he need not prove
their value to the patient, but only the ordinary and reasonable value of like
services.* If a man assumes an unusually difficult or hazardous undertaking
he is thereby required to exercise extraordinary care, diligence, and skill. It
was so held of a contractor in the performance of his work, and should apply
with equal propriety to a professional man, as an engineer, or an architect.*
830. Determination of Skill Possessed or Want of Skill. — How this
reasonable degree of skill is to be determined is a question of importance.
There are cases where its presence or absence is so palpable and unquestion-
able that the court may so declare as a matter of law. In cases where the facts
are controverted, and the existence or non-existence of certain of them may
fairly be presumed to affect the mind in any given exigency, the whole ques-
tion of the existence of the facts, and the conclusions to be deduced from
them is to be determined by the jury or other tribunal, by reference to all
the circumstances of the case, including the subject-matter and other objects
of the agency, and the known character, qualifications, and relations of the
parties." The party asserting the negligence of the architect, or his want of
skill, must prove it.'
831. Engineer's or Architect's Undertaking when He Accepts or Solicits
an Engagement. — A professional engineer or architect undertakes and agrees
then to perform several conditions when he accepts an engagement, viz. : (1)
That he has the requisite skill and knowledge; (2) that he will use reason-
able care and diligence in the exercise of his skill and the application of his
knowledge; (3) that he will use his best judgment; (4) and, there should
be added, the obligation which rests upon every person occupying a position
of trust, as that of an architect or engineer, that he tvill be honest. Liability
will attach for a failure to perform any one of these conditions if any injury
result from such neglect or failure, and these conditions need not be the sub-
» Styles V. Tyler, 64 Conn. 432. « Pennsylvania R. R. Co. r. Ogier. 35
'Leighton v. Sargent, 27 N. H. 460 Pa. St. 60; Hubert v. Aitken, 15 Daly
[1853]. 237; Gill v. Midleton, 105 Mass. 477; Eddy
" Utley V. Burns, 70 111. 162 [1873]; in Ms v. Livinirston. 35 Mo. 493; Grant v. Lud-
locality, Wliitesell v. Hill (Iowa), 66 N.W. low, 8 Ohio St. 1; Meechem on Agency, §
Rep 894; Chapman v. Walton, lOBing. 63. 500; but see Vigeant v. Scully, 20 111. App.
^Leighton v. Sargent, 27 N. H. 460 437.
[185:S]; Shipman v. State, 43 Wis. 381. "' Gillman v. Stevens, 54 How. Pr. (N. Y.)
* Mayor t>. Bailey, 3 Denio 433; aernble, 207.
Judge Cooley, in 49 Mich. 153,
754 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 832.
ject of a special agreement. If a person solicits employment in a particular
line of work, the act of solicitation is an assertion by the person seeking
employment that he is competent to discharge all its ordinary duties. The
public profession of an art is a representation and undertaking to all the
world that the professor possesses the requisite skill and ability.' If he
engages in a certain business, as surveying, engineering, or architecture, the
law will imply that he assumes to possess the requisite knowledge and skill,
and that he undertakes to use due and ordinary care in the performance of
his duty; and for a failure in either of these respects, resulting in damages
to the party to whom he owes the obligations, he is liable for the injury.''
832. Professional Man must Possess Ordinary Skill and Exercise Ordi-
nary Care. — He must exercise the ordinary amount of skill possessed by
those of the same profession. It is immaterial how high his standing may be,
if he has the skill and does not apply it, he is guilty of neglect; if he does
not have it, then he is liable for the want of it. Two questions may present
themselves: First, whether the practitioner possesses the ordinary skill of
persons acting as engineer and architects, and, secondly, if he did, whether he
was negligent in the application of his skill. Whether he possesses greater
skill, or has been successful in applying it in other cases is wholly immate-
rial. He cannot show that he was generally reputed to possess a high degree
of skill in his profession, when the employer does not allege or offer to prove
that he lacked ordinary skill.*
If he does not adopt the established mode of treatment, and adopts one
that proves to be injurious, evidence of skill or reputation for skill is imma-
terial, except to show what the law presumes, viz., that he possesses the ordi-
nary degree of skill. It is of no consequence how much skill he may possess,
if he has demonstrated a want of it in the case in question. The failure to
use skill may be negligence, but when the methods adopted are not in accord-
ance with the established practice of his profession, but is positively bad and
injurious, the case is not one of negligence, but one of want of skill.*
833 Negligence or Failure to Exercise Reasonable Care and Diligence. —
A failure to make a visit or inspection as promised at a certain time will sus-
tain a finding of negligence in a physician (or engineer).' In such case it
seems that a physician is not liiible for the unskillfulness of another physi-
cian which he has sent in his stead, the substitute being regarded as an inde-
pendent contractor.^ He is not responsible for evil consequences due to hia
^ Union Pac. Ry. Co. v. Estes (Kan.), 16 som (Sup.), 31 N. Y. Supp. 966; Camp-
Pac. Rep. 131 [1888]. bell «, Russell, 139 Mass. 278 [1885].
"Harmer ?j. Cornelius, 5 C. B. (N. S.) * Carpenter «. Blake, 60 Barb. 488 [1871J;
236 [1858]. semble, Lottman v. Bat-nett, 62 Mo 159.
3 0ba«e V. Heaney, 70 111. 268 [1863]; «Boon v. Reed (Sup.), 23 N. Y. Supp.
Springfield C. A. v. Smith, 32 111. 252 421.
[1863]. ' Myers «, Holborn (N. J.\ 33 Atl. Repw
4 Carpenter v. Blake, 60 Barb. 490 [1871] ; 389. '
SON. Y. 696, explairwd; Deguau v. Ran-
§835.] BNOINEER'S AND ARCHITECT'S EMPLOYMENT. 766
failure to send his patient a specialist, as he had promised to do, for a dis-
order other than the one which he was called to treat.*
A case in point arose in a barber shop, where the barber, who shaved a
postman, used inferior soap and caused eczema, and it was held no recovery
could be had. The barber was responsible for want of care, knowledge, or
skill, but if he had used ordinary care in choosing his materials [soap] there
was no liability."
834. Negligence on the Part of an Agent. — An architect or engineer
as between himself and his employer is, in his usual capacity, an agent or
servant. The rules for the liability of agents are thus laid down by Mr.
Story in his book on Agency : " Whenever an agent violates his duties or
obligations to his principal, whether it be by exceeding his authority or by
positive misconduct, or by negligence or omission in the proper functions
of his agency, or in any other manner, and any loss or damage thereby falls
on his principal, he is responsible therefor, and bound to make full indem-
nity. The loss or damage need not be directly or immediately caused by
the act which is done or omitted to be done. It will be sufficient if it be
fairly attributable to it as a natural result or just consequence."' "It is
the primary duty of an agent, whose authority is limited by instructions, to
adhere faithfully to those instructions in all cases to which they ought
properly to be applied. If he unnecessarily exceeds his commission, or risks
the property of his principal, he thereby renders himself responsible to his
principal for all losses and damages which are a natural consequence of his
act, and it will constitute no defense for him that he intended the act to
be a benefit to the principal." * Therefore, when the principal directed his
agent to send him $300 in $50 or $100 bills and the agent sent the amount
in bills of $5, $10, and $20, which never reached the principal, the agent was
held to have deviated from his instructions and to be liable for the loss; " and
again, where an agent was directed to send money by express, and instead he
sent a check by mail, it was held he must answer to the principal for the
amount of the check which proved to be worthless.'
Judge Cooley says : " Negligence is the failure to observe for the pro-
tection of the interests of another person that degree of care, precaution,
and vigilance which the circumstances justly demand." ^
835. Negligence or Want of Care and Skill of a Professional Man. —
A man who undertakes as a lawyer to conduct an action at law with-
out possessing skill is negligent; and one who undertakes to treat a sick or
^ Jones V. Vroom (Colo.), 45 Pac. Rep. '' 49 Mich. 153; Terre Haute t. Hndnutt,
23-1. 112 Ind. 542: Harmer v. Cornelius, 5 C. B.
2 36 Alb. L. J. 179. (N. S.) 236 [18581; Somerby v. Tappan. 1
« Story on Airenoy, § 217. p. 259. Wright (Ohio) 570 [1834]; Anderson v.
4 Walker v. Walker, 5 Heiskell (Tenn.) Whitaker (Ala.). 11 So. Rep. 919: SprinL^-
428. field C. A. v. Smith, 32 111, 252 ri863],-
5 Story on Agency, § 192. n. 3. Downer v. Davis, 19 Pick. 72 [1883];' Sher-
^ Walker v. Walker, 5 Heiskell (Tenn.) man v. Bates, 15 Neb. 18.
428.
756 ENGINEERING AND AliCUITECTURAL JURISPRUDENCE. [§ 836.
wounded man as a physician or surgeon without possessing a fair degree of
professional knowledge is guilty of a breach of duty/ A mechanic who
undertakes to build a house is liable in damages if through his ignorance he
does his work unskillf ully.^ *
In keeping with the foregoing principles, it has been held that a cloak-
maker was responsible for lack of skill and care in cutting garments from
cloth;' and a dyer for damages arising from his unskillfulness; * that a
workman who recommended himself as competent, and undertook to work
as a master builder, could not recover for his services when his employer
suffered loss through his unskillfulness or negligence; * that one who repre-
sents himself as a builder, and as having a long and large experience in build-
ing, may be dismissed for incompetency, and his employer may recover
from him for any damage sustained by reason of his deceit." If, however,
a superintendent is employed by an owner who knows the habits and ability
of the person so employed, his incapacity and lack of skill need not prevent
him from recovering for his services/
836. Skill Required of Specialists. — The same contracts are implied
and the same rules of liability are laid down in case of physicians/ One case
held that when a patient called upon a clairvoyant physician, it was held that
he should be treated with the ordinary skill and knowledge of physicians in
good standing, practicing in the vicinity, and that instructions to a jury
that he should be treated with the ordinary skill and knowledge of the
clairvoyant system were properly refused and in error." So it has been held
of attorneys.'" The right of action against an examiner of titles for negli-
gsnce exists only in favor of the party to the contract. It does not inure
to the widow of the employer," nor to an assignee of the mortgage negotiated
on the faith of such abstract."
837. Skill and Care Required of Engineers and Architects — Instances.f
— Architects and engineers have been held equally liable upon their implied
representation that they possess the requisite skill, and upon their implied
contract to exercise it. They are responsible for defective and insufficient
1 Torre Haute v. Hudnult, 112 Ind. 542. » Nelson v. Harrington (Wis.), 40 N. W.
« 49 Mich. 153. Rep. 228 [1889]; Pelky v. Palmer (Mich.),
3 Parish v. Gilmore, 33 Wis. 608 [1873]. 67 K W. Rep. 561.
^Woodrow V. Hawving (Ala), 16 So. 'o Bridges v. Paige, 13 Cal. 640 [1859J;
Rep. 720. Mismanagement, Drais v. Hogan, 50 Cal.
6 Gaslin v. Hudson, 24 Vt. 140 [1852]. 121 [1875]; Examiners of titles, Rankin v.
"Jones V. Vestry of Church, 19 Fed. • Schaeffer, 4 Mo. App. 108 [1877]; Roberts
Rep. 59 [1883]. «. The Loan & Abstract Co.. 63 Iowa 76
■J Story on Bailments, § 435; Felt ?>. [1884]; Chase i). Heaney, 70 111. 268 [1873];
School District, 24 Vt. 297 [1852]; Jones and seel'honm^i). Carson (Neb.), 65 N.W.
7). Vestry of Church, 19 Fed. Rep. 59 Rep. 899.
[1883] " Schade v. Gerner (Mo. Sup.), 34 S. W.
8 Carpenter v. Blake, 60 Barb. (N. Y. ) 488 Rep. 576.
[1871]: Robinson v. Campbell, 47 Iowa ^^ Talpey v. Wright (Ark.), 32 S. W.
625 [1878]; Cooley's Torts 649. Rep. 1072.
* See Sees. 253-9, supra. \ See Sec. 858, infra.
§838.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 757
plans ;^ and have been held liable for defective work, such as foundations.
They are bound not only to furnish proper plans, but to see that the struc-
ture is at least reasonably well constructed.' It has been held that a duty
was required of them to cause foundations to be sufficiently deep and other-
• wise protected to prevent settling and the cracking of the walls of a build-
ing/ An architect has been held liable for not having made a chimney-
flue of sufficient dimensions. The fact that the chimney proved inadequate
for the purposes for which it was designed was held to entitle the owner to
a deduction from what was due the architect for his services.* A builder
has likewise been held liable for building a chimney that did not carry off
the smoke.^
838. Owner may Offset His Damages against Sum Due Engineer or
Architect for Services. — The damages sustained may support a counter
claim against the architect, and be deducted from the amount due him
under the contract of employment for drawing the plans and superintend-
ing the construction of the house; but such defects cannot be urged to de-
feat all recovery on the contract, the same having been performed according
to its terms, unless the damage exceeds the amount to which the architect is
entitled."
An architect employed by the owner for reward to superintend the con-
struction of a house is, as between himself and employer, answerable for
either negligence or unskillfulness in the performance of his duty aa
architect. An architect sued for the balance due to him under an agreement
with the owner for commission for his services in superintending the con-
struction of a dwelling house; his claim was resisted, and damages also de-
manded upon a counter claim, on the ground that by his negligence and want
of care and skill in the performance of the duty he had been retained to do
and had undertaken to do, the contractor's work had been done in a defect-
ive and inferior manner as regards the construction of the building and the
quality of the materials.'' In an action for his services, the architect
•employed to superintend the erection of a building and see that the builder
properly fulfilled the conditions of his contract cannot excuse his neglect in
^ Niver v. Nash (Wash.), 35 Pac. Rep. ^ Somerby c. Tappan, 1 Wright (Ohio)
380; Erskine «. Johnson, 23 Neb. 265; 570 [18341; and see Krebs Mfg. Co. v.
Lake v. McElfatrick (Sup ), 19 N. Y. Supp. Brown (Ala.), 18 So. Rep. 659.
494, reversed in 139 N. Y. 349; Pierson v. * Shreiner v. Miller, supra; Hubert v.
Tyndall (Tex.). 28 S. W. Rep. 233. Aitkin, 15. Daly 237 [1889J; 14 Araer. «fc
2 Sbipinan v. State, 43 Wis. 381; Money- Eug. Ency. Law 781.
penny ■». Hartlaiid, 1 C. & P. 352; Gilman ^ Badgley v. Dickinson, 13 Ontario App.
V. Stevens, 54 How. Pr. (N. Y.) 197; and 494 [1887]; the following authorities were
see Petersen v. Rawson, 34 N. Y. 370; cited: Sbiells v. Blackburne 1 H. Bl. 158;
Newman v. Fowler, 37 N. J. Law 89. Hamilton Provident & Loan Society c.
'Shreiner v. Miller, 67 la. 91 [1885]; Bell, 29 Gr. 203; Canada Landed Credit
accord, Newman v. Fowler, 8 Vroom (N. Co. v. Thompson, 8 A. R. 696; Harmer v,
J.) 87. Cornelius, 5 C. B. (N. S.) 236; Turner©.
4 Hubert d. Aitkin (N. Y.), 15 Daly 237; Goulden, L. R. 9 C. P. 57; Re Hopper, L.
,{1889]; and see semble,Bxovmv. Burr (Pa.), R. 2 Q. B. 367; Ranger v. Great Western
3 Atl. Rep. 828. Ry. Co., 5 H. L. Cas. 72.
758 ENGINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 839.
the performance of his duties by showing that the owner was about the
premises during the progress of the work and must have seen the imper-
fections set up in defense of the claim.^
In another case the architect sued for his fees and commission for draw-
ing plans and specifications and superintending the erection of a house. •
He had given certificates to the builder greatly in excess of the proportion
stipulated for by the contract, and the builder having subsequently failed,
the owner was compelled to have the work done by others, at a higher price.
It was held that he was entitled to deduct from the amount which would
have been due to the architect the loss sustained by the latter's negligence
in certifying for too much. The terms of the building contract are not
stated in the report, though it is probable that they were the usual ones.
The case was fully argued, but it does not appear to have been suggested
that the plaintiff^s position as arbitrator exempted him from responsibility
for negligence under his own agreement with the defendant."
The same law holds when an engineer is called upon in his professional
capacity to make investigations, inspections, and estimates, and either from
want of skill or negligence on his part, the report or estimate is incorrect;,
he is liable to his employer for unnecessary expense or injury occasioned.*
An engineer who made estimates of a bridge for a contractor without
informing himself (by boring or otherwise) of the nature of the soil for the
foundations, which proved to be bad, should not be allowed to recover for
his services in making plans, estimates, and specifications if his employer
has been damaged by a greater amount than what the services were worth.
It is no excuse that he relied upon information and advice of another engi-
neer, who had made experiments and investigated the soil; that when he
was employed to estimate the expense of works he was bound to ascertain
for himself by experiments the character of the soil; if he relied upon the
information of others, which turned out to be false or insuflScient, he was.
liable for the consequences; and the opinion was expressed that an engineer
shoald not estimate work at a price at which he would not contract for it,
for if he does he deceives his employer.*
839. Architect or Engineer must Give Such Careful Superintendence
and Inspection as to Prevent the Contractor from Making Material Omis-
sions and Variations. — When a building is to be erected according to the
plans and specifications and under the superintendence of an architect, and
to his satisfaction, payment to be made on the production of his certificate,
the architect must bestow such care and attention that the carpenters and
masons will not make any material variation from the plans and specifica-
^ Lotholz v. Fiedler, 59 111. App. 379. * Mistakes in making a survey, McCaithy^
2 Irving n. Morrison, 27 C. P. (Upper i). Bauer, 3 Kans. 237; but see Hulsey v.
Canada) 242: hut see Vigeant v. Scully, 20 Hobbs (Ky.). 32 S. W. Rep. 415.
111. App 437; Shipman v. State, 43 Wi?. ^ Moneypenny v. Hartland, 1 C. & P.
381. which held that monthly estimates 352 [1824]. 2 C. & P. 378 [1826]; and see
need not be accurate. Whitty «. Lord Dillon, 2 F. & F. 67. •
§839.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 75^9
tions which ordinary care and attention, when bestowed by a competent
architect, would detect and prevent, or detect in time to be remedied.' If
he fail to bestow such care and attention, and damages result to his
employer,, he loses his claim to compensation for so much, notwithstanding
the owner may have a remedy against his contractor. This is true even
though the owner may have settled with the contractor in full after the
architect had refused to give his certificate, which the contract required
as a condition precedent to payment for the work.^
When the contractor, by the terms of the contract, agreed to lay out his
work himself, and- made a mistake in the height of certain windows above
the floors, and it has been proved that the architect has diligently superin-
tended the progress of the work, it was held that such a defect was not charg-
able to the architect under the circumstances of the case.' This judgment
was reversed in the superior court, and the case was carried to the court
of appeals and the decision stated sustained, but with dissenting opinion.
The ground of reversal was upon the question of fact whether or not "the
architect was diligent in his attendance upon the building," and if he " had
bestowed as much personal attention upon the building as was necessary,
and that the variations mentioned were not caused by carelessness^, negli-
gence, or inattention on his part/' Considerable stress was put upon the
fact that the contractor was by the terms of his contract ''to lay out
his own work." The majority of the appellate court agreed with the
referee, who had inquired into the case, that a mistake on the part of the
builder by which windows in the front of the building were 2| inches
higher than those in the rear, was not such an error as the architect was
bound to discover in his regular superintendence of the progress of the work.
However, the rule laid down, that an architect is responsible for his failure
to bestow such care and attention as shall detect and prevent material and
important variations from his plans and specifications, remains unques-
tioned.* It is the architect's duty to discover and guard against all such
defects as can be prevented by the exercise of the ordinary skill and atten-
tion of a person of his profession and in his relation.' The nature and
extent of an architect's duties has been held to be a matter of fact, and not
of law, to be determined by the jury from the evidence of the case, guided
by proper instructions from the court."
On the same ground, building inspectors who are required by a city ordi-
nance to inspect buildings in the course of their erection, and to see that
' Peterson v. Rawson, 2 Bosw. (K Y.) case that would have been in point but for
234 [1857]. the impertinent answers of the comrais-
2 Peterson v. Rawson, supra ; accord, sioners. It was lost on account of the
Pierson v. Tyndall (Tex.), 28 S. W. Rep. pleadings.
232. 5 Gil man v. Stevens, 54 How. Pr. (N. Y.)
s Peterson v. Rawson, supra. 197 [1877].
^ Peterson v. Rawson. 34 N. Y. 370; « Vigeant v. Scully, 20 Bradw. 437.
Shipman v. State, 43 Wis. 381, is another
760 ENQINEEBING AND ARCHITECTURAL JURISPRUDENCE. [§ 840.
the buildings are erected as provided by the ordinance, has been held liable
to persons damaged by the nonperformance of a duty imposed upon them to
require the building to be properly constructed/
840. Engineer and Contractor or Architect and Builder Jointly and
Severally Liable. — If an architect is to oversee the erection of a house,
and it is badly built, being defective in workmanship and materials in
oonsequence of the joint neglect or want of skill of the architect and the
contractor, an action will lie against either the architect alone or the con-
tractor, or both, and the one sued may be held responsible for the entire
detriment or injury occasioned. Nor can the one sued claim contribution
from the other, so as to divide the loss equally between them, the principle
of the law being that it will not undertake to adjust the burdens of mis-
conduct. Nor will the fact that the owner has refused to pay. a part of the
money due to the contractor because the house was badly built bar such a
fiuit against the architect. It is not a necessary consequence that the archi-
tect be responsible for every part of the neglect or misconduct of the con-
tractor. He is responsible only when the negligence of the contractor was
such as to have been discoverable by the exercise of reasonable care and
skill on the part of the architect, and for the effects of negligence beyond
this measure the contractor would be answerable alone.'
An architect is bound only to exercise reasonable care, and to use reason-
able means of observation and detection in the supervision of the building,
and when he appears to have done so, the mere fact that inferior material
has been used by the contractor in some instances, and that the plumbing
had been carelessly done, does not establish as a matter of law that he has
not fully performed the contract.'' He is bound to exercise, for the protec-
tion of the employer, a reasonable degree of skill and care, and will be
liable for any loss or damage occasioned by a failure so to do; yet an agent,
architect, or engineer cannot be held responsible for unforeseen and un-
expected losses or damage out of the ordinary course of business or of
natural events, and not to be guarded against by reasonable diligence and
ioresight.*
The law presumes that an architect or engineer has done his duty, and
the burden of proving to the contrary is upon the employer or person who
alleges the architect's unfitness or negligence.^
841. Owner Not Liable for Misconduct of His Architect. — In general, no
action will lie against the owner for misconduct of his architect who has
been employed merely to prepare plans and specifications and to procure a
builder to erect the building. In a case where an architect had made an
^ Merrilt v. McNally (Mont.), 36 Pac. semhle Oilman v. Stevens, 54 How. Pr. 187
Rep. 44. [1877].
» Newman v. Fowler, 37 N. J. Law 89 (8 ^ Gaither v. Myrick, 9 Mo. 118; Lampley
Vroom) [1874]. v. Scott, 24 Miss. 533 ; accord, Styles l>.
3 Hubert v. Aitkin, 5 N. Y. Supp. 839. Tyler, 64 Conn. 433.
* Johnson v. Martin, 11 La. Ann. 27;
§841.] ENGINEER'S AND ARCHITECTS EMPLOYMENT. 761
estimate of the work and materials necessary, arid had represented to the
builder that they were correct, upon the strength of which the builder
made a bid and entered into a contract, it was held he could not recover
against the owner for the extra cost, the estimate having been greatly below
the actual cost, that the amount of his recovery was limited to the contract
price. To entitle the contractor to recover more than the contract price
three things must be made out: (1) that the architect was the owner's
agent; (2) that the architect was guilty of fraud or misrepresentation;
(3) that the owner knew of it and sanctioned it. If these facts were not
shown, and there had been misconduct on the ^art of the architect, the
contractor's remedy must be against liim.^
A dictum apparently to the contrary was expressed in a later American
case, in which an engineer regularly employed by a company in chaige of
the company's works, under whose direction and constant supervision the
works were performed, was declared a special agent of the company (not the
agent of the contractor) as to measurements and calculations made by him
and his assistants, and if they were not correct, and extra and unnecessary
work and expenditure should result, the loss ought not to fall on the con-
tractor, but upon the company. The facts of the cases differ materially.
In the latter case the contract expressly states the engineer to be the engineer
of the company, although by its terms nothing could be done contrary to
the stipulations of the contract without the written consent of the com-
pany; yet also by its terms the contractor was entitled to rely on the actual
instructions and directions of the engineer within the scope of his authority.'^*
These powers would make him an agent; but the cases may be distinguished
further in that in the former case the estimates were made and submitted
to the contractor before the contract was made, and the builder accepted
them on faith, while in the latter case the estimates were a part of the con-
tract and necessary to its performance.
A contractor who performs extra work upon the assurance of an engineer
of the company that it will be paid for or allowed by the company without the
authority of the company or the requisite formality prescribed by his con-
tract cannot recover from the company; he must look to the engineer for
compensation, if he recovers at all, which will depend upon what personal
liability the engineer assumed in ordering work." There is, moreover, an
element of negligence on the part of the builder in accepting the estimate
of the architect, and in not making an estimate himself or having it made
by the engineer of his own selection. Another case illustrates the element
of negligence more strikingly, in which a builder had agreed to sign a con-
tract to execute for a definite sum certain works described in some rough
> Scrivner t\ Pask, L. R. 1 Com. Pleas Eq. 396 [1869].
Cas. 715 [1866]. » Woodruff v. R. & P. Ry. Co., 108 N.
» Seymour v. Long Dock Co., 20 N. J. Y. 39 [1888].
* See Sec. 421, supra.
762 E^OINEEUINO AND ARCUITEGTURAL JURISPRUDENCE. [§ 842.
sketches and verbal explanations of an architect. The architect sub-
sequently sent to the builder a contract to perform, for the sum previously
agreed upon, the works delineated and described in certain plans and
specifications thereto annexed, and which differed materially from the
works described in the rough sketches and verbal explanations on which the
builder had made his tender. Having signed the contract and proceeded
with the work, it was held that he was not entitled to any relief, that the
mistake under which he had signed the contract was due to his own negli-
gence.*
842. Engineer and Architect are Liable to their Employer and to Nobody
Else. — An agent is liable to no one except his principal (his employer)
for damage resulting from an omission or neglect of duty, or want of skill
or attention, even though such omissions be with a malicious intent to in-
jure a third person and have that effect.' An architect or builder of a
public work even is answerable only to his employer for any want of care or
skill in the execution thereof. He is not liable to third persons for acci-
dents or injuries which may occur after the completion of such work.' *
A manufacturer is liable only to the purchaser of his goods for defective
materials and for want of skill and care in the construction of the article
sold. A third party injured may not sue the manufacturer* unless the
negligence is imminently dangerous to others, as when a druggist makes a
mistake in labeling or compounding a medicine."*
A distinction has been made in law between a tort to a third person due
to the omission of some act or obligation to the public, and the commission
of some act amounting to a tort. When he omits to do some duty or obli-
gation which he owes to his employer and which is a tort to a third' person,
he is not liable; but when he commits a tort which is an injury to any one,
there is no reason why he should not be liable for his acts, as any one else.
Therefore, when an architect having the general charge and superintendence
of work adopted a certain method and means of construction and repair,
and the plan was a bad one, or the supports were inadequate, and a disaster
resulted which was attributable to misfeasance or negligence in a work
which the architect undertook, and in which he failed to exercise the care
and skill which the law imposed upon him, he was held responsible not only
to his employer, but to workmen who were injured in consequence."
When the superintendent of a plantation neglected and deliberately re-
fused to keep a drain open on the premises of his employer, by reason of
which neglect and refusal [omission] a neighbor's lands were flooded and great
' » Kimberly v. Dick, 41 L. J. Ch. 38 * Wiuterbottom v. Wright, 10 M. & W.
[1871]. 109; Losee v. Clute, 51 N. Y. 494
2Feltus V. Swan, 62 Miss. 415 [1884]; ^ Thomas «. Winchester, 16 N. Y. 397.
Downer v. Davis, 19 Pick. 72. • Lottman v. Barnett. 62 Mo. 159 ; and
» Mayor v. Cunliff, 2 N. Y. 165. see Trustees 'o. Bradfield, 30 Ga. 1.
* See Sees. 275, 515, 553, supra.
§843.] ENOINEER'8 AND ABGHITECT'S EMPLOYMENT. 763
damage done, it was held that the superintendent was not liable to the
neighbor, and no action could be maintained against him;' but when an
engineer in the act of running a railway line through a village drove a
stake in one of its streets, over which a citizen fell and broke his leg, it was
held that the tort was the personal act of the engineer in running the line,
and in law it was the act of the company by whose authority and in whose
■service the work was done, and that the citizen had his election to seek his
reriiedy against one party or against both parties jointly."
843. Liability for Acts of Assistants. — The question frequently arises as
to who is liable for the acts of assistants, sub-agents, or servants. It is a
question of who employs or has the control of the person who commits the
act. * If an engineer selects an assistant on behalf of the company and
with its authority, and as an employee of the company, the assistant is an
employee of the company, even though he receives his .instructions and is sub-
ject to the control of the engineer; but if the engineer has undertaken to
do business or accomplish some task or undertaking for his employer, and
he employs assistants on his own account to assist him in what he has un-
■dertaken, then the assistants are the representatives of the engineer only,
and are responsible to him for their conduct, and the engineer is responsible
to the company for the manner in which the work or business is done,
whether by himself or his assistants. In the latter case, the engineer is in
a position of an independent contractor, at liberty to perform the under-
taking by the agencies of his own selection, and is responsible to his own
principal for the due execution of the enterprise by the means he has
selected.
The authority of the engineer to employ assistants on account of the
company is frequently implied by the circumstances of the case, as when the
chief engineer of a railroad company has been employed " to survey and
establish " its line, it was held that he was authorized to employ the neces-
sary subordinates and assistants on behalf of the company, and that they
became by such act of hiring the servants of the company.'
It may be a matter of custom or precedence. Thus if the engineer's
contract of service does not prohibit him from selecting or employing his
assistants, he may show that it was the custom for engineers to hire their
own assistants, in order to establish the relation of master and servant
between the company and his subordinates.* f
' Feltusv. Swan, 62 Mi^s. 415 [1884]. Miss. 581; GilHs t. Duluth, etc., R. Co.
2 Giudger v. Western N. C. R. Co., 87 (Minn.), 25 N. W. Rep. 603.
N. C. 525 [1882]. * White v. San Antonio W. W. Co.
8 New Orleans, etc., R. Co. v. Reese, 61 (Tex.), 29 S. W. Rep. 252.
* See Sees. 653-669, supra.
f See Custom and Usage, Chap. XXI, Sees. 603-628, supra.
CHAPTER XXXI.
LIABILITY OF ENGINEER OR ARCHITECT WHEN HIS FUNCTIONS ARE
JUDICIAL OR DISCRETIONARY.
844. Not Liable for Many Acts or Omissions when His Functions Are
Judicial.* — What has been said thus far in the preceding chapter of the
liability of engineers or architects has been with reference to them strictly
in their professional capacity or when employed as agents or servants. In
other capacities and for many acts or omissions, they may be relieved en-
tirely from responsibility.
There are certain conditions and circumstances under which the law and
the public good require that a man should be relieved from the consequences
of his acts, within certain limits, and it happens that two of these conditions
belong particularly to engineering and architectural practice. Either con-
ditions may exist when he is a servant or employed professionally, so that
what has been said in the early part of this chapter must be tempered and
modified when such conditions exist. One of the conditions and circum-
stances mentioned is that surrounding a judge, in his judicial capacity.
To administer justice with freedom and security a judge must be free to
discharge his functions after the dictates of his own conscience, unaffected
by fears of prosecutions by persons who may have been dissatisfied with his
decisions. This has always been the established law, that a judge was
shielded from all liability in the exercise of his judicial duties so loug as he
exercised them honestly. The justice and necessity of such a rule cannot be
questioned, but this immunity from action is not confined to those only who
«it as judges in court. It extends for the protection of every officer who
is called upon to exercise duties which are in their nature judicial, or which
are to be performed according to the dictates of his judgment.^ \
Such duties when exercised by other than judges of the courts have been
termed quasi-judicial or discretionary, but if they be judicial in their nature,
the officer may be said to act judicially and he is exempt from liability for his
own acts. What are judicial powers has been defined as authority to hear and
determine questions in which the rights of persons or property or the pro-
priety of doing an act are the subject matters 'of an adjudication. Official
actions which are the result of judgment or discretion are judicial acts.*
» Meechem's Public Officers, § 588. em's Public Officers, § 588; Edwards v.
2 Grider v. Tally, 77 Ala. 432; Meech- Fergusou, 73 Mo. 686 [1881], many cases
* See Sees. 179, 180, supra. f ^^ Sees. 172-180, 246-248, and 430-434, supra.
764
§ 846.] ENGINEER' 8 AND ARCHITECTS EMPLOYMENT. 765
The fact that the person often or usually acts ministerially is immate-
rial; he is equally exempt from liability in those cases in which he acts
judicially.* The principle embraces the actions of arbitrators in their de-
cisions upon the controversies submitted to them; V of jurors in their delib-
erations and verdicts; of aldermen in determining who shall be given a
contract for work.'
845. Attempts have been Made to Discriminate between Judges in Court
and Judicial Officers. — " An attempt," says Dillon in his Municipal Corpora-
tions, " has been made in some cases to make a distinctian between those
officers whose duties lie outside the domain of courts— the so-called quasi-
judicial officers — and the judges of courts, to the effect that while the latter
are exempt, the former may be made liable if their motives were corrupt or
malicious." * This distinction however he believes not to be well founded.
If the action is really judicial, the immunity which adheres to judicial action
should be applied whether the officer sits upon the bench of a regular estab-
lished court or not. If the action can be maintained by the allegation of
improper motives, no litigant woiild fail to allege them, and the public officer
might be constantly called upon to defend himself from actions brought
with motives fully as malicious as those which are alleged to have inspired
him. Public policy requires that all judicial action shall be exempt from
question in private suits, and the best considered cases so declare the rule.*
The reasons given apply with equal force to all judicial action, to arbitrators,'
to quasi-judicial officers,'^ and to members of a common council who have
"willfully and corruptly refused to accept abidder^s proposal for doing certain
public work. It is said ^' to be the well-settled rule of law that no
public officer is responsible in a civil suit for a judicial determination, how-
ever erroneous or wrong it may be, or however malicious even the motive
"which produced it." ® In another case the rule was said to extend to judges
from the highest to the lowest; to jurors and to all public officers whatever
name they bear in the exercise of judicial power.'
846. Engineer's or Architect's Judicial Status. — It is a universal custom
in construction contracts to constitute the engineer or architect a referee,
umpire or arbitrator for the determination of questions in dispute, or of
matters of facts necessary to be determined in order to complete the works
or to pay for them. In determining such questions the engineer or archi-
tect acts judicially. He is in much the same position as a judge, and should.
cited by Attorneys for Apellants; Board of ing v. Robinson, 3 Cush. 543; Gregory v.
Regents in erecting school buildings, Wall Brooks, 87 Conn. 365.
V. Trumball, 16 Mich. 228; Assessor, Siebe ^ Meechem's Public OflBcers, § 588;
v. San Francisco (Cal.), 46 Pac. Rep. 456. Bradley ®. Fisher, 13 Wall. (U. S.) 335.
^ Meechem's Public Officers, § 588. ® Jones v. Brown, 54 Iowa 74,
2 Jones 0. Brown, 54 Iowa 74; Pappa v. ' Chamberlain v. Clayton, 56 Iowa 331.
Rose. L. R. 7 C. P. 525. « East River Gas L. Co. v. Donnelly, 93
' East River Gas L. Co. v. Donnelly, 25 N. Y. 557; semble, Jones v. Brown, 54-
Hun 614; s<?« Dillon's Municipal Corp'ns. Iowa 74.
* Hoggatt V. Bigley, 6 Humph. (Tenn.) ^ Weaver v. Devendorf, 3 Den. (N. Y.)
236; Baker v. State, 27 Ind. 485; Chicker- 117; Turpen v. Booth, 56 Cal. 65.
766 BJmiWEHRINO AND ARCHITECTURAL JURISPRUDENCE. [§ 846.
have the same protection. His judgment should be rendered free from the
dictations of other judges; it should be a result of his own honest convic-
tions and studied conclusions; he should act without fear of subsequent pen-
alty, and should be exempt from annoying litigation before other tribunals
on account of his decisions. Such is the established law. The engineer or
architect need not be an arbitrator in the strictest sense, it is enough if he
be in the position of an arbitrator; if he be a person by whose decisions two
parties, having a difference, have agreed to be bound. If he undertakes to
give a decision between two parties as to any matter, though he may not be
an arbitrator in a strict sense of the word and is not bound to exercise all
the judicial functions that an arbitrator would have to exercise, nevertheless
he is not liable to an action for want of skill/
In such cases it was found so difficult to discriminate between want of
skill and negligence that it was later held that the engineer or architect,
when acting judically as a referree, is not liable for want of care or negli-
gence; that the parties having submitted questions for his determination and
having agreed to be bound by his decisions, must abide by it." It has been
intimated by excellent authority that an arbitrator would not be liable to an
action even for misconduct, and he sustained the proposition by the state-
ment that he could find no case in which such an action had been brought.'
Justice Brett, in regard to the referee being a professional man, said : " I
apprehend that the principle of law which forbids an action for want of skill
or care against an arbitrator or a 5'w«5i-arbitrator is just as applicable to a
skilled or professional arbitrator as to one that is unskilled and unprofes-
sional, and that the fact of its being his business makes no differ-
ence. This case must occur constantly. It must constantly happen that
parties are dissatisfied with the decision of an arbitrator or 5'w«s^-arbitrator,
and yet we find, notwithstanding the facility with which speculative actions
for negligence are brought on the slenderest grounds, that there isvuo pre-
cedent for such an action for negligence, and I am not disposed to lay it
down for the first time that such an action is maintainable."*
No action can be brought by the contractor at law, against the engineer
for not certifying, where the contractor's remuneration has been made, by
his contract, contingent upon his obtaining the engineer's certificate that the
work bargained for has been executed, if the engineer was not a party to the
contract, even though the engineer's refusal to certify has been the result of
fraud or even of collusion with his employers. The proper course for the
contractor to adopt is to proceed against both the engineer and company;
whether in a court of equity or at law he must include the company who
contracted with him.**
» Pappa V. Rose, L. R. 7 C. P. 32, 525. * Tharsis Sulphur ^& Copper Co. t>.
2 Tharsis S. & C. Co. v. Loftus, L. R. 8 Loftus, L. R. 8 C. P. Cas. 1 [18721; Pappa
C. P. 1 [1872]. V. Rose, L. R. 7 C. P. 32, 525.
3 Watson on Arbitration [3d ed.], 113; * Speck v, Phillips, 5 M. & W. 283.
Speck V. Phillips, 5 M. & W. 283.
f 847.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT, 767
847. Engineer or Architect Must Not Act Fraudulently. — The miscon-
duct must not amount to fraud or collusion with one of the parties against
the interests of the other party. For a later English case is authority for the
statement that an action of tort will lie by a contractor against an architect
who fraudulently and in collusion with the owner refuses to certify that he
is satisfied with the work done, whereby the contractor is unable to obtain
jDayment for his work/ No such action had previously been allowed, but an
action had been allowed for maliciously inducing another to break a con-
tract,' and the action was permitted on that precedent. An opinion has
also been expressed that an action would lie against parties who fraudulently
prevented the architect from giving his certificate.' In the absence of fraud
or collusion, the contractor has no remedy against the engineer or archi-
tect.*
In a comparatively recent case, in which a contractor brought suit against
an architect, an allegation that the contractor had signed the contract under
the belief and expectation, as the architect knew, that he, the architect,
would use due care and skill in making his estimates, but that he did not
use due care and skill in ascertaining the quantities, and neglected and
refused to ascertain them in the manner provided, and had certified know-
ingly and negligently for a much less sum than was the net balance payable
to the contractor, was held not a sufficient allegation of fraud to sustain the
action. That the functions of the architect in ascertaining the amount due
the contractor were not merely ministerial, but such as required the exercise
of professional judgment, opinion and skill, and that he therefore occupied
the position of arbitrator against whom the action would not lie, no fraud or
collusion being charged.* A further allegation that the architect refused to
reconsider the certificate and estimate and to allow the contractor to point
out to him the errors in the bills of qantities, gave him no more rights to an
action against the architect.' The judge said: " I do not intend to hold that
to all intents and purposes the architect is an arbitrator, but I think the
duties are analogous to those of an arbitrator. His duties are matters of
judgment requiring the exercise of opinion and discretion; and it appears to
me that the architect in this case is an arbitrator to this extent, that he is from
beginning to end to keep an eye on the work, in order to exercise a judg-
ment in the matter.'' ^ If fraud, collusion, or bad faith had been charged,
the court expressed the opinion that an action could have been had against
the architect ; and it seems one could have been maintained if the architect's
« Ludbrook v. Barrett, 36 L. T. R 616 [1865].
[1877], see also Byrne v. Sisters of Eliza- ^ Stevenson v. Watson, L. R. 4C. P. D.
beth, 16 Vroom 213; Chismr. Schipper, 51 148 [1879].
N. J Law 1 [1888], Atty's arguments. ' Stevenson v. Watson, supra.
« Lumleg «. Gye, 2 E. & B. 216. ^ Pappa v Rose, L. R. 7 C. P. 32, 525.
•Milner v. Field, 5 Exch. 829; accord, The Tharsis Sulpur & Copper Co. v.
3atterby v. Vyse, 2 H. «& C. 42. Loftus, 43 L. J. Rep. (C. P.) 6, and casea
4 Clarke t>. Watson, 18 C. B. (N. S.) 278 cited.
768 ENQINEEmNO AN!) ARCHITECTURAL JURISPRUDENCE. [§ 848.
duties had been merely ministerial.* Russell, in his Law of Awards, lays the^
same law down, and says: *' An action will not lie against an arbitrator for
want of skill nor of negligence in making his award, nor for the like cause
against an engineer or architect employed to determine matters as a quasi-
arbitrator; ^ but an action will lie for fraudulently withholding his certificates,
under which alone the contractor was entitled to payment, though no costs
be prayed against the engineer/^ '
When an engineer is made a co-defendant with his company, he is not in
general bound to give his reasons for making his award. An award may be
a bar to such discovery in a suit in equity, but if fraud, corruption, or par-
tiality be charged, they must support their plea by an answer showing them-
selves to be impartial and not corrupt, for it would be inequitable to leave
them at liberty to cover their own misbehavior by their own award. So if
fraud and collusion are imputed, and the certificates are declared insuffi-
cient, and certain items specified as evidence of the fraud, the engineer
cannot protect himself, by his character of arbitrator, by denying the
fraud in general; in his answer he should answer as to the particular items
specified.^
848. Engineer is Liable to His Employer, when He may Not be Liable to
Contractor.. — A later Canadian case, after a careful review of the authorities,
lays down the same law, but distinguishes between an action against the
architect by a contractor and one by his employer. With the contractor
there is no implied contract to exercise an ordinary degree of care and skill,
while with the owner he is in the same position as any other professional or
skilled person, and is responsible if he omits to perform his work with an
ordinary and reasonable degree of skill and care, whether it be in the prep-
aration of plans and specifications or in the doing of any other professional
work for reward.* In delivering the opinion, his lordship, the justice, said :
"I am prepared to rule that you cannot recover any damages from the
architect for any loss you have sustained in having a poor building without
fraud. The only question that you can show is that he has not done the
work for which he charged ; that is all. The case is exactly the same as one
in which there is an arbitrator. I have always thought the position of an
arbitrator a most absurd one. He has powers given to him that are given to
no other being in the world, and it results in hard feeling and litigation;
but the parties, if they choose to enter into such a contract, must abide by
it. Having put him in the position of sole arbitrator, they have to show, if
they want to hold him liable, not that he had exercised a very poor judg.
ment, or that he is unskillful, but that he has been dishonest and fraudu-
lent. If you can shovv me he did not do the work for which he has charged.
Tie cannot recover. If you show he did it negligently, I am afraid you have
* Stevenson v. "Watson, 48 L. J. (N. S.) ^ Russell Law of Awards 502.
818 [1879]. ^Badgley t). Dickson, 13 Ont. App. 494
a Russell Law of Awards 497. £18873.
§ 848.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 769
no action. The present case is, in my opinion, broadly distinguished from
those relied upon by the contractor in support of his claim. The principle
affirmed or established by those cases is, that it is not consistent with pub-
lic policy that an action should lie against an arbitrator or quasi-ixrhitrdtor,
whose functions are of a judicial nature, for negligence or want of skill in
the performance of his duty as such. The justice and expediency of such a
rule is manifest. When two parties agree to be bound by the decision of a
third party on a matter in dispute between them, or upon which a liability is
to arise on the part of one of them, they take him, as it is said, for better or
worse, and there is no implied obligation on his part to bring any particular
amount of care and skill to the performance of the duty, if he undertakes
it. All that is required of him is, that he shall act honestly and faithfully
to the best of his judgment.'^
As a professional engineer, " he was bound to exercise ordinary care and
Bkill, but when he became the person who was to determine a dispute, he
•was a person filling a position which brought him within an exception well
known to the law of England, viz., that a person who is appointed, and is
acting as an arbitrator to determine a matter in difference between two or
more persons, does not enter into an implied promise to bring to the perform-
ance of the duty entrusted to him a due and reasonable amount of skill and
knowledge. The question is one of implied undertaking, and the law says
there is none such." '
The case of Stevenson v. Watson, 4 C. P. D. 148, was an action of a con-
tractor, under a building contract, against the architect of the building
for not using due care and skill in measuring quantities and ascertaining
the amount to be paid by the owners, and for negligently certifying for a
much less sum than the balance due to the plaintiff. The contract (to
which the architect was not a party) substantially provided that the con-
tractor and the owners should be bound to leave all questions or matters in
dispute which might arise during the progress of the works to the architect,
whose decisions would be final and binding upon all parties, and that the
contractor would be paid upon the certificate of the architect. It was held
that the architect was not liable, on the ground, as stated by Lord Coleridge,
C. J., that it was within the authority of the cases which decide " that where
the exercise of judgment or opinion on the part of the third person is necessary
between two persons, such as a seller and buyer, and in the opinion of the
seller that judgment has been exercised wrongly, or improperly, or negli-
gently, or ignorantly, an action will not lie against the person in that posi-
tion." It was pointed out that there was no direct contract between the
contractor and the architect, and Justice Denman said that it appeared to
him that the architect did not, by undertaking the office of arbitrator,
undertake any duty amounting to more than that of honestly performing
his functions.
» Brett, J., in Papa v. Rose, L. R. 7 C. P. 40.
770 ENOINEERING AND ABCBITECTURAL JUBI8PRUDENCE. [§ 849.
In all these cases and others which might be cited of a similar nature, it
will be seen that the action was against the arbitrator, founded upon the
breach of a supposed implied undertaking to perform his duty as such with
an ordinary degree of care and skill, and the action failed because no such
undertaking was implied by law, and there was no contract, expressed or
implied, between the parties out of which any other duty or liability could
arise. In thi's case the act and counter-claim are based upon a distinct con-
tract, by which the architect was employed as a skilled professional person
to perform certain services for reward, and he is not, in my opinion, absolved
from the usual obligations attaching to such a contract between his employer
and the builder. He may as arbitrator have determined between them as to
the performance of that contract, in a manner which assumes that he has
properly performed his own duties.'
849. Engineer or Architect may Owe a Double Duty to His Employer,
viz., as an Arbitrator and as a Professional Man. — It is said to be an anomaly
that while the plaintiff cannot be sued in his character of arbitrator or quasi-
arbitrator, he may yet be liable for a loss occasioned by his want of skill or
want of care in another form of action. The answer simply is that he has
entered into a contract which makes him so. It would be an extraordinary
result if we were obliged to hold that the contract which the owner makes
with the architect for his own protection is neutralized by or inconsistent
with a provision introduced into a different contract between the owner and
the builder for the purpose of preventing or settling disputes as between
themselves. As architect he is in the same position as any other professional
or skilled person, and whether it be in the preparation of plans and specifi-
cation, or the doing of any other professional work for reward, he is respon-
sible if he omits to do it with an ordinary degree of care and skill."
The case is authority for the statement that the owner does sacrifice other
rights and privileges, and it is not clear why he might not sacrifice his con-
tract rights as well. The architect is responsible to his owner for the defect-
ive and inferior manner in which the work had been done, and the inferior
materials employed, which was the result of his negligence and want of care
and skill in the performance of the duty which he had been retained to do,
and which he had undertaken to do.'
The application of the rule seems to have been anticipated in a recent
Illinois case, but it was distinctly decided that he was bound only to exer-
cise so much care and skill as he had bound himself to bestow upon
the work. That it was not a question to be left to the judgment and
caprice of the jury to determine how much care and &kill ought to be exer-
^ Badgley -u. Dickiuson, 13 Ontario App. ble to his employtjr for want of skill orneg-
494 [1887]. ligence in the performance of a judicial
2 Badgley v. Dickinson, 18 Ontario App. act, snch as an estimate of work, by wliich
494 [1887]. It is submitted that tbis may both parties have agreed to be bound,
be true enough, but would he be responsi-
§ 849a.] ENGINEER'S AND ARCHITECT'S EMVLOYMENT. 771
cised by an architect in superintending a building, but that the jury should
decide from the evidence introduced what were the duties undertaken' by
him in his contract of employment and required of him by the contract of
construction/ It was therefore held wrong to instruct the jury that a duty
was imposed upon the architect to make a special inspection of the work to
satisfy himself that the particular work for which the certificate was asked
had been done properly and according to the plans and specifications before
issuing his certificate, no such specific duty being imposed by the terms of
the contract.*
In a case where general averages were incurred in a ship's voyage, and
it became necessary to adjust the losses, and it was agreed to refer the mat-
ter to an average adjuster, it was held that the adjuster was not liable for
want of care in the performance of his duties, as he was acting in the
capacity of an arbitrator between the parties.'
849a. Engineer's or Architect's Knowledge Is the Employer's Knowl-
edge.— To be excused from negligence under Judge Cooley's definition there
is another duty which an employee owes to his employer, and that is a due
and proper notice of those conditions and things which precaution and
Tigilance would prompt him to give. Of all classes of employees there are
few on whom this duty is more incumbent than upon the engineer and
architect. It is one of the chief functions of his office.
It does not, it seems, matter how the engineer obtains his information,
\i he obtains his knowledge while acting for his employer, and afterwards,
while acting further, fails to communicate it, the employer is as fully bound
as if the communication had been made. The possession of knowledge,
however acquired, when acting for the employer, is knowledge to the prin-
cipal/ The agent's obligation is just as strong to disclose knowledge when
derived in a transaction for his own benefit as in a transaction for the
benefit of his employer. What binds the principal is the knowledge pos-
sessed by the agent when he comes to acts, and the principal is bound in
such case whether, it is communicated or not, and without regard to the
mode in which he acquired it.* However, it is usually held that notice .to
an agent before the agency begun or after it is terminated will not affect
the employer, and the notice should be within the scope of his agency or
employment.^
" It is a neglect of duty in an employee not to give notice to the proper
officers of his company of any fact affecting the performance of the duties
of the company to the public occurring within the department under his
supervision.'" It was so held when a conductor failed to report the
^ Vigeant v. Scully, 20 Brad well (111. * Tagg ?j The Tenu. Nafl Bk., 9 Heisk.
App.) 437 [1886]. 479 [1872].
2Tharsis S. & C. Co. ■». Loftus. L. R. 8 M Amer. & Eng. Eucy. Law 421.
C. P. Cas. 1 [1872]; and «e« 69 Iowa 541 ; « Judge Cooley, in Davis v. Detroit &■
2 Dillon's Miinic. Corp'ns, § 237. note. Mil. R. Co., 20 Mich. 105 [1870].
2 Union Bank v. Campbell, 4 Hun 394.
772 ENOINEERINO AND ABCHITECfURAL JURISPRUDENCE, [§ 849a.
incapacity of his engineman/ and when a track-repairer failed to advise his
company of the condition of the road-bed. If he iinows, or by the proper
discharge of his duty should know, of certain defects, his knowledge, or
that which he might have acquired, may be imputed to his employer, the
railroad company."
The same rules, without doubt, would hold with regard to an engi-
neer's knowledge of the road and structures of a corporation. It has been
held that a company was chargeable with knowledge and negligence for fail-
ing to repair, when one of its employees, whose duty it was to observe the
condition of its bridges, or keep them in repair, had actual or even implied
notice of defects therein, or when, by the exercise of reasonable diligence,
the employee would have known of them.^ So it has been held that a
notice to an engineer appointed by a company to supervise and direct work
of an alteration in the structure, supposed by the builders to be an improve-
ment,«is a notice to the company.*
To impute knowledge to a corporation such as would imply a ratifica-
tion or an assent to the acts, admissions, or declarations of an engineer in.
its employ requires something more than the knowledge of the engineer
iihat the work was being done or that it had been done by his orders.^ *
The status of an engineer or architect and his relations to Ijis company
•or employer when he is on the witness stand deserves a passing notice.
"T'he engineer or architect enjoys no such privileges in court as his brother
•attorneys or physicians, though he be employed in a professional capacity.
CJommunications between him and his employer are not, it seems, privileged.
He may be required to testify in regard to matters and communications
between himself and his employer, and may be required to produce letters
he has written to his employer, even though they be of a private and con-
fidential nature." The same is held of a banker ' and of clerks and servants
in general.^ Nor is the architect or engineer regarded as a confidential
•agent of his employer so as to be liable for disclosures in regard to his em-
ployer's intentions to build," or where he is to build,^"' if he has neither
agreed nor been requested to keep such facts secret. It might be a ground
for discharging him if he w^ere a servant in the owner's regular employ.f
1 Davis V. Detroit & Mill. R. Co., mpra. ruff v. Rochester & P. R. Co., 108 N. Y.
2 Porter «. Han. & St. J. R. Co.. 71 Mo. 39; Wolf v. Des Moines & Ft. D. R. Co.,
66 [1879]. 64 Iowa 38U; Rentou «. Mouuier. 7? Cal.
3 46 Iowa 109; semhle. Indiana B. &W. 449.
Rv. Co. «. Adamson (Ind.), 15 N. E. Rep. « Page v. Ward, W. N. 1869-51.
5 [1888]. ' Lloyd v. Freslifield, 2 C. «fe P. 325.
^ Danville Bridge Co. v. Pomroy, 15 Pa. ^ 19 Anier. & Eng. Eucy. Law 155-156.
St. 151 [1850]; «ncZ see O'Brien v Mayor ^ Havens -y. Donahue (Cal.), 43Puc. Rep.
(N. Y. App.). 35 N. E. Rep 323; and 962.
Halsey v. Hobbs (Ky.), 32 S. W. Rep. 415. ^f* Green v. Brooks (Cal.), 22 Pac. Rep.
^ Many cases cited by counsel in Wood- 849; but see Wills v. Abbey, 27 Tex. 203
* See Sec. 555, supra. f See See. 804, supra.
CHAPTER XXXII.
LIABILITY OF ENGINEER OR ARCHITECT WHEN A PUBLIC OFFICER.
850. Position of a Public Officer. — Another capacity in which one is
exempt from liability for the want of care (?) and skill is that of a public
officer. What has been said of judicial or discretionary duties in general
applies equally to pujblic officers when their duties are judicial or discre-
tionary, but there are further considerations in the case of public officers not
present in the employment of the private individual. If public officers were
liable for the want of skill and capacity, or were likely to be called upon to meet
obligations which they assume on behalf of and for, the benefit of the public,
it is safe to say that the full ranks of office-seekers would be greatly reduced.
An officer who has been elected to his position, and who must undertake
every task presented within the scope of his duties, and who has no choice
as to whether he will act or decline to act, and who must serve whoever calls
upon him, is in a different position from a servant or professional man who
solicits employment, and can serve or not, as he will. The former is not
subject to an action at law by an individual unless he has failed to perform
some duty which he owes specially to that individual.*
The irresponsibility of public officers is often a source of aggravation to
a private person, who may be required to stand outside of an iron partition
and pay his taxes, or settle damages, while the county treasurer* or city
engineer ' within the cage smilingly tells him he is "very sorry, but that he
can^t help it, for mistakes will happen." No doubt better service would be
had if public officers were responsible to individuals for their misconduct
and incapacity in office, where such individual has suffered in consequence
thereof; but public policy seems to require that they should be exempt from
civil action, and that they be liable only through public prosecution/
Officers acting in a judicial capacity are exempt from liability for their
act.f They are not liable for injuries to persons when the act is purely min-
isterial if they act within their authority and it is done with due care. How-
ever, the general exemption of an officer from liability for negligence, want
of skill or care, holds only when the officer is acting in a governmental or
political capacity,* and there are many cases which deny the exemption alto-
' See State v. Harris. 89 Ind. 363. . M9 Amer. & Eng. Ency. Law 488.
' See McCarthy v. Bauer, 3 Kaus. 237 * 19 Amer. &Eng. Ency. Law 484, casei
[1865]. cited.
* See Sec. 36, supra, f See Sees. 844 to 849, supra.
773
774 ENOINEERII^Q AND ARCHITECTURAL JURISPRUDENCE. [§ 851,
gether, except when the act complained of is a judicial act or one involving
the discretion of the officer/
851. County Officers and their Liability. — County officers are frequently
held not liable in civil actions for injuries sustained and caused by the neg-
lect, want of care, or lack of skill of the officer. It has been held that the
jiadges and justices of a county court were not liable for injuries to a traveler
from the falling of a bridge constituting a part of the public highway and
under the control of the court, even if they were guilty of gross negligence
in failing to repair the bridge or give proper notice of its condition.'* In
England no action lies against the county surveyor for damages resulting
from the want of repair to a county bridge,' and a county treasurer in levy-
ing taxes has been held not liable for his failure to properly distribute the
taxes between the real property of a mortgagor and the personal property of
the mortgagee.*
852. County and Municipal Officers Compared. — The liability of a munici-
pal officer as distinguished from that of a county officer, has been based upon
the distinction between municipal corporation and county organizations,
described as follows: " Counties are local subdivisions of a state, created by
the sovereign power of the state of its own sovereign will,* without the par-
ticular solicitation, consent, or concurrent action of the people who inhabit
them. The former organization, is asked for,»or at least assented to, by the
people it embraces; the latter is superimposed by a sovereign and paramount
authority. A municipal corporation proper is created mainly for the inter-
est, advantage, and convenience of the special locality and its people. A
county organization is created almost exclusively with a view to the policy of
the state at large for purposes of political organization, and civil adminis-
tration in matters of finance, of education, of provisions for the poor, of mili-.
tary organization, of the means of travel and transport, and especially for the
general administration of justice. With scarcely an exception, all the
powers and functions of the county organizations have a direct and exclu*
sivo reference to the general policy of the state, and are in fact but a branch
of the general administration of that policy." * According to the principles
of the common law, an action for indemnity cannot be maintained against
the county court or against the judges individually for personal liability,
053. Liability of a Public Officer for the Acts of His Assistants. — Pub-
lic officers of the government are not liable for acts of assistants and sub-
ordinates. Persons acting in the capacity of public agents, engaged in the
public service and acting solely for the public benefit, although not strictly
filling the character of officers or agents of the government, are also exempt
from liability. Thus it has been held that overseers of highways intrusted
' 19 Amer. & Eng. Ency. Law 484. * State v. Harris, 89 Ind. 363.
2 Wlieatley v. Mercer, 9 Bush (Ky.), 704 ^ Commissioners of Ham. Co. v. Mighels,
[1873]. 7 Ohio St. 109; Wheatley v. Mercer, 9
»M'Kinnon v, Penson, 8 Exch. 319 Bush (Ky.) 704.
[1853]
§ 854.] ENGINEER' 8 AND ARCHITECT'S EMPLOYMENT. 775
with the supervision of liighways, discharging the duties gnituifcously and
"being personally guilty of no negligence, are not responsible for an injury
sustained by an individual through the negligence of workmen employed
under them/ Trustees and commissioners acting gratuitously for the bene-
fit of the public and intrusted with the conduct of public Avorks are not
liable for an injury occasioned by the negligence or unskillfulness of work-
men and contractor necessarily employed by them in the execution of the
work. "
In keeping with this policy, a surveyor of highways elected by the town
as a public and not a municipal officer, has been held liable in damages for
his wrongful acts only when they are wanton, malicious, or improper acts in
making or repairing highways in his district; " a superintendent of streets
in a city has been held liable for damages resulting from his negligence or
unskillfulness in repairing a sewer, notwithstanding his official capacity ; *
and a building inspector for nonperformance of his duties, which required
him to inspect the buildings and see that they were erected as provided by
ordinance.* A clause in a contract for the construction of a sewer which
guarantees the street superintendent and his sureties immunity from lia-
bility does not render the contract void, as it could not affect persons injured
by the acts of the superintendent.*
854, State Employees Held Liable for Negligence. — A superintendent of
repairs of the state canals has been held personally liable for damages sus-
tained by an individual through the negligence of workman making repairs.
To have an action for his failure to make repairs, it must be shown, however,
that it was the superintendent's duty to make repairs, that he had funds to
make them with, and that he was the officer to make them; but negligence
and mismanagement alone need be shown for misconduct in making repairs.'
The. same has been held of an officer who was charged with the duty of keep-
ing a street in repair. * So, too, when the state canal board let the repairs
of the state canals by contract to a contractor invested with the powers of a
non- judicial officer, the latter was held liable to one who sustained special
damage from a neglect to do his duty and fix a lock-gate that was defective
and out of repair." So if a contractor has been employed by a board of
health to do a particular act, and does it negligently, he may be held liable
for the consequences.'"
1 Meechem on Public Officers, § 594; • Rauer v. Lowe (Cal.), 107 Cal. 329,
Holliday v. St. Leonard, 11 Com. B. (N. 40 Pac. Rep. 337 [1895].
S.) 192. "> Shepherd v. Lincohi, 17 Wend. (N. Y.)
« Hall V. Smith, 2 Bing. 156; Harris v. 250.
Baker, 4 Maule & S. 27; Sutton v. Clarke, 6 « Bennett v. Whitney, 94 N. Y. 802; Rec-
Taunt. 34; Holliday «. St. Leonard, supra. tow. Pierce, 3 Thomp. & C. (N. Y.) 416;
»Rowe V. Addison, 34 N. H. 306, 312, and a bridge, Veo^la v. KAsil, 2 m\\(^.Y .)
and cases cited. 619; cases cited, 19 Amer. & Eng. Eucy.
* Butter V. Ashworth (Cal.), 36 Pac. Rep. Law 495.
922. 9 Robinson v. Chamberlain. 34 N. Y. 389.
* Merritt v. McNally (Mont.), 36 Pac. '» Arthy v. Coleman, 8 E. & B. 1092
Rep. 44. [1857].
776 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 855.
855. Public Officers and their Liability upon Contracts Executed for the
State. — When a man acting in the capacity of a public officer makes contracts
or signs obligations, there is a strong presumption of law that he does not
intend to bind himself personally, nor that the contractor looks to him indi-
vidually to be responsible. The government can act only through its officers
and agents^ and if they were held personally liable on the obligations they
assume for the government, it might be difficult to secure the services of
capable and responsible men. Public policy demands that they be exempt
from liability.^
A public officer must disclose the fact that he acts as an officer or agent,
for if it be not known to the other party he will find himself bound. What
was said of agents under parties, in chapter on Contracts, will hold for
public officers.'^* Where officers of a public or municipal corporation acting
officially enter into a contract under an innocent mistake of law, in which
the other contracting party equally participates, with equal opportunities of
knowledge, neither party at the time looking to personal liability, the offi-
cers are not personally liable ; and the same rule applies to the officers of a
public body which is not a corporation, such as a school district."
If a person sign his own name to a note followed with '* for the select-
men/'* he will be liable personally lipon the obligation.*
An English case shows how strong this presumption is with some jus-
tices. It was held that a public officer is not responsible on any contract he
makes in that capacity, and whenever his contract or agreement is connected
with the subject fairly within the scope of his authority, it shall be intended
to be made officially and in his public character, unless the contrary appeara
by an absolute and unqualified agreement to be personally liable. It was so
held when a contractor had done extra work to preserve a public work not
embraced in his contract, upon the assurance of a railway commissioner
having charge of the work, that he would pay him ; and afterwards on
application to him for pay, he said he would see the engineer in charge and
have the amount put in the estimates, to be paid for by the government ; it
was held that the commissioner was not personally liable, the amount never
having been paid. The court was divided, one side holding that in case of
contracts with public agents the presumption was that the public faith of
the government was relied upon, and that the commissioner in ordering the
work acted within the scope of his authority as a railway commissioner and
did not incur any personal responsibility ; and the other side that the con-
tract was verbal, and it should have been left to a jury as to whether the
commissioner personally contracted and agreed to pay for the work.^
1 Meechem on Public Officers, § 803. ^ ^ndover v. Grafton, 7 N. H. 298.
« Nichols V. Moody, 22 Barb. (N. Y.) ^ Sumner v. Chandler, 3 Pugsley & B.
611. (N. B.)175.
'Humphrey 'o. Jones, 71 Mo. 62 [1879].
* Bee Sees. 29-42, 54, l4i;, and 178-180, supra.
§ 858.] ENQtNEEn'S AND AnCHITECrS EMPLOYMENT. Ill
As stated under the subject of Law of Contracts, if the work is done under
a public statute or by virtue of a public act, and the contractor has equal
means of knowledge as to the ofi&cer^s authority, the officer acting in good
faith will not be responsible if he has exceeded his authority. Individuals
as well as courts are presumed to know and must ascertain the extent of the
•authority of public agents.^
856. Officer or Employee is Responsible for His False Representations. —
If the engineer or architect make false or fraudulent represen-tations in re-
;spect to matters or work upon which he is engaged, he will be liable to
parties who are misled by such representations, and suffer in consequence
thereof whether the engineer be acting in the capacity of a professional
engineer ^ or a public officer.^ It was so held when an architect ordered
-stones to complete a church the erection of which he was superintending.
To get them, he represented or pretended that he was authorized to order
the stones, and he was required to pay for them, notwithstanding the fact
that they were used in the church edifice. Whether he made the represen-
tations with intent to deceive, or knowing he had no authority, or under the
bona fide belief that he had authority, in any case he was held liable."
857. Engineer's and Architect's Liability when Holding Office of Public
Trust. — In the capacity of county surveyors, state or city engineers, city or
government architects and commissioners, their relations to their work and
to their patrons are different from those of a professional engineer or agent.
When acting judicially or exercising discretionary powers, the public officer
should be afforded the same protection as any other person, and he is so
protected.^ Even when his duties are purely ministerial, the requirements
of a public officer are not so exacting as are those of a professional man.
While the latter is responsible for an ordinary amount of skill and capa-
city for the work he solicits, the former, being elected or appointed, is not
held upon an implied undertaking that he does possess a certain amount of
skill and that he will exercise it. If it were required that such officer,
elected or appointed, should be competent and that the incumbent should
possess the requisite skill, many public offices would "go a begging, and the
government service might be seriously crippled." Public policy is said to
recommend that they should be exempt.
858. A City Engineer's Liability for Mistakes. — One of the most
interesting and instructive cases reported in the books was one of a
practical surveyor and city engineer who surveyed a lot for the owner at
the latter's request, and made a mistake so that the owner's building
was erected 2.2 feet upon his neighbor's lot. It was shown that the de-
fendant was a surveyor and civil engineer, and that by ordinance of the city
1 19 Amer. & Eng Ency. Law 500-501. ^Rj^nf^ell v. Trimen, 18 C. B. 786 [1856].
2Randell v. Trimer, 18 C. B. 786 [1856]. *East River Gas Light Co. v. Donnelly.
^Culver V. Avery. 7 Wend. (N. Y.) 380 ; 25 Huu 614; 19 Amer. & Eug. Eucy. Law
Newman v. Sylvester, 42 lud. 106. 484
778 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 858.
the city engineer was required to maKe surveys of lots within, the city limits
for private individuals when requested. The ordinance fixed the amount
of fees he should receive from persons for whom the survey was made. The
surveyor introduced evidence tending to show that he used due care and
exercised a reasonable degree of skill in making the survey, and in fixing
the boundaries to the lot, and that he believed the survey to be correct at
the time it was made.
The case was tried before a jury, and the judge was requested but re-
fused to charge: ^'That if the jury believed from the evidence that the
defendant as city engineer or surveyor used due care and exercised ?., rea-
sonable amount of skill in locating the boundary line to plaintiff's lot, the
latter was not entitled to recover against the defendant surveyor, although
the boundary lines were incorrectly established." The jury found for the
plaintiff, and the surveyor excepted and moved for a new trial.
In delivering its opinion the higher court said : '' An ordinance of the
city required the city engineer to survey and mark the boundaries of lots
within the city when called upon so to do by private individuals, and pre-
scribed his fees therefor ($2.50). He had no discretion to i-efuse when
called upon to perform such services, but this did not constitute him an
agent of the city for that purpose. Neither the city not any private person
was bound by the surveys he might make when acting at the request of an
individual. His report would not be conclusive as to the boundaries of the
lot. His certificate could not be given in evidence as settling the boundary.
He did not do it for the city. When the corporation makes public improve-
ments and he acts under its direction, then he is its agent, and his act is
the act of the city, and if any person is damaged thereby, it, and not he, is
liable."^
Whether he acted as city engineer or as a professional surveyor, he was
not bound to the exercise of more than reasonable care and skill. If he did
the work in the former capacity, he was liable for negligence or fraud only;
if in the latter, then he would not only be liable for negligence or fraud, but
for want of skill. In neither capacity does he insure the correctness of his
work. The law exacts that of no man. A man exercising the functions of
an office must discharge his duties carefully, diligently, and honesty, and if
he does so, he will not be liable for damages; but when a man holds himself
out to the public as a professional man he engages to do more. He thereby
agrees with those who employ him to do the work, not only carefully, dili-
gently, and honestly, but skillfully. Absolute correctness is not to be the-
test of the amount of skill the law requires. A reasonable amount of skill
is all he is bound to bring to the discharge of his duties. Upon the trial of
the case, the manner in which the survey was made was a material question,
and it was a question to be determined by the jury. They were to deter-
' McCarthy v, Bauer, 3 Kans. 237 [1865] ; semble Sieveiss v. San Francisco (Cal.), 47.'
Pac. Rep. 687.
§859A.i ENGINEER'S AND ABGHITECT'8 EMPLOYMENT. 779
mine the amcfunt of care and skill he did exercise in performing the work,
but the court was to determine what amount would absolve him from liabil-
ity in case he made a mistake. There having been testimony on both sides
as to the manner in which the work was done, it was necessary that the jury
be informed of the rule of the law in order to arrive at a correct conclusion.*
859. Commissioners of Public Works and Their Liability. — Commissioners
appointed or employed for a special and single object, in whose employment
there is no enduring element, nor designed to be, and whose duties, when
completed (although years may be required for their performance), termi-
nate the employment, are not officers in the sense in which that term is used
in the constitution of the State of Illinois." Clerks of commissioners intrusted
with the conduct of public works, are not liable in damages for an injury
occasioned by the negligence of artificers employed under their authority.'
A public officer has been described as one who occupies an office that is
parcel of the administration of the goverment, civil or military, or is
itself created directly by the law-making power. The chief engineer of
a quasi public corporation, like a railroad company, is not a public
officer.*
859a. Situation of Engineer or Architect in Injunction and Mandamus
Proceedings — Liability for Contempt.* — A trying position in which an engi-
neer is sometimes placed, and one in which some knowledge of law will assist
him, is where proceedings at law are threatened, or an injunction is sought,
when by prompt and decisive action or by shrewd and skillful application
of his legal knowledge, he may outwit the prosecutor and accomplish the
object which others seek to prevent. A structure once erected, an equity
judge will seldom decree its removal or destruction. Structures once erected,
or whose definite location, character, and purposes have not been made
known, or proposed works which cannot be proved nuisances, because
their purpose and character is unknown, are comparatively safe from being
enjoined. Under the protection of these and other safeguards the legal
engineer is frequently able to defeat opposition to the plans of his employer."
However, the fact that an alleged unlawful structure was completed pending
an action to enjoin its construction and maintenance does not affect the
right of the court to enjoin its maintenance.'
Injunctions sometimes issue that may be evaded on technicalities, the
recognition and prompt advantage of which may be taken by an engineer
1 McCarthy ij. Bauer, 3 Kans. 237 [1865]; The cases of Dickinson v. The People,
see also Waller v. Dubuque, 69 Iowa 541; etc., 17 111. 191; and The People v. liidg-
Alcorn V. Philadelplua, 44 Pa. St. 348 \qj et al., 2>\1\\.Q^, cited and explained.
[1863]; 2 Dillon's Munic. Corp'ns, g 237 "Hall v. Smith, 2 Bing. 156 [1824].
noU, 859, 910, 978; Rowe v. Addison, 34 N. ^Eliason «. Coleman, 86 N. C. 23o [1882],
H. 306, 312; Norwell v. Wright. 3 Allen » 10 Amer. & Eng. Ency. Law 833-7.
(Mass.) 166; Chilly's Contracts [9th Amer. 'Holmes d. Calhoun County (Iowa), 66
ed.], p. 598; Story's Agency 328. N. W. Rep. 145.
3Bunn V. The People, 45 111. 397 [1S67];
*For cases of injunctions, see Sees. 326, 438, 556, 689, 705-9, and 747, sw^m.
780 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 859 A..
versed in law. If the injunction cannot be defeated or avoided, then it-
becomes his duty to employ other tactics. AVhether he assumes to nego-
tiate, to fight, or to beg, he should know what attitude to take, on what
ground to stand, and how to maintain it. These questions and duties may
properly belong to other officials of the company to determine, but frequently
the engineer is the only representative present upon the works. Large cor-
porations whose works extend over a large territory, who offices and officers
may be many hundred miles from the arena of trouble, cannot decide such
difficulties with the clearness and understanding of the engineer. They
have to learn from him the whole story, the condition of the work, the
injury consequent to delay, and then decide on as little knowledge perhaps
as he should possess, if qualified in the principles of engineering juris-
prudence.
The subject of injunctions and mandamus is too deep to undertake to
present even in the briefest manner, and the reader must be content with a
passing notice of the subject. A fair understanding of what precedes, and
some collateral reading upon the law of real estate, including adverse pos-
session, easements, prescription, and the law of torts will put an engineer or
architect in the possession of knowledge that will certainly greatly assist him
in the preservation of his employer's property, and in carrying out his
schemes and projects in spite of opposition and competition.
Notice of the injunction or order must be brought to the knowledge of
the party enjoined.* It does not matter how the information was acquired,
if he knows an injunction has issued and what it contains, he must answer
for any violation of it as if the writ had been regularly served upon him by
an officer of the court.* His knowledge must be positive and something
more than heresay, and some cases hold that there must be a personal ser-
vice of the order before one can be charged with contempt for not obeying
it.'^ A copy of an injunction left at a person's residence ' is a notice to him,
and a service on a company at its office is one to its directors,* and a service
on the mayor of a city has been held a notice to all the officers and members
of the city government who know about it,* including agents and employees.*
If officers of a company conceal themselves to avoid service, a service upon
one who acts as their attorney will, it seems, be sufficient.'' It has been held
that a notice could be sent by telegraph, if it stated clearly and plainly
what the party must refrain from doing.*
An injunction issued by a court of competent jurisdiction must be fairly
and honestly obeyed it cannot be evaded by subterfuges or tricks." If the
^ 10 Amer. & Eng Ency. Law 1011. * Wellesley «. Mornington, 11 Beav.
2 McCauley v. Pahner, 40 Hun (N. Y.) 181.
88; Sanford v. Sanford, 40 Hun (N. Y.) ' Golden Gate Min. Co. v. Yuba Co.
540. Super. Ct., 65 Cal. 187.
3 Morris v. Bradford, 19 Ga. 527. « In re Bryant, 4 Ch. D. 98; Cape May,
4 Brown v. Pac, etc., R. Co.. 5 Blatchf. etc., R. Co. v. Johnson, 35 N. J. Eq 422.
(U. S.) 525. " Wilcox Silv. P. Co. v. Scliimmel 5^
« People V. Sturtevant, 9 N. Y. 263. Mich. 524.
§ 859a.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 781
court has not jurisdiction, then one who disobeys it will not be punished for
contempt/ If the court has not authority in the sense of being in excess of
its powers as limited by the constitution or defined by law, then one is not
subject to contempt for disobeying it.' The erection of a bridge under a
special act of Congress in disobedience to an injunction was held not a con-
tempt.' Ignoring an injunction to prevent the infringment of a patent which
is declared invalid on appeal has been held not contempt/ If the order of
the court is merely erroneous, some courts hold it must be obeyed, or the one
who violiites it may be punished.*
If the law plainly requires a public officer to perform a duty and he is
not exceeding or abusing his powers, but is acting fairly within them, he
should discharge his duty as prescribed by law, although a court issues a
writ restraining him from its performance." *
The fact that a party who has disobeyed an order of the court did so
under the belief or under advice that the order did not forbid the act, will
not excuse him from being punished for contempt.' Advice of counsel
that an injunction is void and may be disregarded will not protect one nor
justify a disobedience of an order of the court; yet if the person in con-
tempt has not been headstrong and disrespectful to the court, it will be a
factor in mitigating the punishment or lessening the damages incurred.*
Whether or not a person has committed contempt does not depend upon
his intention, but upon the act done. Therefore laboring men, not familiar
with legal proceedings, were guilty of a constructive contempt, who did not
at once fully obey an injunction served in the absence of their employer,
because they thought the writ meant they should appear and answer with
the employer, though they desired to respect the order of the court and
partly obeyed it.'
An interesting case is reported where a company was enjoined, at the
suit of a water company, from allowing any deleterious substances to escape
from its factory into the river. The company thereupon built a reservoir
on the bank of the river, which it negligently and carelessly permitted to
break and discharge its contents, it was held a contempt punishable by fine,
or by fine and imprisonment, although there was no willful purpose to
violate the injunction." A man is not guilty of a constructive contempt
^ 3 ximer. & Eng. Ency. Law 788. see People v. Edson, 53 N, Y. Super. Ct.
2 Keenau v. People, 58 111. App. 241. 53, mayor appointing superintendent of
2 State of Penna. v. Wheeling Bdge. public works : and. Bowery Nat. Bk. v.
Co., 13 How. (U. S.) 518, 18 How. (U. S.) Mayor. 63 N. Y. 336 [1875].
421, see other cases, 10 Amer. & Eng. Ency. ' Atlantic Powder Co., 9 Fed. Rep. 316.
Law 842-3. * 10 Amer. & Eng. Ency. Law 1011-
4 Worden v. Searls. 121 U. S. 14. 1012.
^Keenan i). People, 58 111. App. 241; » Shirk v. Cox (Ind. Sup.), 40 N. E.
Walton V. Develing, 61 111. 201 [1871]; Rep. 750.
hut see In re McCain (S. D.), 68 N. W. ^" Indianapolis Water Co. ■». American
Rep. 163. Strawboard Co. (C. C), 75 Fed. Rep. 973*
« Walton V, Develing, 61 111. 301 [1871];
* See Sec. 438, supra.
782 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 859 A.
for disobeying an injuction prohibiting work on a structure when the order
was served on a legal holiday, more than twelve miles away from the works,
and that next day he drove to it and ordered his men to quit work, as
required. *
A person guilty of contempt has the privilege of purging it. A declara-
tion that no disobedience or disrespect was intended and, that he acted
in good faith, usually is sufficient, if he can satisfy the court, under close
questioning, of the truth of his declaration and sincerity of his intentions.
Some courts hold that the offender cannot be fined or punished without
giving him a chance to explain. A mere disavowal of an intentional wrong,
without an expression of regret, will not purge it. If the person shows his
inability to perform, it may purge the contempt, but not inability to pay a
fine.* Public officers who have not obeyed an injunction, and have been
convicted of contempt, which conviction stands unreserved, must, it seems,
stand the expense of the contempt proceedings. City aldermen cannot
make the city liable for such costs.''
^ Shirk V. Cox (Ind. Sup.), 40 N. E. 'West v. Utica (Sup.), 24 N. Y. Supp.
Eep. 750. 1075.
« 3 Amer. & Eng. Ency. Law 796-799.
CHAPTER XXXIII.
COMPENSATION OF ENGINEERS AND ARCHITECTS.
PROTECTION^ OF LIEIf AND OTHER LAWS — FREE PASSES.
860. Architect's or Engineer's Compensation.* — In connection with the
employment of an engineer or architect the question naturally follows as to
his compensation and the means he may have of securing it. His com-
pensation will, of course, be the amount agreed upon in his contract of
employment. It is usual to receive a percentage of the cost of the works
or structure, varying from 3 per cent, on very large works to 15 per cent,
on small jobs. Engineers are frequently employed on an annual salary of
from $1000 to $10,000, depending upon the reputation of the engineer and
the wealth of the corporation. If no price is agreed upon for services, then
the employee may recover what his services are reasonably worth, which
may be a question for a jury to determine from evidence produced as to
what is usually charged for such services, or the amount it is the custom to
receive on such works.
Resort to the courts is the proper means of enforcing payment for ser-
vices, and the action may be of contract, for work, labor, and materials, or
on a quantum valehat, or on the common counts.f
To entitle an architect to recover for plans which he is employed to
make, he must show their delivery, or a tender of them.^ An architect
employed to prepare plans and specifications of a building, and furnish
an estimate of the probable cost, is not, upon submitting the same, entitled
to his fees unless the building can be erected at a cost reasonably approxi-
mating that stated in such estimate."
861. Rights of Engineers and Architects to a Lien for Services. —
Mechanics, laborers, and materialmen have received the special protection
of the law in the shape of liens and ^* stockholders' liability acts " to secure
payment for their services and materials. Much litigation has been engaged
in to determine whether an engineer and architect were entited to protec-
tion under these acts. The courts have arrived at different decisions,
•depending frequently upon the judges' own notions of an architect's or engi-
» Wandelt v. Cohen (Com. PI.), 36 N. Y. ' Feltham v. Sharp (Ga.), 25 S. E. Rep.
Supp. 811. 619.
* See Sec. 896, infra. f See Sees. 811-814, supra.
783
784 ENGINEERING AND AUCHITECTURAL JURISPRUDENCE. [§ 862.
neer's duties, and the character of his work, and at other times upon the-
interpretation and construction of the act. It is impossible to reconcile the
cases and to make any general statement of the law that shall cover all cases.
It is well established that the acts are not generally intended for the protec-
tion of so-called professional men. An act for the protection of employees^
operators, and laborers of a company has been held not to include the
Buperintendent and attorneys of the company,^ nor can an agent, superin-
tendent, general manager, or general manager and bookkeeper be embraced
under any of the terms laborer, servant, or apprentice.^
It is usually held that a general enactment for the protection of laborers,
mechanics, apprentices, and materialmen will not extend to an architect wha
simply prepares plans and specifications. The decisions are nearly, if not
quite, uniform upon this point, except in those states whose statutes
expressly name architects as being within its protection.' To same effect, a
plan of a house, or a model, or a mold, or a piece of work, do not enter into
a structure, and cannot be regarded as within a statute giving liens to mate-
rialmen and laborers; nor can a lien be had for tools used in the construction
of the structure,* nor for labor not bestowed upon the works. Therefore, it
was held that a cook, who cooked for workmen, even though the cooking was-
done upon the grounds as the work progressed, was not entitled to a lien on
a water- works reservoir.* A contrary rule was held in Minnesota, where a
cook was held entitled to a lien on logs, he having cooked in a camp for
men actually and directly engaged in cutting, hauling, and banking logs, and
the blacksmith who shoed horses, repaired, and sharpened tools for the men
was also held entitled to a lien on the logs gotten out." Other cases hold
that to create a lien the materials must be used for erecting, altering, or
repairing the structure, and must be so applied as to constitute a part of it.''
A mining engineer who has rendered professional services only is not
entitled to a lien under the statute of Utah.®
862. If Architect or Engineer Supervises and Directs Work He may
Have a Lien in Some States. — It is well settled in Pennsylvania, New York,.
New Jersey, Minnesota, and Illinois that when the architect directs and over-
sees the erection of a structui'e in accordance with the plans and specifica-
tions, then he does bring himself within the statute, and is entitled to its
benefits for so much as the superintending is worth."
^ People V. Remington, 45 Hun 338 semble. Sweet & Carpenter v. James, 2 R.
[1887] I. 270, 288; Phillips v. Wright, 5 Sandf.
2 Small House v. Ky. & M. G. Co.. 2 342.
Mout. 443 [1876]; Gettv v. Ames (Oreg.), 6 McCormick v. Los Angeles Co., 40 CaL
48 Pac. Rep. 855 [1897]; People v. Rem- 185
ingtou, supra, and cases cited; McDonald • Breault v. Archambault (Minn.), 67 N-
«. Charlestown, etc , R. Co. (Tenn.), 24 S. W. Rep. 348.
W. Rep. 253; Addison v. Pac. Coast Mill. '' Lambard v. Pike, 33 Me. 141.
Co. (C. C), 79 Fed. Rep. 459. s Mining Co v. Cullins, 104 U S. 177.
» Price V. Kirk, 90 Pa. St. 47 [1879]; » Bank v. Gries 35 Pa. St. 423; Railroad
Foushee v. Grigsley, 12 Bush 75 [1876]. Co. v. Leufner, 84 Pa. St. 168; Hubert v.
* Ames V. Dyer, 41 Me. 397 [1856]; Aitken, 15 Daly (N. Y.) 237; Stryker «.
§ 862.] ENGINEER'S AND ARCHITECTS EMPLOYMENT. 785
It is submitted that this is no more than just, that even thougli a person
be denominated an architect in the contract, if he performs the duties of a
mechanic, foreman, inspector, or superintendent, he should be entitled to a
lien the same as any other employee of the same class. If his duties re-
quire him not only to draw plans, but to explain, direct, and lay out the
work, then he is performing functions that ordinarily belong to a master
mechanic or boss carpenter. It is as essential to the proper construction of
la building as is the purely mechanical part; it is simply of a higher order,
and the fact that it requires some architectural skill should not impair his
Tight to a lien/
It may be noted, however, that the architect recovers as a mechanic and
for mechanical work, arid not for general professional duties as an architect.
The architect cannot claim a lien for charges and fees alone; he must show
work done, and the kind of work should be set forth distinctly. A mere
naked architect who draws plans in anticipation of building, without being;
an operative mechanic, is not within an act that provides a lien for work
"done for and about the erection of a building."' One who has for more
than five years been a student of architecture and building construction,
and has planned, worked on, and superintended the construction of build-
ings of different kinds, inspecting the work of construction in all its
branches, has been held a *' practical building mechanic," within a city
charter prescribing the qualifications of inspectors of buildings.'
A similar rule was adopted with reference to a civil engineer, which was
reversed by the same court that decided the Pennsylvania case, though at an
earlier date. It was held that laborers and workmen were synonyms; that
■an engineer employed on construction was a workman; that his work was
physical as well as mental. He makes diagrams and plans, ascertains and
marks the lines, directs and superintends the work. The court further ex-
pressed the opinion that the engineer's labor was skilled work, and so was
that of the bridge-builder, and whether he was the master who simply
directed or the man who used the tools, that it could not be doubted that
he was within the statute; that the object of the legislature was to give
those whose skill and labor created the structure a special hold upon it for
compensation.*
This decision was reversed and quite a contrary opinion rendered. The
court said: "The words laborer or workman used in the act cannot ordi-
narily be understood to embrace persons engaged in a learned profession,
Cassidy, 76 K Y. 50; Rim v. Illectric P. « Price t). Kirk. 90 Pa. St^ 47 [1879]:
Co (Sup.), 38 K Y. Supp. 345; Mutual Rush ?>. Able. 90 Pa. St. 153; Railroad Co.
Benefit L. Ins. Co. -» Rowand, 26 N. J. «. Leufner. 84 Pa. St. 168.
Law 389; Kni^lit -». Norris, 13 Minn. 473; ' People^). Board of Aldermen of Buffalo
Phillips on Mechanics' Liens ('2d ed.), (Sup.), 42 N". Y. Supp. 545.
§158; and see 1 Oreg. 169; 11 Nev. 304; * Lenfner «. Pa. & Del. Ry., 11 Phila.
anci other cases cited, zn/ra. (Pa.) 548 [1876]; accord, Stryker «. Cas-
' Bank 2). Gries, 35 Pa. St. 423(11 Casey) sidy, 76 N. Y. 50 ; sembU, Conant ®. Va«
[18601. Schaick. 24 Barb. 99.
786 BNOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 862.
l3ut rather such as gain their livelihood by manual toil. When we speak of
the working classes we certainly do not intend to include therein persons
like civil engineers, the value of whose services rests rather in their scientific
than their physical ability. We thereby intend those who are engaged, not
in head, but in hand work, who depend upon such hand work for their
living. In all the statutes of this kind the intent has been to protect a
class of persons who are wholly dependent upon their manual toil for ex-
istence and who cannot protect themselves. It is true in one sense the
engineer is a laborer, but so is the lawyer and doctor, the banker, and corpora-
tion officer, yet no statistician has ever been known to include them among
the laboring classes. We cannot, therefore, even to save a meritorious claim,
undertake to make a new classification which must necessarily defeat the
statutory intent." * In line with the same argument it has been held that a
professional chemist, employed to analyze metals, is not entitled to a prefer-
ence under a statute giving preferences to laborers, even though the work
could have been done by a laborer.'
These two decisions seem to have been made largely upon the personal
(individual) ideas of the judges who rendered them. It is difficult to see
liow an engineer can better protect himself than a materialman or a laborer.
And the appellate judge's knowledge of the duties of an assistant engineer
on location of a railroad must have been very limited when he compares the
manual labor of an engineer in the field with that of a lawyer, doctor,
banker, and corporation officer. This case was an earlier decision than the
one allowing an architect a lien for his services superintending, and, as all
are Pennsylvania cases, it can hardly be said that the law is settled. It is
impossible to distinguish between an architect superintending a house and
an engineer in charge of construction of a bridge or other structure. The
duties of both are the same. Both are required to explain the plans and
drawings, to give lines and levels, lay out work, and give it general super-
intendence. It is, therefore, contended that if the engineer had only in-
cluded in his claim for a lien his charges for superintendence and active
field duties on the line, he should have been given the benefits of the
statute.
This belief is further strengthened by two recent cases — one where an
architect had been engaged to prepare the plans and superintend the erection
of a building, which was abandoned when only partially completed, and the
court held that the architect could not be allowed a lien upon the uncon-
structed part of the building, for it was the architect's services rendered
during the construction of the building which brought him within the lien
law;^ and another case under a statute providing that when any person
1 Penna. «fe Del. R. R. Co. v. Leufner, 84 5 Pa. Dist. Rep. 623.
Pa. St. 168 [1877] ; Wentroth's Appeal, 1 ^ judge Cullcn iu Rfm v. Electric Power
IJorris 469. Co. of S I. (Sup.), 38 N. Y. Supp. 345
8 CuUum v. Lickdale Iron Co. (Com. PI.), [1894], 3 App. Div. (N. Y.) 305 [1896].
§ 862.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 787
shall intrust to any mechanic, artisan, or tradesman materials to construct,
alter, or repair any article of valuie, or any article of value to be altered or
repaired, the meckanic, artisan, or tradesman shall have a lien on such
articles, it was held that a civil engineer who makes field notes, maps,
charts, and drawings for a corporation, while employed by it, on books and
papers furnished by it for that purpose, is entitled to a lien thereon and the
possession thereof until paid for his services.*
It is impossible to say with any certainty what the law is in any state,
for the mechanic lien laws are subject to frequent changes; and the right to
a mechanic's lien being purely statutory, the value of a decision is lessened
by every change. In Illinois and New York an architect or engineer has
been held entitled to a lien for superintending;'' and an architect has been
held entitled to the protection of the lien laws in Alabama," for " work or labor
upon a building or improvement on land ; " in Ohio * and in Iowa for plans,
specifications, and superintendence; ^ in New Jersey for plans and specifica-
tions and superintendence at 2^ per cent; ' in Minnesota at 5 per cent; ^ also
in California; ® in Louisiana;* and in Canada.*"
Maine, Missouri, Kentucky, and Tennessee have refused to recognize the
right of architects to a lien under a law passed to protect mechanics and
workmen, even though they do superintend the erection of the building."
If the contract provide that all payments shall be made on certificates of
the architects, who were employed to supervise the construction at 5 per
cent, of its cost, and that final settlement should be made on their certificate,
it was held that, as the last act required of the architect was to give a final
certificate, his time for filing a lien for services did not begin to run until
the performance of such act."
The argument that by the constitution "all men are born free and in-
dependent, and have certain indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing, and pro-
tecting property and reputation, and of pursuing their own happiness," does
not seem to have had much weight in an attack against lien laws which
protect only a certain class of employees."
* Amazon Irrigating Co. v. Briesen W. Rep. 717; Gardner «. Leek (Minn.), 54
(Kans. App.), 41 Pac. Rep. 1116. N. W. Rep. 746.
2 Taylor v. Gilsdorf, 74 111. 359; Rim v. » Pac. Mut. Life Ins. Co. v. Fisher (Cal.),
Electric P. Co., 3 App. Div. (N. Y.) 305 42 Pac. Rep. 154.
[1896]; Stryker v. Cassidy. 76 N. Y. 50; » Mulligan v. Mulligan, 18 La. Ann. 20.
Gurney V. Atlantic, etc., R. Co., 58 N. Y. '^ Arnoldi v. Gourin, 22 Grant's Cli.
358; Hubert v. Aitkeu. 15 Daly 237; but (Ont.) 314.
see Ericsson v. Brown, 38 Barb. 891. '^ Ames v. Dyer, 41 Me 397; Raeder v.
* Hughes «. Forgerson, 96 Ala. 346. Bensberg, 6 Mo. App, 445; Fousliee t>.
* Phoenix Fur. Co. v. Hotel Co. (C. C), Griffsby, 12 Bush 76; Thompson v. Baxter
60 Fed. Rep. 683. (Tenn.), 21 S. W. Rep. 668; and see Adler
* Parsons v. Brown (Iowa), 66 N. W. v. World's P. Exp. Co. (111.), 18 N. E.
Rep. 880. Rep. 809 [1888].
" Mutual V. Rowand, 26 N. J. Eq. 389. '^ Beiitley v. Adams (Wis.), 66 N. W.
' Knight V. Norris, 13 Minn. 473; and Rep. 505.
966 Waugansteia t. Jones (Minn.), 63 N. '' Hoffa v. Person, 1 Pa. Super. Ct. 357.
788 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 863.
863. Engineers' or Architects' Eights under the Stockholders' Liability
Acts. — The law is in about the same condition with regard to the constitu-
tional and statutory provisions making stockholders liable for the labor debts
•of the corporation. There are many cases that hold that an engineer is not a
laborer within the meaning of these acts/ while others have maintained a
contrary view.'
It is believed that the cases may generally be distinguished in the same
way as under the lien acts. It is certain that to bring one's self within the
meaning of the statute they must strictly answer the description employed.
If the statute provides for the protection of the laborers and operatives of a
company or their laborers, servants, and apprentices, the engineer must come
well within the meaning of one of the classes mentioned. It was therefore
lield that a consulting engineer was not within the meaning of tlie act, the
court adding that it was the policy of the legislature to protect those only
who are the least able to protect themselves, and who earn their living by
manual labor for a small compensation, and not by professional services.*
This, it is submitted, is peculiar law, which determines the rights of a citizen
by the question whether he lives from hand to mouth or whether he has a
competence ; and this it is believed cannot be made the test. The test should
be whether the employee literally brings himself within the statute.
A consulting engineer,' a contractor,* and officers of the company, as the
chief engineer and the assistant chief engineer; ^ persons who have a proper
■and distinctive appellation, such as officers and agents of the company, are not
in the general acceptation of the term servants ; but an engineer who is em-
^ployed in the ordinary field operations of surveying, who is subject to the
directions and control of the officers and sometimes the servants of the com-
pany, is a servant in its strictest or most ordinary sense. It was therefore
held when a civil engineer sought to recover from a shareholder of a bank-
rupt company, for services of himself and a rodman in his employ, that he
could recover. The judge said, " I can see no middle ground between re-
stricting the statute to day-laborers and applying it to all persons employed
in the service of the company who have not a different and distinctive
appellation, such as officers and agents. The engineer, the master mechanic,
the conductor, is as fully entitled to its benefits as the man who shovels
gravel. The latter is no more nor less a servant of the company than either
of the former." '
Ten years later it was decided that a person employed by a manufactur-
ing corporation as its civil engineer and traveling agent at a fixed salary was
' Brockway d. Innes, 39 Mich 47 [18801; Williamson ®. Wadsworth, 49 Barb. 296;
Boutwell V. TownseDd, 37 Barb. 205; Bailey v. Banker, 3 Hill 188.
Hovey«. Ten Broeck, 3 Roberts 316; Coffin ' Ericsson v. Brown, 38 Barb. 390.
V. Reynolds. 37 N. Y. 640; Aiken v. Was- < Aiken «. Wasson, 24 K Y. 482.
{=on, 24 N. Y. 482; Fish v. Dodge, 38 Barb. ^ Brockway v. Innes, 39 Mich. 47 [18^0].
168; 17 Amer. L. Reg. 102. « Conant «. Van Schaick, 24 Barb. 87
2 Gonant v Van Schaick, 24 Barb. 87; [1857]; see Bailey v. Banker, 3 Hill 188.
Richardson u. Abendroth, 43 Barb. 162;
§ 864.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 789
^ servant of the corporation within the meaning of the act. This case was
determined upon the legal meaning of the word servant used in the act as
distinguished from an independent contractor or an officer. A servant in
law is one who acts in subordination to others, under whose orders, directions,
^nd control he acts for the time being. The one commands, the other obeys;
iihe one is proprietor and superior, the other a mere helper. The party here
was employed as engineer and traveling agent at a fixed salary, he was in
every act relating to his employment in subjection to the company, bound as
to the time and manner of performing his duties, to follow their directions
^nd implicitly obey their commands. He was, in this capacity, their subordi-
nate helper,and therefore a servant within the act.' On this line of reason-
ing it must follow that a contractor for construction of a structure would
not be entitled to the protection of the statute, and the cases are to that
effect."
This latter view would seem to be sound law, and the only test that
avoids complications and difficult discriminations. In conclusion, it may be
said that a general statement that an architect or engineer is or is not entitled
to a lien or to an action for services under the stockholders' liability act,
have been such as will bring him within the act, and not by what name or
cannot be made. It must depend in each case on whether the duties of the
claimant title he has been designated.
864. Compensation for Injuries Received while Riding on a Free Pass. —
Engineers and architects in the employ of railroad companies or of com-
panies having intimate business relations with the railroads often travel free of
charge, or, in the popular phraseology, "upon a pass." These passes usually
have printed upon them a stipulation or reservation similar to the following:
*'The person or persons using this pass hereby voluntarily assumes all risk of
accident, and expressly agrees that the company shall not be liable under any
circumstances, whether by negligence of their agents or otherwise, and that
in the use of this ticket he will not consider the company as a common car-
rier or liable to him as such." As explained under the subject of Contracts,
such an agreement is against public policy and void when it requires the
person accepting and using the free pass to release the carrier from injury
to his person or property by reason of the negligence or willful wrongdoing
of its employees." * Nor can such a stipulation be made a condition in the
engineer's contract of employment.* In spite of such releases, therefore, it
has been held frequently that the party riding upon such pass could
recover.^
* Williamson v. Wadsworth, 49 Barb. ^Accord, Lake Shore, etc., R. Co. o.
•294 [1867]; liicbardson v. Abendroth. 43 Spangler, 44 Ohio St. 471 [1887] ; Roe-
Barb. 162. suer 1). Herman, 3 Fed. Rep. 782; Kansas
« Aiken v. Wasson, 24 N. Y. 482 [1862]; Pac. R. Co. v. Peavey, 29 Kan. 169; 3
Peck V. Miller, 39 Mich. 594 [1880]. Thomp. on Negce. 1025; 1 Cent. L. J. 485.
» 9 Amer. & Eng. Ency. Law 913, 914. ^ Porter i). N. Y. L. Erie & W. li. Co.,
* See Chap. I, Sec. 86, supra.
790 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 865.
There are many decisions to the contrary, which maintain that an agree-
ment to assume the risk of injuries to one^s person from negligence of tho
company's servants, is valid if it is made in consideration of the free car-
riage,^ or of employment,' and that if a passenger receives a free pass or
ticket with an indorsement of such a contract upon it he will be bound by
its terms.*
The fact that when injured he was riding in a parlor or sleeping car, on
a ticket entitling him to. that privilege and for which he paid cash, will not
change the relation between him and the railroad company, nor make him a-
passenger for hire.*
865. Passes are Usually Given for Some Consideration. — The point is
that passes are not, at the present day, granted gratuitously to people.
When given to employees they are part of the consideration of employment,
and an important one to an engineer, whose duties call him to all points of
the road. If he were not provided with free transportation his salary or
compensation would have to be increased materially. The same view has-
been taken of a cattleman riding upon a drover's pass, he being regarded as;
a paying passenger.* The same might be held of many others who ride upon
free passes which are indorsed with cast-iron [glass] stipulations calculated
to avoid all and every liability for injuries from whatever cause; such as;
attorneys, granted in part consideration of services; editors and other at-
taches of newspapers, in consideration of advertising and good will ; emigrants,
and cattlemen, in consideration of getting their shipments; and, perhaps,,
even office-holders and politicians, in consideration of their looking after the-
interests of the carrier in Congress and the legislature — lobbying, log-rolling,,
and their general good will.
The giving of the pass alone is pretty good evidence that it was for a-
consideration. If otherwise, it is a breach of duty on the part of the officer*
of the company to so use property intrusted to their care as to cause loss to-
its stockholders. Gratuitous donation of a thing of value for nothing what-
ever in return, is not prudent management, to say the least.
866. Free Carriage, without any Agreement — "Waiving Damages for Gross
Negligence. — It is perfectly well settled that the mere fact that
59 Hun 177 [1891]: 9 Amer. & Eng. Ency. J. Law 513: Welles «. New York Cent.
Law 914; Griffiths v. Dudley, 9 Q. B.D. 357: R. R., 26 Barb. 641 ; and see The Indiana.
Louisville E. & St. L. Ry. T. Don negan. 12 Cent. R. R. v. Mundy, 2 Ind. 48; Illi-
N. E. Rep. 153; and see d5 Alb. L. J. 404, nois Cent. R. R. v. Read, 37111. 484: <iee
33 N. W. Rep. 603, 8 Fed. Rep. 782 also 9 Amer. & Eng. Ency. Law 913-914,
' Kinney v. Cent. R. R. of N. J., 34 and cases collected; Steamboat v. King, 16
N. J. Law 513; Perkins v. N. Y. Cent R. How. (U. S.)469; 1 Am. R. Cas. 191, note;
Co., 24 N. Y. 196; Bissell v. N. Y. Cent. and an article in 26 Am. Law Review 21^
R. Co., 25 N. Y. 448; and see Jacobus v. [1892].
St. Paul R. Co , 20 Minn. 110. ^ Ulrich v. N. Y. Cent. R. Co., 108 N.
* Pittsburgh, etc., R. Co. v. Mahony Y. 80 [1888].
(Ind. Sup.), 46 N. E. Rep. 917, but not so * Penna. R. Co. v. Henderson. 51 Pa. St.
if the pass is not a gratuity; Doyle «. Fitch- 315; contra, Omaha & R. V. Ry. Co. v.
burpR. Co. (Mass.), 44 N. E. Rep. 611. Crow (Neb.). 66 N. W. Rep. 21: ot/ier casein
t Kinney v. Cent. R. R. of N. J., 34 N. 9 Amer. «& Eng. Ency. Law 914.
§ 86G.] ENGINEERS AND ARCHITECT'S EMPLOYMENT, 791
the passenger is carried gratuitously, or as a matter of courtesy, does
not prevent him from recovering from the carrier for injuries received
arising from gross negligence of the company^s servants.* In the absence
of express agreement exempting the carrier from liability, it will be liable
for injuries resulting either from culpable negligence or want of skill; and
the liability does not arise from any implied contract, but from the violation
of a duty imposed by the circumstances." A duty is imposed by law that any-
body, that causes damage to another is bound to repair it, and it is against
the policy of the law to allow any one to escape that responsibility.'
An engineer does not, it seems, assume the risks of riding over a defective
track, to and from his work, so as to relieve the company from liability for
the negligence of its employees.* A person riding on a construction train on
account of a pass issued by a subcontractor, over a section of a railroad in
possession and under control of the contractor who is injured through the
negligence of a locomotive engineman employed and controlled by the con-
tractor, cannot recover from the railroad company whose road they are
building/
The constitution of the State of Kew York, Art. 13, § 5, provides that
any public officer elected or appointed to a public office who shall travel on
a free pass shall forfeit his office. A notary public has been held a public
officer within the article; and it would, without doubt, apply to engineers
and architects appointed or elected." The article applies to public officers
using passes received by them before such provision took effect."
»Pbila. & Reading R. Co. v. Derby, 1 la.). 42 N. W. Rep. 563; see also North-
Am. Law Reg. 397 [1852]; other cases ern Pac. R. Co. v. Beaton (C. C. A.), 64
ciUd, 9 Amer. & Eng. Ency. Law 914. Fed. Rep. 563.
*Nolton«j. Western R. Corp., 15 N. Y. ' Scarbrough v. Alabama Mid. Ry. Co.
444 [1857]. (Ala.), 10 So. Rep. 316.
8 9 Amer. & Eng Ency. Law 913. • People v. Rathbone (N. Y. App.), 4Q
* Melvy V. Chicago & N. W. Ry. Co. N. E. Rep. 395.
CHAPTER XXXIV.
EMPLOYMENT OF AN ENGINEER OR ARCHITECT AS AN EXPERT
WITNESS.
THE CONSULTATION", PREPARATION, AND BEHAVIOR IN COURT. REMUNERA-
TION FOR HIS SERVICES.
867. Expert Witness — Treatment of the Subject.— The duties of an engi-
neer in the capacity of an expert witness may be properly treated under four
heads, to wit: (1) Consultation, which may include inquiries to make, infor-
mation to seek, attitude to assume, and opinion to express; (2) preparation,
including study of books, collection of materials, preparation of documents,
diagrams, models, and calculations; (3) behavior in court, experts' conduct,
duties, and rights upon the witness stand, and what devices he may resort
to, to strengthen them and prove his convictions; (4) compensation, whether
entitled to anything but regular witness fees.
THE CONSULTATION.
868. An Expert should Take Time to Investigate and Decide before
Giving an Opinion. — When an engineer is approached by a party to
a suit, to ascertain if certain facts are true or if certain results would
naturally or necessarily follow certain conditions and circumstances,
it is necessary that he should exercise the utmost caution and discre-
tion in giving an opinion. Nothing could be more futile or impos-
sible than to give an opinion without knowing all the facts and circum-
stances, and until time has been taken for consideration, computations,
study, and reflection. An expert's first duty is to thoroughly acquaint him-
self with the whole story; he must learn all the facts and circumstances, visit
the scene of controversy before he can attempt a conclusion. He should
deny hasty answers and opinions, but reserve his decisions upon all impor-
tant questions, and in the sober atmosphere of his study or office, secure
from excitement and the coloring of partisan spirit, with his books for coun-
sel and his computations for guides, determine questions upon which he may
be asked to stake his reputation and professional experience and controvert
the opinions of brother engineers. An engineer is as much justified in
requesting time for the consideration of a problem in engineering as is a
lawyer to look up a question of law, and unless he is perfectly satisfied (of
792
§869.] ENGINEER 8 AND AliCIIITEGT'S EMPLOYMENT. 793
the proper solution or of i\\Q reasonable outcome of a certain state of facts)
that his answer is technically correct, he may simply ask time to consider it
further before expressing an opinion or making a decision. Nothing can be
more embarrassing than to have to modify or correct opinions hastily given,
or more humiliating than to take the fire of a skillful attorney assisted by a
learned engineer, in an effort to sustain an untrue statement or a mistake in
a, professional opinion.
lie ''stands with bare breast, his entire moral and professional career
from childhood open to the shafts of the enemy. If he be proved — and
sometimes, if he be accused of being — untruthful, ignorant, incompetent,
over-pretentious, careless, or any one of a dozen undesirable things, over goes
not only his present case, but his entire future as an unblemished and unvan-
quished expert."' "He stands, as did the gladiator, an Ishmaelite, his
hand against every man, and every man's hand against him." ' His oppo-
nents elevate themselves out of his shattered reputation, and glorify them-
selves out of the destruction of his fame. Such a mistake is worse than a
blunder in actual work, for court proceedings are public property, published
by individuals and the press. Though perhaps only a hasty, imprudent
reply or remark, it becomes an advertised publication to his discredit, that
is always on record, to come up before him at any time and every place, a
bitter reminder of his carelessness.
869. Expert must have Regard for the Understanding and Knowledge
of His Audience. — "Skilled witnesses are apt to make themselves appear less
trustworthy by forgetting that their science has advanced them beyond the
ideas of the people before whom they appear. Mr. Brunell, the eminent
engineer, being asked once in cross examination, before a committee, how
fast steam-carriages might be expected to travel on railroads, answered, ' Very
possibly ten miles an hour,' upon which the learned counsel contemptuously
bid him stand down, for he should ask him no more questions, and the weight
of his former evidence was much impaired." '
The knowledge, observation, and experience of men vary in every imag-
inable degree; their notions of possibility and probability naturally differ tp
nearly the same extent. Eacts that one man considers both possible and
probable, another holds to be physically impossible. These notions are more
or less accurate according to one's acquaintance with the laws of nature, of
science and mathematics, for phenomena in apparent violation of nature's
laws have been found on examination to be the regular consequences of
other laws previously known. ''The story of the king of Siam is often
quoted to show this. This king believed everything the Dutch ambassador
told him about Europe, until he mentioned that the water there in winter
became so hard that men, horses, and even elephants could walk upon it,
which that monarch at once pronounced a palp9,ble falsehood." * The world,
'Amer. Engineer, Sept. 12, 1884. 'Gressley's Equity Evidence, 469.
« Engineering News, April 9, 1887. * Locke Bk. 4 Ch. 14, § 5.
794 ENOINEERING AND ARCniTEGTURAL JURISPRUDENCE. [§ 870.
and especially the ecclesiastical and legal elements of the world, have always,
"been ready to demonstrate the physical impossibility of new ideas and under-
takings. Columbus's theory of the shape of the earth, ocean travel by steam,
electric telegraphing, high-speed travel in railway-carriages, and a thousand
other new ideas and undertakings have been, each in its turn, pronounced
impossible, and their probability a lie too gross to require confutation.
Their promoters and believers have been the mockery of the world, " con-
signed to confinement as hopeless lunatics or sent to the stake as emissaries
of the powers of darkness/'
The skilled witness must confine himself to the understanding of his
audience. His language, illustrations, and explanations should be common-
place and within the comprehension of the court and jury. In no instance
should good common sense and experience be sacrificed to theoretical and
technical views, unless opposed to the truth and to the witness's firmest con-
victions. He should go into court well armed and fortified with scientific
facts and principle, his foundation should be based upon mathematical and
scientific reasoning, and not upon popular notions and beliefs; but these facts
and principles must be presented and delivei:ed in a manner to be understood.
However firm the convictions of an engineer may be within himself, they
cannot have much weight as expert testimony unless they can be presented
and are comprehensible to the average man; and this must be considered
before engaging to prove these convictions in the capacity of an expert wit-
ness. '
870. Esteem in which Experts are Held by Bench and Bar. — An engi-
neer should be made acquainted with the feelings with which he is regarded
and the attitude assumed by the court toward him before he consents to
appear before it, for or against a cause. He may then see the necessity o
considering how clearly and positively he stands upon the question submit-
ted, and how willing he may be to stake his professional standing and repu-
tation upon it.
Courts have little confidence in expert testimony. The opinion of
scientific witnesses is at the very bottom of the scale of importance of all
the various classes and kinds of testimony. The following, from one of the
best text-writers upon the subject of evidence, is but a fair example of the
opinions of jurists frequently expressed. He Lays: "Perhaps the testimony
which least deserves credit with a jury is that of skilled witnesses. These
gentlemen are usually required to speak not to facts, but to opinions, and
when this is the case it is often quite surprising to see with what facility
and to what an extent their views can be made to correspond with the
wishes or the interests of the parties who call them. They do not, indeed,
willfully misrepresent what they think, but their judgments become so
*For an interesting case in point, see Salvin v. N. Brancepeth Coal Co., L. R. 9 Ch.
App. 705 [18741.
§ 871.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 795
warped by regarding the subject in one point of view, that even when con-
scientiously disposed tliey are incapable of expressing a candid opinion.
Eeing zealous partisan^--, tlieir belief becomes synonymous with Faith as
defined by the Apostles, and it too often is but 'the substance of things
hoped for, the evidence of things not seen/ To adopt the language of Lord
Campbell, ' Skilled witnesses come with such bias on their minds to support
the cause in which they are embarked, that hardly any weight should be
given to their evidence/ " ^
Although this strong lan^iage is not always indorsed, and expert evi-
dence is often regarded as absolutely essential in the administration of jus-
tice, yet it is discouraged, and received only in cases of necessity, the
universal feeling being that better results will generally be reached by taking
the impartial, unbiased judgment of twelve jurors of common-sense and
common experience than can be obtained by taking the opinions of experts,
if not hired, at least friendly, and whose opinions cannot fail generally to
be warped by a desire to promote the cause in which tliey are enlisted."
Expert testimony based upon the testimony of a witness which is
rejected by the jury is held of no value, and scientific opinions are regarded
as worthless when pitted against facts. The theories of skilled men are
not always reasonable, and are never to be regarded when they manifestly
conflict with established facts.' However, it has been held error to author-
ize the jury to reject as untrue the statement of an expert merely because
it is not confirmed by their own experience and observation.*
871. Biased and Warped Judgments are not Confined to Professors of
Science. — However much is said, or may be said, of the differences of opinion
among scientific witnesses and of their warped judgments, it may not be
out of place to remind lawyers and jurists that no such diversity of opinion
exists in science as is openly exhibited in -law, both at the bar and on the
bench. Mistakes are no more frequent among engineers, chemists, and
physicians than they are in the legal profession. Questions of law are fre-
quently as much matters of opinion as are questions of science, and it is
submitted that there is no better evidence of the fallibility of human nature
than that recorded in the reports of the courts. Every case that is reversed
by a higher court is a record of a mistake in the court below, and every
suit brought and defended must prove one of three things, viz.: (1)
Either, one of the lawyers has misunderstood the facts of his case, or (2) he
has lacked in abilitv and learning of his profession, or (3) (and with all
due respect to the legal profession, and with a full appreciation of the
tendencies and temptations, and with as much charity as the bench and
bar have shown to men of science) he has possessed too much of " that
> Taylor's Law of Evidence (8th ed.) 79 N. E. Rep. 686 [1887-81.
and 573. * Louisville & N. R. Co. v. Malona
3 Ferguson v. Hubbell, 97 N. Y. 507. (Ala.), 20 So. Rep. 33.
« Stone i>. C. & M. R. Co. (Mich.), 13
796 Els GINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 872»
facility of changing his views to correspond with the wishes and interests of
his client, and his judgment has become so warped by regarding the case
from one point of view " — the professional point, and not the point of law.
Any one of these may apply to a skilled witness, but science and engineer-
ing are not based upon fictitious rules and principles, such as " every man is
supposed to know the law," and " ignorance of the law is no excuse." If
judges and lawyers make frequent mistakes, they should have some charity
for scientists, whose field is immeasurably broader and infinitely deeper.
The courts and lawyers talk of bias, prejudice, ignorance, and narrow-
mindedness of scientific men, but this is manifestly unjust. It is not.
evident that scientific men make many, mistakes in their professional prac-
tice. These same lawyers and jurists do not hesitate to consult and employ
physicians, chemists, and engineers when they are sick, poisoned, or have
structures to erect.
872. Experts Are Champions of Their Clients as Well as Attorneys.— ^
Experts have come to regard themselves as champions of a cause, "and their
testimony is nothing more than a studied argument in favor of the side for
which they have been called. So generally true is this that it would excite
scarcely less surprise to find an expert called by one side testifying in favor
of the other side, than to find the Counsel upon either side arguing against
their clients in favor of their antagonists." ^ In general this cannot be
denied, and so long as experts are hired advocates they can be no more
blamed for their partisan views expressed than can the counsel for his
arguments against his convictions and better understanding; but to make
a wholesale declaration that men of science, as a class, are wholly unreliable,
that their opinions are biased, bought, and of no weight, is a libel upon sev-
eral large professions of honorable men, who in their whole lifetimes may
not see a witness-stand.
Courts lay it down as a duty to experts, in any case, to testify with im-
partiality, to give their honest, conscientious opinion and judgment; but as
well might they charge the counsels to adhere strictly to their convictions
of what the truth is or what the laws are. The opinions of an expert have
become aii expression which is a part of the counsers case, and are to sup-
port the framework of his arguments. They are prompted by the solicita-
tions and suggestions of the counsel, who is the loudest in berating and con-
demning the practices which he has created, an example of which is shown
in the following libelous comparison, sometimes indulged in by disappointed
members of the bar: as "positive, liar; comparative, thundering liar;
superlative, scientific witness." '
873. Candid Opinions of Experts may be Had if They are Sought. — If
courts want truths and candid opinions, let them acquire the power to sum-
mon-skilled witnesses of acknowledged authority, on behalf of the court or
» 1 Redfield on Wills 103, « 34 Alb. Law Jourual 457.
§874.] ENGINEER'S AND AUCBITECT'S EMPLOYMENT. 797
state. Let them seek the unbiased and free opinion of engineers and
architects, and there will not be the controversy now experienced. Their
compensation may be added to the costs of the suit, or be paid from the
public treasury. Similar practices are in vogue in France and Germany,
and must eventually be adopted in this country.*
It is submitted that men who care to maintain their name and reputa-
tion will hardly care to submit to tlie reflections, opinions, and directions of
an attorney at law upon an engineering question, and it is quite clear that
the best men of science, or of the scientific professions, will not act as
experts under existing conditions and be subject to any dictation. " Who
indeed is oftenest heard from as an expert in court ? Not the man of last-
ing renown and of chief honor in his profession, but rather he of 'your
modern kind of fame, the morning papers reeking with his name.' " '
874. It Is the Duty of Every Citizen to Promote Justice. — Where an
engineer has given due consideration to his subject, and is perfectly satis-
fied he can assist justice and can prove the truth to court and jury, he
should not refuse. It should be his duty to meet and overcome this reck-
less and biased practice of warping science to the uses of the wicked.
Nature should blush at the uses made of her teachings. Is science a mar-
ketable commodity? can mathematics be employed to usurp the truth ?^ can
the laws of nature be altered to suit the exigency of any and every case ?
But give an engineer his freedom upon the witness-stand, relieve him from
the constant interruption and objections of opposing and friendly counsel,
permit him to answer questions with proper explanations and limitations,
and matters of science and mathematics will not remain long in doubt.
Nothing is more annoying and aggravating to a conscientious witness than to
be required to answer questions categorically, by yes or no — questions that
have been studied and prepared by the attorney for the express purpose of
demonstrating certain doubtful matters of science, or to prove true an
untruth, and which may convey an impression directly contrary to the mean-
ing which the witness would express.
Erom what has been said, the reader may conclude that the writer would
warn engineers of parties to suits or their counsel who require certain facts
to be established, or who introduce themselves with the question, " Can you
or will you testify to this or that fact?" A much better impression may
"be had of those who inquires after the truth or actual results of certain con-
ditions. The engineer's mission and his profession is simply the elucida-
tion of truth.* If he is a man true to his profession, he will always give the
results of his study, whether it bears for or against the side upon which he
liappens to be called. If he is not prepared to do that, or if the circum-
stances of the case prevent it, then he is in duty bound to decline, or
» Best on Ev'dce (Chamb. ed.) § 515 " Article in 3 Law Times 444 [1844].
2 17 Engineering News 234 [1887]; Rog- " Wm J. McAlpiiie, Transactions of
ers' Expert Testimony 5Q. Amer Soc. C. E. 1870.
798 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 875.
refuse to render his services. This he may not always do; but if compelled
to attend against his wishes, he cannot be said to be under any obligations
to either party to the suit, and may exercise his honest judgment, without
prejudice or criticism.
875. The Preparation — Expert Witness should not Only be Informed,
but He must be Prepared to Convince Others. — Having consented to
appear, and to testify to certain opinions, beliefs, or truths, it now becomes
the office of the expert engineer to maintain his position, and to prove his
conclusions beyond question. To accomplish this object he should spare
no efforts. He must not only be fully informed himself of all the facts,
circumstances, and agencies which have brought about the results claimed,
but he must be prepared to intelligently present them to the court
and jury; to show them the relative positions of objects that figure in the
case, their purpose, condition, and effect. To what extent he should carry
these preparations, and how far he may utilize them, will now be con-
sidered.
876. Use of Books by Expert "Witness. — Books of science canngt in general
be utilized in court as evidence to prove the declarations and opinions
which they contain.' The reason for this rule is that the writer waa
not under oath when he wrote the opinions, and it may be that new
circumstances have arisen, and new discoveries since come to light, under
which his beliefs would be changed. Furthermore, the author is not in
court, he cannot be cross-questioned, the jury have not the opportunity to
observe the effect of questioning, or to judge of the character and disposi-
tion of the writer.
The force of these reasons does not exist when an expert adopts or rati-
fies the contents of a book, and offers the opinions of the author as his own.
He is then presumed to have considered and weighed the assertions of the
book, and to have reached a conclusion of his own, which he is giving in a
court of justice, and under the solemnities of an oath. Experts are not,
therefore, confined wholly to their personal knowledge and experience, but
may give their opinion formed in part from reading of books. They may
give the source of their opinions, and state that all writers, so far as they
know, support the same opinion." They cannot, however, be compelled to
name the particular books, even when they state that their opinions are
based upon standard works.' It has been held that an expert cannot read
from his own published works to support his testimony, especially when tho
witness does not testify as to the truth of the extracts read.*
Testimony as to matters gained from the study of standard works, rather
' State V. Baldwin (Kan.), 12 Pac. Rep. ^ Taylor on Evidence; People v. Van-
318: 7 Amer. & Eng. Eucy. Law 513; deihbof (Mich.), 39 N. W. Rep. 28 [1888];
Johnston v. Richmond & D. R. Co. (Ga.), Marshall v. Brown (Mich.), 15 The Reptr.
22 S. E. Rep. 694. 693 [1883]; 32 Alb. Law Jour. 54.
2 State V. Baldwin (Kans.), 12 Pac. Rep. * Mix v. Staples, 17 N. Y. Supp. 775,
318 [1887]. Justice Q'Brien dissentin^^
§876.] ENGINEER'S AND ARCHITECT' 8 EMPLOYMENT. 799
than from actual practice, is admissible,* land the fact that the witness's
knowledge of the subject is limited to what he has derived from books is
not a valid objection to his testimony. He is entitled to speak from the
accepted facts of the science.' Physicians have been permitted to give
knowledge and opinions confessedly not from their own observation and
experience, but merely from reading and studying medical authorities.'
When books are referred to for autliority, or to strengthen opinions, the
opposition may bring the same books in evidence to test the witi;ess's knowl-
edge, or to contradict him or his opinion.*
Rules for the construction of cuts and embankments, given by an engi-
neer, and though acknowledged to have been given solely from his recollec-
tions of what he had read in Mahan, Gillespie, Gilmore, and other authori-
ties on engineering, were received as competent.^ It is therefore submitted
that though books themselves are not admissible to prove the declarations
they contain, yet their statements and opinions maybe brought to the court
And jury through the mouths of skilled witnesses. The expert engineer
should, to that end, seek, collect, and prepare the opinions of learned authors
to sustain his position and carry conviction to the minds of court and jury.
If contents of books are to be introduced, they must be ushered in through
the familiar acquaintance, and by the quotations and references, of skilled
witnesses.
Books cannot be read to a witness and the questions plied to prove their
contents.' Their contents must have been previously known. Though they
xjannot be read to a witness for the purpose of showing facts set forth, yet
questions may be read from a book on technical science for the purpose of
making the questions more intelligible.'' The use of a standard authority
on the subject of inquiry has been permitte'd to shape questions put to an
expert, and he has been required to examine and read from the book for the
purpose of testing his knowledge of the subject.®
Books may also be read to a jury in the argument by counsel, not to
prove matters of opinion, or of fact, but to support arguments presented.
Counsel should not be allowed to read to a jury from a legal text-book,*
and permission to read the law to the jury is within the discretion of the
trial judge." Current schedules of prices in trade, calendars, life-tables,
and so forth, have been admitted, and it is submitted that in the same cate-
^ Fordyce v. Moore (Tex.), 22 S. W. » Central R. R. Co. v. Mitchel, 63 Ga.
Rep. 235; Hardiman v. Brown (Mass.), 39 173.
N. E. Rep. 192. « 50 Mich. 148 and 296 and 629.
» Marshall v. Brown (Mich.), 12 The ' Thonipkins v. West, 56 Conn. 478.
Reptr. 693 [1883], and 33 Albany Law » Byers v. Nashville, C. & St. L. Ry. Co.
Journal 54. (Tenn.), 20 S. W. Rep. 128.
3 Rogers' Expert Testimony 28; City of » Yarbrough v. State (Ala.), 16 So. Rep.
Jackson v. Boone (Ga.), 20 S. E. Rep. 46. 758.
4 Marshall v. Brown (Mich.) [1883], "> Forbes t>. State (Tex.), 29 S. W. Rep.
■supra; People v. Vanderhoof (Mich.), 784.
^upra ; Taylor on Evidence.
800 ENOINEEBIim AND ARCHITECTURAL JURISPRUDENCE. [§ 87X
gory can be classed standard tables of sines, cosines, logarithms, multipli-
cation tables, etc/
In general, it may be stated that books will not be admitted as evidence-
of the facts they contain. Their statements cannot be used directly to prove
the size or shape of a member of a structure, nor what is or is not a proper
construction of a piece of work. If the engineer wishes to back up his
assertions by the authority of books he must prepare himself upon the sub-
ject, and give others' opinions as his own. Questions as to materials, what is
*'a good and workmanlike manner," what is "hard-pan," cannot be proven
by reading directly from a book.'
Whatever beliefs or opinions the engineer may wish to advance must be
his own. He may have acquired them from reading or the study of books,,
he may mention books or cite authority, but he cannot read the books in
court, nor literally quote the author's statements. He must express his own
indvidual opinion and may give in support of his conclusions the fact that,
others have arrived at the same decision, or that other engineers hold to the
same views.*
877. Witness may Use a Book, Chart, or Prepared Memoranda to Refresh-
fiis Memory. — What has been said need not convey the idea that the engi-
neer's preparation requires him to memorize whole pages of printed matter,
for he may take his books, maps, and notes into court and on to the wit-
ness-stand with him and refer to them, to refresh his memory, upon questions
in doubt. He may draw up a written narrative, make written memoranda
of a subject or transaction, and use it while under examination as a script to
refresh his memory.* If he is able to testify (1) that the statements con-
tained in such memoranda are accurate in his present recollection, or (2).
that from his present recollection the memoranda were accurate when made,,
he may refresh his memory by examination of memoranda regarding dates,
figures, results of calculation, minutes of testimony, and the like, whether
such memoranda has been made by the party himself or by any other person.
An engineer may make use of a map made by him, with figures representing
lengths of lines, areas, and quantities, and testify from it. Whether such
maps and calculations, so employed, become evidence of themselves, is in
dispute. If positively testified to by the witness, they are admissible; if
sworn to, that the figures well and truly represent the true distances, quanti-
ties, and areas, they may become evidence. In the discretion of the court they
may be allowed to go to the jury, and be taken out with them when they re-
tire as a memoranda of the distances, areas, and quantities as sworn to by the
engineer.* As a witness he cannot read from his memoranda, even though
' Morris v. Cohimbian Dock Co. (Md.), cited, see Ceutral Law Journal, vol. 5, p.
25 All. Rep. 417; Richmond & D. R. Co. v. 439, and vol. 15, p. 88.
HisouglAla.). 13So. Rep. 209. 'Lawson's Exp. & Opin. Evdce. 16»
' Lawson's Expert and Opinion Evdce. et seq.
187-192. For an article on Books of Sci- -^Best on Evidence (Chamb. ed.) 227.
ence as Evidence, in which many cases are ^ Nelf v. Cincinnati, 32 Ohio St. 215;;
§877.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 801
made by liimself ; he can refresh his memory by looking at the writing, but
he must testify from his recollections.* Even though the memoranda is not
admissible as evidence, he may use it, if he knows it to have been correct
when it was made, to refresh his memory, after which he must testify to the
original facts.'' The memoranda is not of itself competent evidence to prove
the facts stated.' In general, such memoranda employed by a witness to re-
fresh his memory must be verified as correct * before it can itself become
evidence/ If an engineer swear that the figures upon a plat representing
lengths of lines, areas, and quantities are correct and represent the true
distances, areas, and quantities, it may become evidence, and the tiial court
may in its discretion allow the jury to take the plat with them as a memoranda
■when they retire.' If, however, the witness has no recollection of the facts
contained in a memorandum independent thereof, yet testifies thereto in full,
it is not error for the trial court to refuse to admit the memorandum itself as
evidence.'
A witness may refresh his recollection by reference to any memoranda
relating to the subject-matter to which his attention is directed on the stand,
whether such memoranda is competent evidence or not, and then he may
testify, if he has then any independent recollection of such subject-matter."
This is not, however, a general rule.'
Memoranda of facts that occurred, must have been made at the time or
recently after the event. If made weeks or months thereafter, they cannot
he used to refresh the memory, nor can they if made at the recommendation
of one of the parties.'" Memoranda made by a workman from day to day, in
the ordinary course of business, may be used to show the days his employer
worked on a certain building." An architect's certificate has been admitted
some time after the facts of the case, but from measurements and notes made
contemporaneously with the work.*' In general, a witness must swear to the
facts contained, if he will give testimony of things in a document which he
is using to refresh his memory."
Cunningham v. Massena, etc., R. Co. and see Commonwealth «. Burke, 114
(Sup.). 18 N. Y. Supp. 600. Mass. 261; Merril v. The Ithaca & O. R.
» Wilde V. Hexter, 50 Barbour 448. Co., 16 Wend. 586; Bissell v. Mich. South-
«Bounette v. Gladtfeldt, 11 N. E. Rep. ern, etc., R. Co., 22 N. Y. 262; Halsey th
250 (Ills.) 1887; Meade v. White (Pa.), 8 Sincebaugh, 15 N. Y. 485; Harvey v^
Atl. Rep. 912 [1887.] United States, 113 U. S. 243.
^Baum v. Reay (Cal.), 29 Pac. Rep. 117. '° Spring Garden Mut. Ins. Co. v. Evans,..
* Elder ij. Reilly (Minn.), 51 N. W. Rep. 15 Md. 54 [1859]; Howell «. Bowman.
226; City of Birmingham v. McPoland (Ala.), 10 So. Rep. 640; see also Baum v..
(Ala.), 11 So. Rep. 427. Reay (Cal.). 29 Pac. Rep. 417; Anderson.
^Klepsch v. Donald (Wash.), 35 Pac. v. Imhoff (Neb.), 51 N. W. Rep. 854.
Rep. 621. " Bough ton v. Smith (Sup.), 22 K Y-
BNefif V. Cincinnati, 32 Ohio St. 215. Supp. 148.
' Butler D. Chicago, B. & Q. R. Co. *' Sanders v. Hutchinson, 26 Ills. (Ct. of
(Iowa), 54 N. W. Rep. 208. App.) 633 [1887]; also Cunningham v. M.
8 Denver & R. G. R. R. v. Wilson S. & Ft. C. R. Co, 18 N. Y. Supp. 600,
(Colo. App.), 36 Pac. Rep 67; McNeely [1892]. ci^m^' 114 N. Y 498.
«. Duff (Kan.), 31 Pac. Rep. 1061. '' Harvey v. United States, 113 U. S. 243.,
» King «. Inhabitants, 2 A. & E. 210;
^2 ENGmEElilNQ AND ARCHITECTURAL JURISPRUDENCE. [§878.
878. Use of Written Memoranda and Copies Thereof. —Bills for materi-
als, drayage checks, and weigh checks received with materials delivered at
works are only hearsay evidence of the quantities of materials purchased and
put into a structure, when the witness does not know that they were correct,
itind was not present when the materials were delivered, and did not there-
after measure and inspect them/ Books of account, containing items for work
done and materials furnished, the correctness of which was sworn to by a
bookkeeper who did not see the work done or the goods delivered, and who
made the entries from memoranda furnished by others, are inadmissible,
ivhere one who had personal knowledge of the doing of the work and the
furnishing of the materials was present at the trial, and was not called to the
■stand.' However, the fact that books of account contain some errors does
not, in the absence of evidence that the books were fraudulently falsified,
necessarily render them incompetent.'
If the original memorandum has been lost or destroyed, the witness may
use a copy to refresh his memory, if he testify that the figures or estimate to
be used were made at the time of the measurement of the work and that
they are correct, and also that the copy is a correct one.* So held of a blue
print." Proof of loss of books, so as to admit the testimony of the book-
keeper as to their contents, is sufficiently shown by his testimony that he
made diligent search for the books, and found some of them in the cellar of
the store, in some old rubbish, and among them the covers of the books in
question, but the insides of them had been torn out and taken away, and he
oould not find them." The copy becomes the best evidence of the contents
of the original book or document, and is admissible, while parol evidence
of its contents, if it be a written instrument, is not admissible.''
A stenographer's notes of the witness's testimony given at a former trial,
"when the stenographer has shown that he took the notes and that they are cor-
rect, may be read to impeach the witness's present testimony, even though the
stenographer has no recollection of what the witness said.® So where the books
of original account have been destroyed, the items therein may be proved by
the ledger.' A manager of a firm business, it seems, cannot use such a book
to refresh his memory, if he did not make the entries, or see them made, nor
•assure himself of their correctness when the matters were fresh in his memory."*
l^or if such entries were made by a party to the suit in his own behalf.'^
' McCormick v. Saddler (Utah), 37 Pac. '' Dillon v. JEIowe (Mich.), 57 N". W. Rep.
Rep. 332. 102.
2 Dodge «. Morrow (Ind. App.), 43 N. E. ^Klepscb v. Donald (Wash.), 35 Pac.
Rep. 153. Rep. 621.
3 Levine v. Lancashire Ins. Co. (Minn.), ^ McCrady v. Jones (S C), 15 S. E.^ Rep.
68 N. W. Rep. 855. 430.
4 Anderson v. Imhoff (Neb.), 51 N. W. 1° Fritz ®. Burgiss (S. C), 19 S. E. Rep.
Rep 854. 304; but see Levine v. Lancashire Ins. Co.
5 Currier v. B. «fe M. R. Co., 31 N. H. (Minn ), 68 K W. Rep. 855.
225 [1855]. >» Doty v. Smith (Sup.), 22 N. Y. Supp.
«Stanfield « Knickerbocker Trust Co. 840.
(Sup.), 37 N. Y. Supp. 600.
§ 880.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 803
It is proper to read to a witness extracts from evidence given by him on a
previous trial to cause him to recollect the facts as he testified on a former
trial;* and a witness, either on direct or cross examination, may be com-
pelled to inspect a writing, if it is in his own handwriting or there is reasoa
to believe it will refresh his memory." The use of memoranda to refresh
one^s memory has been held a matter largely discretionary with the trial
court. ^
879. Use of Maps, Plans, Photographs, and Models in Court.— It being
well established that memoranda, books, and maps may be employed to illus-
trate, explain,, and prove the expert^s opinions and testimony, the next sub-
ject for consideration is what preparations to make. First of all a complete
understanding of the facts, circumstances, and surroundings of the case,
and the preparation of diagrams, models, and other means of presenting
fhem to the court and jury. The conditions and surroundings attending a.
problem are primary in the determination of results; small technicalities
often make an entire change in the results and deductions to be drawn front
certain facts. If possible, the locality should be visited and carefully exam-
ined, that the expert may be familiar with all its peculiarities. If the occa-
sion requires it, a careful survey and map of the ground should be made.
Samples and pieces may be taken of the soil, structure, and materials.
An ex parte map made by a witness, and shown to be correct, may be in-
troduced, not as independent evidence, but to be considered by the jury in
connection with other evidence."* A civil engineer who has made a survey
of the locality may testify that there was no obstruction, and that the head-
light of a train would be visible from points in the neighborhood of the
scene of a collision.^
880. Use of Photographs as Evidence. — Photographic views should he
taken from selected positions, which, if sworn to as being true representa-^
tions of what they profess to be, may be introduced in evidence.' The value
of photographic views cannot be overestimated. They are invaluable in
case of destruction of buildings or other structures by wind, flood, or fire
They are much easier to comprehend than are maps or plans by jurymen,
and they are quite difficult of misrepresentation, and are now generally
accepted as evidence. They show elevations and depressions, distances and
shapes as they naturally appear to the eye, and are more convincing to both
jury and judge. They are quickly and cheaply made, and are comprehensible
to the most uneducated and unskilled, and are received for nearly all pur-
poses and in all cases where the original object cannot be had. It must be
' Ebrisman v. Scott (Ind. App.), 33 N. 17 S. E. Rep. 794; Roderiquez v. State
E. Rep. 867. (Tex.), 32 S. W. Rep. 978; McVey v. Dar-
2 State V. Stanton (N. C), 19 S. E. Rep. kin (Pa.), 20 Atl. Rep 541 [1890J.
96. 5 Chicago, etc., Ry. Co. v. Cliambera
" Michigan Ins. Co. v. Wich (Colo.), 46 (C. C. A.), 68 Fed. Rep, 148.
Pac. Rep. 687. ' « Howard v. Russell, 13 S. W. Rep.
4 Poling V. Ohio River R Co. (W. Va.), 535; German T. S. v. City of Dubuque, 64
18 S. E. Rep. 783; State v. Harr (W. Va.), Iowa 736.
•804 ENGINEEBmG AND ABCEITECTUBAL JURISPRUDENCE. [§ 880.
admitted that photographs taken from one point of view to determine matters
of size, relative proportions, grade, etc., might be very misleading, as very
different results can be obtained by tilting the photographic apparatus
(camera), or by being too near the object, resulting in distortions; but when
a set of photographic views are made of an object from different points of
view and at varying distances, it is a very difficult matter to make a mis-
representation of the object and its attendant conditions.
The following examples serve to show their admissibility and value : They ^
*have been admitted "to show damage to premises injured by water,"*
or by a change of grade of a street,' to show wrecks, ' and of broken parts
of fallen structures, to show the obstruction to drainage of a turnpike by the
erection of a bridge or causeway,* to show a defective sidewalk/ Photo-
graphic views of streets, buildings, railroad tracks, bridges, etc., have been
admitted." *
Photographs may be received of deeds and descriptions taken from public
records which could not be withdrawn, such as to show boundaries,^ and to
identify and describe premises in dispute,^ to identify persons,' a lot of jew-
elry," and to show the severity of wounds due to an assault; and the fact
ifchat the expression of the injured person's face was such as would tend to
prejudice the jury is not sufficient to show error in allowing it to be used,
the photograph not being included in the record. ^^ . They have been ad-
mitted to identify documents, and in place of the original if the original
•document itself cannot be had," and to show field notes of a survey.*'
Photographic copies on a large scale have been admitted to show com-
parisons of handwriting," but such copies have been excluded when not
offered for comparison with enlarged copies of the genuine signature." Tes-
timony as to the genuineness of handwriting has been extended to a mark
or cross by means of which an illiterate person signed his name, its weight
* 64 la. 736. « Blair v. Pelham, 118 Mass. 421 ; Mulhado
"^ 31 Wis. 512. V. R.R.Co., SON. Y. 370; Cooper v. St. Paul
^ Kansas R. Co. d. Smith (Ala.), 8 So. City Ry. Co. (Minn.), 56 N. W. Rep. 42.
Hep. 43 [1890]; 46 la. 109. 9 Udderzook v. Commonwealth, 76 Pa.
* Chestnut H. Tk. Co. «. Piper, Penna. St. 352; People «. Smith. 121 K Y. 578.
Sup. Ct., Jan'y 1884. lo 59 Fed. Rep. 684; Rulof «. People, 45
' Barker v. Town of Perry (la.), 25 K N. Y. 213.
W. Rep. 100 [1885]. » Cooper v. St. Paul City R. Co., supra.
* Glasier v. Town of Hebron, 16 N. Y. *^ In re Foster (Mich.) 3 Am. Law Times
iSupp. 503, an embankment; see Locke v. Rep. 411 [1876]; see also 'Ethoin v. Ziraple-
■Sioux City & P. R. Co., 46 la. 109; Red- man (Tex.) [1877] ; Haynes v. McDermott.
^din V. Gates, 52 la. 210; German T. S. «. 11 Cent. L. J. 378.
-Oily of D., 17 N. W.Rep. 153; Udder- >» Ayers v. Harris (Tex.). 13 S. W. Rep.
nsooks Case, 76 Penn. St. 340; Ruloff v. 768 [1890].
People, 45 N. Y. 213; Marcey v. Barnes, ^^ Marcy v. Barnes, 82 Mass. 161; but see
16 Gray 162; note 26 Am. Repls. 319; note Hynes v. McDermott (N. Y.), 22 Alb. L. J.
38 Araer. Rep. 474; note 23 Alb. Law 367 [1880]; also Tome v. Parkerburgh B.
Journal 182; Cozzens v. Higgins, 3 Keyes R. Co.. 39 Md. 37 [1873].
206, acellar floors Dedrichsu. Salt Lake C. '^ White S. M. Co. v. Gordon (Ind.), 24
H. Co. (Utah), 46 Pac. Rep. 656. N. E. Rep. 1053; and see Geer v. Lumber
' 20 Alb. L. J. 4. Co. (Mo.), 34 S. W. Rep. 1099.
§ 882.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 805
being for the jury.^ The question of admissibility of photographs is one
largely, if not entirely, for the trial judge; ' it is within his discretion to
admit a photograph of a plaintiff in a damage suit, as evidence of the claim-
ant's health and strength at the time of the injury," or to show the effect of
a flood from a dam that had given way/ The rejection of a photograph of
j^remises whose boundaries are in dispute does not furnish a ground of
exception/ Photography is almost indispensable to the expert in the
•enlarged representation of minute objects or to emphasize details ' not easily
recognized by the naked eye. In all cases, either the witness himself or the
photographer, or some one familiar with the locality, should be called to
4;estify that the photograph is a correct likeness or representation of the
original object or locality/
fiSl. Expert Witness should fortify His Opinions with Authority an^
Undisputed Facts. — The expert having made all arrangements for the care-
ful and critical representation of the circumstances, he must next prepare
himself to present his case clearly and forcibly. Although he need not be
familiar with the language of the authors or books he quotes or refers to, he
should be acquainted with the substance and theory of the subject, and
know the volume and page in which it is contained. He should review his
notes and memoranda of his past work and experience, compare it with the
books, reports, and views of other engineers, check them by computations and
-experiments, and use every exertion to determine what is and tv7iat is not
the true merit of the question.
His reasons should be formulated and prepared, for he may or may not
l)e asked to explain the reasons of his opinions.
882. Experts should Seek the Confidence and Respect of the Court. — In his
preparation, the engineer always should have in mind the presentation of plain,
truth in plain English. It should be his aim and effort to gain the respect,
confidence, and good will of the court and jury. His competency and privi-
leges depend upon the impression made upon the court and the discretion
and judgment it may exercise. It should be his highest endeavor to present
his beliefs and opinions by the most convincing proofs, and in a manner that
may be fully comprehended by every member of the court and jury. New
and unaccepted theories, foreign phrases, terms, and titles, and technical dis-
tinctions, cannot have the weight of plain Anglo-Saxon common-sense, or
some simple illustration in every-day life. A sensible, moderate, earnest
' State V. Tioe (Oreff.), 48 Pac. Rep. 367. ^ Marcv v. Barnes, 82 Mass. 161; and sea
5 Verran v. Baird (Mass.), 22 N. E. Rep. 9 Amer. Law Rvw. 173.
«30 [1889]; Cleveland, C, C. & St. L. Ry. "' Nies v. Broadhead, 27 N. Y. Supp. 53.
Co. V. Monaghau (Ills.), 30 N. E. Rep. 869 also Roosevelt H. v. N.Y. El. R. Co., 21 N.
[1892]. Y. Supp. 205; Miller v. L. N. A. & C. Ry.
3 Gilbert v. West End St. Ry. (Mass.), 36 Co. (Ind.), 27 N. E. Rep. 339 [1891]; Leld-
N. E. Rep. 60. lein «. Meyer (Mich.), 55 N. W. Rep. 367;
4 Verran v. Baird (Mass.), 22 N. E. Rep. Hollenbeck v. Rowley, 8 Alien 473 [1864],
630 [1889]. which seems to hold that photographer
* Hollenbeck v. Rowley, 8 Allen 473 must verify the picture under oath.
[1864].
806 ' BNOINEERmO AND ARCHITECTURAL JURISPRUDENCE. [§ 883.
disposition to present one's views plainly and clearly for what they are worth,
a careful avoidance of any eSort to force conviction into the minds of th&
court, is far more effective than any attempts to show how very simple and
plain the one side is and how preposterous and unheard of are the opinions
of the opposite side. A simple acknowledgment that contrary opinions-
exist, and the fact that witness is familiar witli them, has considered and
iveighed both sides of the question, and has come to his conclusion by study
observation, and reasoning, will carry with them much stronger convictions-
than any amount of blustering.
Force cannot exist without counter resistance in mechanics, and this is-
equally true in argument. The moment a witness insists or undertakes to-
impose his views, that moment he arouses resistance in his listeners, which
renders his efforts the more unavailing. Much depends upon the good opin-
ion of the court. It is within its power to permit or deny the engineer the
privilege of testifying, to determine whether the witness comes within the-
j-equirements of an expert, which is in nowise a question for the jury.^
883. Trial Court Determines the Privileges of an Expert Witness. — Th&
3)reliminary question whether a witness offered as an expert has the neces-
sary qualifications is for the court, and is largely within its discretion.*
Unless it appears from the evidence that the trial court's decision was erro-
neous or founded on an error in law, it is conclusive.^
If it be apparent that expert testimony would tend to assist the jury in
coming to a conclusion on the facts, it is not error for the trial court to
admit it.* It has been held no error for the trial judge to refuse to receive
the expert testimony of a professor of civil engineering who has made the law
of moving bodies a study and can tell how far a train will move by its
momentum, as to the distance a train would travel, on a question to contra-
dict the testimony of other witnesses testifying from practical experience,
on appeal.*
The manner and extent to which an expert may refresh his recollections
by references to memoranda or books is also determined by the presiding
judge — a discretion that may be exercised with reference to the circum-
stances of the case and sometimes with reference to the conduct and bearing
of the witness upon the stand.*
In the furtherance of justice, the court may in its discretion depart from
1 Jones t>. Tucker, 41 N. H. 546 [1860]; 983; seealso Santa Cruz v. Enright(Cal.), 30
Mut. F.I. Co. V. Alvord (C. C. A.), 61 Pac. Rep. 197; anc? Chateaugay O. & J. Co.
Fed. Rep. 752. v. Blake, 12 Sup. Ct. Rep. 731. as to the
2 Sneda v. Libera (Minn. ), 68 N. W. Rep. capacity of an ore crusher; Campbell v. Rus-
36; Helfenstein v. Medart (Mo. Supp.). 36 sell, 139 Mas^. 278 [1885]. and cases cited.
S. W. Rep. 863; Beckett i). N. W. Ma- ^ State v. Hendel (Idaho), 35 Pac. Rep.
sonic Aid Ass'n (Minn.). 69 N. W. Rep. 836.
923. ^ Blue v. Aberdeen & V. E. R. Co. (N.
3 Manghan t). Burns Estate (Vt.), 23 Atl. C), 23 S. E. Rep. 275.
•Rep. 583; St. Louis & S. F. Ry. Co. v. Mohnson v. Coles, 21 Minn. 108 [1874];
Bradley, 54 Fed. Rep. 630; Howlnd v. Wabash R. Co. v. Defiance (Ohio), 40 N.
Oakland St. Ry. Co. (Cal.), 42 Pac. Rep. E. Rep. 89.
§ 884.] ENGINEER' 8 AND ARCHITECT'S EMPLOYMENT. 807
the usual order of introducing testimony. It may permit experts to testify
before the establishment of facts by the other witnesses.* It determines the
propriety of questions asked, and it is within its discretion to reject ques-
tions put to witnesses, if in its opinion they do not bear upon the question
at issue. Questions to experts are in a large measure hypothetical and
remote, and are likely to receive a much more liberal consideration under a
good impression on the part of the judge than in the face of distrust and
fear.' After the witness has given his own professional opinion in reference
to what he has seen and heard, or upon hypothetical questions, it is then
within the court's discretion to limit further interrogatories as to what other
scientific men have said on such matters, or in respect to the general teach-
ings of science thereon.'
The extend to which the temper and disposition of a witness may be
shown on cross-examination is largely within the discretion of the trial
court; * and the extent to which it may be pursued to test his memory is
within the discretion of the court.* In cross-examination a witness may be
asked in regard to any interest he may have in the result of the trial, as
affecting his credibility," and he may be asked as to whether the examina-
tions made by him were made in a careful or a superficial manner. Such a
question is not objectionable as substituting the opinion of the witness for
the judgment of the jury on that point. ^
In conclusion, it may be said that too much care cannot be taken in the
preparation for the expert witness-stand, and any man (engineer) who con-
scientiously does his duty will merit all that he is likely to get for his
services.
884. Behavior of Expert Witness in Court — When will Expert Testi-
mony be Admitted. — An expert's duties in court may be embraced in two
classes : (1) The suggestions and promptings he may give to the attorney
in examination of other witnesses, and (2) his oflBces an^ privileges while
upon the stand himself. Little can be said upon the former, as the charac-
ter and amount of assistance must depend upon the character, disposition,
and private ideas of the individuals, and their skill, practice, and methods.
As a general rule, opinions of witnesses are not admissible as evidence;
they must speak as to facts within their knowledge; but upon questions of
skill or science, with which the jury are not familiar, men who have made
the subject-matter of inquiry the object of their particular attention or
study are permitted to give their opinions. They are admissible (1) when
the question involves subjects which are beyond the determination and full
^City of Denver «. Dunsmore, 7 Colo. * Czezewzka t>. Benton-Bellefontaine Ry.
828 [1884]. Co. (Mo. Sup), 25 S. W. Rep. 911.
^Harland v. Lillienthal, 53 N. Y. 438 ^jq-o^iin^^ State (Ala.), 14 So Rep. 7f>7.
[1873] ; People v. Angaberry, 97 N. Y. 501 « Bleukiron v. State (Neb.), 58 N. W.Rep.
[1884]. 587.
« Davis V. United States, 17 Sup. Ct. Rep. '' Northern Pac. R. Co. v. Urlin, 15 Sup.
360. Ct. Rep. 840.
808 ENOINEERINO AND ARGHITECTURAI. JURI8PRU1>ENCE. [§ 885.
understanding of the judge and jurors, and (2) when the witness offered is
fully qualified to give the required information.
The rule determining the subjects upon which experts may testify and
the rules prescribing the qualifications of experts are matters of law, but
whether a witness offered as an expert has those qualifications is a question
of fact to be decided by the court at the trial. ^ We have chiefly to deal
with the law, as we cannot determine the judges' opinions of individual cases
(or person). Courts are inclined to limit the testimony of experts to the
rules now in use, and to confine witnesses to facts in all cases where practi-
cable, and to leave the jury to exercise their judgment and experience upon
the facts proved. Facts may be specifically contradicted, and if witnesses
testify falsely they are liable to punishment for perjury, while opinions may
not be proved positively wrong, and false opi^iions may be given without
fear of punishment.'
The fact that a witness may know more of, or may better comprehend,
the subject than the jury is not sufficient to authorize opinion evidence, but
it must relate to some trade, profession, science, or art in which the expert
has more skill, and can pass better judgment than jurymen of average intel-
ligence." If the facts can be placed before the jury, and they are of such a
nature that jurors generally are as competent to form an opinion in refer-
ence to them and to draw inference from them as experts, then the opinions
of witnesses are not competent, and such evidence should only be received in
case of necessity.' A question which elicits a reply based on a mere arith-
metical calculation is not objectionable as calling for expert testimony.*
If the relation of facts and their probable results can determined with-
out special skill or study, the facts must go to the jury, who will be left to
draw their own conclusions and to form their own opinions.' If the inquiry
relates to a subject which does not require peculiar habits of study in order
to enable a man to understand it, the opinion of skilled witnesses is not
admissible.* The true test is not whether the subject-matter is common or
uncommon, or whether many persons or a few have some knowledge of it,
but whether the witnesses offered as experts have any peculiar knowledge or
experience, not common to the world, which renders their opinions founded
on such knowledge any aid to the court or jury in determining the ques-
tions at issue.
885. Some Questions Held Not to Require Experts to Determine. — It
has been held that a question " whether, under circumstances proven, it was
a proper time to burn brush," was not a question requiring the assistance of
1 Jones V. Tucker. 41 N. H. 546. App.), 41 N. E. Rep. 78.
sFurgeson v, Habbell, 97 N. Y. 507 ' Belair « 0. «& N. W. R. Co.. 43 la. 662;
[1884]. Van Wyclen v. City of B., 118 N. Y. 424
s Staff ords v. City of Oskaloosa,64 la. 251 [1890].
[1885]. Overby ■». Chesapeake & O. Ry. ® Overby v. Chesapeake & O. Ry. Co.,
Co. (W. Va.), 16 S. E. Rep. 813. (W. Va.), 16 S. E. Rep. 813.
4 Witmark t?, Manhattan Ry. Co. (N. Y. . .
§ 885.] ENGINEER'S AND ARCHITECTS EMPLOYMENT. 809
experts,' even though the witness offered had many years of experience in
clearing land by fire, and had observed the effect of wind on fires, in the local-
ity in question, and had visited the land and made a plan of it. On the
same ground opinion evidence has been rejected as to whether a horse should
have been tied,* whether stairs were located in a safe place in a building,' as
to the effect of water in disintegrating mortar of a wall,* as to the value of
real estate,^ whether a survey was actually located on the ground or was
made in the office from plats,' and whether wood was, or was not, rotten.'
Generally questions of value, as of a horse or land, do not require expert
knowledge. Witnesses who are not architects, builders, or contractors may
be allowed to state their opinions as to the worth of a building from a gen-
eral knowledge of it without being able to estimate the value of any of the
materials entering into its construction.®
It has been held not to require an expert to prove that a wall might have
cracked as a result of defects in the wall and foundations to show that the
wall was defective; ' whether boards piled in a certain manner will protect
a cargo of perishable freight; '° if a certain arrangement of machinery is
dangerous; " as to the safety and fitness of a belt-fastening when a piece of
the belt and the fastenings are before the jury; ^^ as to how much limestone
is beneath a railroad and its value per ton;" as to what hard-pan is and
whether any was found;" as to how much a man can improve his hand-
writing in a short time." In determining the explosive character of dust in
a bin, a chemist, not shown to have had any experience with the same kind
of dust outside of his laboratory, is not competent to testify that, if fire
came in contact with it, an explosion would occur."
Witnesses cannot give any opinions as to the legal effect of documents
or events," nor will their opinion be received as to the amount of damages
suffered in an action for damages;" nor as to whether a certain ailment
would bring to a man the knowledge that he was not in perfect health."
J Furgeson «. Hubbell, 97 N. Y. 507. E. Rep. 952 [1887].
2 Stone «. Bishop (Vt.), 32 Rept'r. 319 " Freeburg v. St. Paul Plow Works
[1886]. (Minn.). 50 N. W. Rep. 1026; Kaufman v.
3 Underwood X). Waldron, 33 Mich. 232 Maier (Cal.), 29 Pac. Rep. 481.
[1876]. ^2 Harley v. Buffalo C. Manfg. Co. (N.
^Naughton v. Stagg, 4 Mo. App. 271 Y. App), 36 N. E. Rep. 813.
[1877]. ^» Reading & P. R. Co. v. Balthaser (Pa.),
5 Schwander v. Birge, 46 Hun 66. 13 Atl. Rep. 294 [1888].
•Reast V. Donald (Tex.), 19 S. W. Rep. i* Currier r. B. & M. R. R., 34 K K.
795 498.
'' Reynolds v. Van Beuren, 31 N. Y. '* McKeone v. Barnes, 108 Mass. 344
Siipp. 827. [1871].
« Spvinfffield Fire & Marine Ins. Co. v. '« Shnfeldt v. Searing. 59 111. App. 341.
Payne (Kan Sup.), 46 Pac. Rep. 315; but " Thompson t). Brannin (Ky.), 21 S. W.
see Little Rock, etc., Ry. Co. v. Alister Rep. 1057.
(Ark.). 34 8. W. Rep. 82 ; and Joske v. '^ Tingley t>. City of Providence, 8 R. I.
Pleasants (Tex. Civ. App.), 39 S. W. Rep. 493; affirmed. Brown v. Providence R. Co.,
. 586 [1897]. 12 R. I. 238 [1879].
9 Turner v. Haar (Mo.), 21 S. W. Rep. '» Mut. L. Ins. Co. of N. Y. v. Simpson
737. (Tex.), 28 S. W. Rep, 837.
»° Schwinger v. Raymond (N. Y.), UN.
810 ENOINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 886.
886. Expert Cannot Determine Questions which the Jury are to Decide.
— The opinion of witnesses upon the precise questions the jury is to deter-
mine is competent only when the nature of the case is such that facts can-
not be stated or described to the jury in such a manner as to enable tliem
to form an accurate judgment thereon and no better evidence than such
opinions is attainable/ The object of all questions to experts should be to
obtain their opinions as to the matter of skill or science which is in con-
troversy, and at the same time to exclude their opinions as to the effect of
the evidence in establishing controverted facts. Questions that require the
witness to draw conclusions of fact should be excluded." Opinions cannot
be asked upon facts or questions that are to be determined by the judge or
jury, but experts may give scientific opinions, under an assumption of facts
similar to or identical with those presented in the case.' Such questions
are termed hypothetical, the witness being asked if certain facts testified to
are true, if he can form an opinion, and what his opinion is.'' The opinion
of witnesses cannot be asked directly upon the circumstances of the case
being tried, but hypothetical cases very similar may be described and the
opinion of the expert asked upon such hypothetical case.* So when the
question to be determined was whether the state or its employees were
negligent in making changes in a bridge, a question to the person who built
it whether he "left the bridge, in his judgment, safe for the ordinary uses
of a highway bridge," was held inadmissible, as he was thereby permitted
to determine the question which was at issue and to be decided by the
board (jury). And whei;e the negligence of the party injured by the fall of
the bridge was at issue, it was held improper to admit the testimony of an
engineer that the load was excessive and that the stones were negligently
united and moved over the bridge, though it would have been proper to have
admitted him to testify to the supporting power of the bridge or any one of its
panels or any one of its stringers/ So where a scaffold has given way, a witness
should not be allowed to testify as to whether, in his opinion, the scaffold was
" put up right," ' though he may, as an expert, show the effect of a knot or
cross-grain upon the strength of a timber supporting the scaffold/ Where
the question at issue is the faulty construction of a railroad, an engineer,
testifying as to the construction of the track and the probability of deposits
of sand thereon in rainy weather, could not, on cross-examination, state
» Van Wycklin v. City of Brooklyn, 118 ^ The C. R. J. & P. R. R. Co. v. Moffit,
N. y. 424 [1890]: Pacbeco v. Judson Mfg. 75 111. 524.
Co. (Cal.), 45 Pac. Rep. 833; Ewing v. ^ McDonald v. State (N. Y.I, 27 N. E.
Goode (C. C), 78 Fed. Rep. 442. Rep. 358 [1891]; Eastman v. State. 27 N".
2 Hunt D. Lowell Gas Lt. Co., 8 Allen E. Rep. 358 ; Hughes v. Muscatine Co., 44
lfi9; B. & L. Tpke. Co. v. Cassell, 66 Md. Iowa 672.
419 [1886]; Butleru. Chicago, B. & Q. R. « Mauer v. Ferguson. 17 N. Y. Supp.
Co., 54 N. W. Rep. 208; Yeaw v. Williams 349.
(R. I.). 23 Atl. Rep, 33 [1892]; Mauer v. ' Boettger v. Scherpe & K. A. I. Co.
Ferguson, 17 K Y. Supp. 349. (Mo.), 27 S W. Rep. 466.
' Rogers' Expert Testimony 39.
§887.] ENOINEEU'S AND ARCHITECTS EMPLOYMENT. 811
that the engineers on the road were all aware of that fact, this being a mere
inference.*
887. Hypothetical Questions may be Asked of an Expert Witness. — The
hypothetical question must not call for an inference which is within the
province of the jury to draw.' The witness should not be called on for his
opinion on disputed questions of fact, or as to the credibility of any of the
witnesses.' A witness is not to be asked if he believes another told the
truth. An opinion is worth nothing as against absolute knowledge, fact,
or law, and the expert should furnish the facts on which his opinion is
founded. In asking questions, the facts should be clearly stated, and the
question should be clearly within the expert's special knowledge. If ques-
tion is clearly within expert's special knowledge, you can sometimes ask the
very point which is to be decided. The facts assumed need not have been
proved, nor can the question be objected to on the ground that the facts
assumed are not true.* The testimony offered should, however, establish
every fact embraced in a hypothetical question, or it may be objected to
and the jury be instructed to disregard that part of the evidence.
It is error to receive answers of expert witnesses to hypothetical ques-
tions which assume the existence of facts of which no evidence is offered;*
but any facts may be assumed which the evidence tends to establish.' If
the engineer has heard or read the evidence, or is familiar with the facts of
the case, he may be asked his opinion on the assumption that they are true.
If the facts are not disputed, the question should include them all. The
facts upon which an opinion is based must always be laid before the court
and jury. This must be done in order that the jury may judge for them-
selves, and for the further reason that other experts may be called to con-
trovert the opinion.' It is erroneous to permit a witness to be asked to
state his opinion, based on his recollection of the testimony of another wit-
ness." The assumed facts should be stated hypothetically in the ques-
tion. An expert bridge-builder has been properly allowed to give his
opinion as to the sufficiency of a timber like unto one that broke in a
staging.*
Some courts have held that such questions should state all the facts,"
while others have allowed questions that embrace facts deducible from the
evidence," and others have permitted questions that assume any facts that
1 Union Pac Ry. Co. v. O'Brien. 16 Sup. W. Rep. 542; Bever v Spanirler (la.), 61
Ct. Rep. 618; Darling v. Thompson N. W. Rep. 1072; Neudeck v. Grand
(MiolK). 65 N. W. Rep. 754. Lodge, 1 Mo. App. 330.
« Prentiss v. Bates (Mich.), 50 N. W. ' Frankfort u. Manhattan Ry. Co., 33 N.
Rep. 6,37. y. Supp. 36.
3 Stoddard v. Town of Winchester » Bedford Belt Ry. Co. vt. Palmer (Ind.
(Mass.). 32 K E. Rep. 948. App.), 44 N. E. Rep. 688.
4 Deig V. Moorhead (Ind.), 11 N. E. Rep. » Stanwick v. Butler-Ryan Co. (Wis.),
458 [1887]. 67 N W. Rep. 723.
^ North Amer. Ace. Ass'u v. Woodson '" Prentiss v. Bates (Mich ), 50 N. W.
(C. C. A.), 64 Fed. Rep. 689. Rep. 637.
• Hicks V. Citizens' Ry. Co. (Mo.), 27 S. '* Peopleu. Vanderhof (Mich.), 39 N. W.
812 ENOINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 888.
the evidence fairly tends to prove, thougli fhey may not be fairly proved.'
It has been held not necessary that the hypothetical question propounded
to an expert witness shall embrace all the facts as to the particular subject-
under investigation.' If the facts on which the opinion is based are dis-
puted, their truthfulness may be assumed hypothetically.'
It has been held even that a hypothetical case stated need contain only
Buch facts as tend to support counsel's theory of the case.* Testimony that
a thing has been done three or four times a day for a month will support a
question whether a certain result would follow if a thing had been done as
many as one hundred times.' But an inquiry as to how much water would
be thrown from a certain opening, " under a pressure such as was on the
pumps," was denied, when there was no evidence as to the amount of
pressure.' Generally, an expert witness should not be allowed to testify to
hypothetical questions based upon facts a part of which only have been
proved.' The fact that the names of the parties to the suit are mentioned
in putting hypothetical questions is not objectionable.'
It is safer to embody all the particulars On which his opinion is asked,
though the trial court may in its discretion allow questions to be put in
other form.' Decisions are found which hold that the opinion of an expert
witness must be based on proved or admitted facts, or upon such facts as
are assumed to exist for the purpose of a hypothetical question, and it is
not a sufficient objection to such question that the facts stated therein had
not been put in evidence, nor can it be objected to upon the ground that
the facts assumed are not true.*" In an action for work and labor performed,
it is proper for plaintiff to put to ordinary witnesses hypothetical questions
in regard to the value of the services alleged to have been performed." An
opinion may be asked of a physician as to what would be the result of a
disease in the natural and ordinary course — to wit, that the plaintiff would
never be any better and never be able to strengthen his limbs. ''
888. Witness Acquainted with Facts of Case. — If the engineer has
personal acquaintance with the subject-matter, and a knowledge of the
Rep. 28 [18881: People ©. Durrant (Cal.), M.), 34 Pac. Rep. 544.
48 Pac: Rep. 75 [1897]. » Lee v. Heuman (Tex.), 32 S. W. Rep.
» Hall V. Rankine (Iowa), 54 N. W. Rep. 93.
217 ; Kelly v Perrault (Idaho), 48 Pac. ^ Roreback v. Penna. Co. (Conn.), 20
Rep. 45 [1897]. Atl. Rep. 465 [1890] : In re Miller's Estate,
2 Davidson v. State (Ind. Sup.), 34 N. 26 Pittsb. Leg. J. (N. S.) 428 ; Hammer-
E. Rep 972. burg v. Met. St. Ry. Co., 1 Mo. App. Rep.
'Frankfort v. Manhattan Ry. Co., 33 578.
N. Y. Supp. 36. '° Deig v. Morehead (Ind.), 11 N". E. Rep.
* Bowen v. City of Huntington (W.Va.), 458 [1887] ; see also Baltimore & L. T. Co.
14 S. E. Rep. 217. «• Cassell, 66 Md. 419 [18861.
* K. C, M. & B. R. Co. tJ. Webb (Ala.). '^ Graves «. Pemberton (Ind. App.), 2»
n So. Rep. 888. N. E. Rep. 177.
* Vermillion A. W., etc., Co. v. Vermil- '* Strommv. N Y., L. E. & W.R.Co..9&
lion (S. D ), 61 N. W. Rep. 802. N. Y. 305; see Cole v. Fall Brook C. Co.
' In re Mason, 14 N. Y. Supp. 434 ; (Sup.), 34 N. Y. Supp. 572.
temhle, III. Silver M. & M. Co. v. Roff (N.
§889.] ENGINEER'S AND ARCHITECTS EMPLOYMENT, SIB
faqts and circumstances surrounding it, he may be permitted to give his
opinion directly without any hypothesis, or if there is no dispute as to the
facts, the question may be direct, upon the facts of the case. The facts
must be stated, for even though the witness may have read testimony and
all the facts he cannot be asked for his opinion. There must be a specific
question covering the facts or the assumed facts/
Thus an engineer who has had charge of the erection of a wall may
testify whether or not it was properly and compactly constructed.' If he
has inspected and made a proper investigation of a bridge he may give his
opinion whether the abutments of the bridge were skillfully and properly
placed.' He may testify as to the effect of decay of the bridge timbers
upon the bridge itself, and as to the ordinary life of such timbers as were
used in the bridge,* and as to whether in his opinion the decay set in before
or at the time of the accident, when the inspection was made a year
thereafter, and as to whether a superintendent was qualified.' If the evi-
dence be conflicting, i. e., if the facts are not admitted, then questions must
be put hypothetically.
In engineering cases, and to engineering experts, questions may usually
be put directly. Generally, the circumstances are such that an engineer may
visit the scene of the difficulty and investigate the facts for himself; ' but a
hypothetical question put to an expert witness, calling upon him to take
into account his own personal knowledge of facts, is not permissible.' If
he has inspected the work or the wreck, and has qualified himself by stating
the facts upon which his opinion is based, his testimony may be admitted
even when he is not an expert.®
889. Weight and Value of an Expert's Testimony is Determined by
Jury. — Although it is the office of the judge to determine who are experts^
what are proper questions, and how they be put, yet the truthfulness^
weight, and importance of his testimony is decided by the jury. It is for
them to determine from the facts, the conduct and behavior of the witness^
how much to believe and what to believe.* The judgments of witnesses
are not as a matter of law to be accepted by the jury in the place of their
own decisions. Juries are not precluded from exercising their own ideas
Wn r« Snelling's Will (N. Y.), 32 N. E. iels (Tex.), 28 S. W. Rep. 548. failure
Rep. 1006. of a bridge ; accord. Denver. T. & Ft. W.
« Pullman v. Corning. 9 N. Y. 93. Ry. Co. v. Pulaski I. D. Co. (Colo.), 35
«Conrad«. Trustees, 16 N.Y.I 58 [18571. Pac. Rep. 910. bridge abutments ob-
* Morgan v. Fremont Co. (la.), 61 N. W. struoting an irrigation ditch ; Helfen.stein
Rep. 231. V. Medart (Mo. Sup.), 36 S. W. Rep. 868,
* Washington C. & A. T'p'ke v. Case speed of a bursted grindstone ; Sneda v.
(Md.). 30 All. Ren. 571; Buckalewt). Ten- Libera (Minn.). 68 N. W. Rep. 36. thick-
nessee, C, I. & R. Co. (Ala.), 20 So. Rep. ness and strength of a cistern wall ; Egnn
606. V. Dry Dock, etc., R. Co. (Sup ). 42 N. Y.
^ O'Keefe v. St. Francis' Church, 59 Supp. 188, time to corrode a boiler.
Conn. 551 [1890]. 9 Spring Co. v. Edgar, 99 U. S. 645
^ Bramble v. Hunt, 22 N. Y. Supp. 842. [1878].
* Galveston, H. & S. A. Ry. Co. v. Dan-
814 ENOINEEUINO AND ARCHITECTURAL JURISPRUDENCE. [§ 890.
and knowledge upon the subject; it is their province to weigh the opinions
offered, ihe time devoted, and other circumstances, and to apply to them
their own experience and knowledge of the character of such questions.'
The opinions of experts cannot be substituted for the common-sense and
judgment of the jury; the purpose of their own introduction is to supple-
ment the general knowledge and experience of the jury.'' It is therefore
error for a judge to charge a jury that expert testimony should be met by
other expert testimony, and if it is not, it (the jury) should regard their
opinion as correct. Such evidence is to be weighed like other testimony
by the jury, and a defendant to a suit is not bound to employ rebutting
experts.'
890. Expert Witness must Not Try to Determine Questions whose Deter-
mination Is for the Court or Jury. — The construction of written instru-
ments is for the court or jury, and not for the surveyor or engineer (wit-
ness); the fact that a surveyor has scaled the map by which land is
described, and found it incorrect, cannot be admitted to prove title to land
in dispute.* Nor can the opinion of other witnesses be admitted to show tho
true meaning and location of boundary lines in dispute."* Or, in the lan-
guage of the court, " Experts cannot be called to give their opinions on sub-
jects of this character. Witnesses are competent to show lines and measure--
ments, but the construction of written instruments is for tlie court- alone." •
Although a surveyor may in some instances be called upon to explain or
account for a mistake in a survey,' or give his opinion as to how he would
locate a tract similar to the one in controversy,® yet he may not give his own
construction of the description and survey, nor determine what are the con-
trolling calls of the deed.' Though his evidence may be admitted to aid in
locating the land by the description in the deed,'" he cannot determine the
location of a tract according to a description when it is a duty devolving
upon a jury." He may not testify that there was no conflict, as that ques-
tion is to be determined by the jury." A question whether there were any
marks to show that any persons, other than those mentioned, got any of the
land, when the' surveyor has, as an expert, fully explained a plat, and all
that he saw or could find in regard to the lines therein, calls for witness's
opinion as to facts, and is leading." He is a qualified witness to test and
' Hend v Hargrave, 105 U. S. 45. » Whittesley t. Kelloeg, 28 Mo. 404;
' Leittensdorfer «. Kind's Admx., 7 Colo. Tate v. Fratt (Cal.), 44 Pac Rep. 1061.
436ri884]. loCornwell «. Cornwell, 91 111. 414.
3 People V. Vanderhoof (Mich.), 39 N. [1879]; affirming Oolcord «. Alexander, 67
W. Rep. 28 [1888] ; The Conqueror, 17 111. 584; Ormsby v. Ihrasen, 34 Pa. St.
Sup. Ct. Rep 510; Ewing v. Goode (C. 462.
C), 78 Fed. Rep. 442. " Schultz v. Lindell,30Mo. 310; Blumen-
* Twogood V. Hoyt, 42 Mich. 609. thai v. Roll, 24 Mo. 113; Randolph v.
* Public School V. Risley's Heirs, 40 Mo. Adams, 2 W. Va 519.
856. " Buebee Land Co. c. Brents (Tex. Civ.
* Norment v. Fastnaught, 1 McArthur App.), 31 S. W. Rep. 695.
615 i» Rapley v. Klugh (S. C), 18 S. E. Rep.
' Forbes «. Caruthers, 3 Yeates 527. 680.
8 Farr v. Swan. 2 Pa. St. 245.
§ 891.] ENGINEER'S AND ARCHITECTS EMPLOYMENT, 815
apply data on a map, in determining their sufficiency as guides by which to
ascertain a location.' The interpretation of a contract is for the court,
though it contains technical terms, and it is error to allow an expert wit-
ness to state how he understands it; the expert may explain the meaning
of such terms.^
If skilled in maso'ii work, his testimony is admissible to show the mean-
ing of the terms " mason work " as used in a contract for the construction
of water-works, and whether they include the laying of certain pipes;' and
if a builder, he may testify as to the meaning among mechanics of "smoke-
stack." *
891. dualifications of an Expert — Who may Be an Expert Witness. —
After having determined that the question is one requiring expert testi-
mony, it next becomes necessary to inquire if the witness offered is quali-
fied. To render an opinion admissible, it must first be shown that the wit-
ness possesses superior skill and scientific knowledge in relation to the
question. This must be done before the opinion can be asked. ^ An expert
has been defined as nothing more than a man of experience in the particular
vocation to which the inquiry relates, or as one having peculiar knowledge
or skill in reference to the subject-matter of inquiry, or simply as a person
instructed by experience.® They have been defined as " men of science," '
" persons professionally ® acquainted with the sciences or practice," " " con*
versant with the subject-matter," " " persons of skill," " "experienced per-
sons," " possessed of some particular science or skill respecting the matter in
question."
No precise knowledge is required. It is enough if the witness shows an
Bcquaintance with the subject as to qualify him to ^ive an opinion.'* He is
not incompetent to testify because he has acquired his knowledge from
books, but he must have made the subject of inquiry a professional study
a'nd a calling. It cannot be understood that a lawyer may, by a few weeks'
study of engineering books, qualify himself to testify as an expert engineer,
or vice versa.^^ A witness who testifies that he is a mechanical engineer,
that he graduated several years before from a university, and since then has
been engaged in civil and mechanical engineering; that he has given some
study to the investigation of the strength of grindstones, and the safe rate
of speed at which such stones of various size might be run, and that he
' Grand "R. L & D. R Co. v. Chesebro ' Folkes «. Chadd, 3 Doug. 157.
rMich.\ 43 N. W. Rep. 66 [1889J. * Jones v. Tucker, 41 N. H. 546.
2 Caririll V. Thompson (Minn.), 59 N. W. ^ Strickland on Evidence.
Rep. 638. "> Best on Evidence.
=> Elffin 'D. Joslyn (111.), 26 N. E. Rep. " Rochester v. Chester, 3 N. H. 349, 365.
1090 [1891]. "Peterborough v. Jaffrey, 6 N. H. 462,
* Skelton v. Fenton Elec. L. & P. Co. 464.
(Mich.), 58 N. W. Rep. 609 " Beard v. Kirk. 11 N. H. 397.
* Paffe V. Parker, 40 N. H. 59 [18601. " Terre Haute v. Hudnutt, 112 Ind. 542.
•Louisville, E . & St. L. R. Co. v Don- " Rogers' Expert Test. 28; People «.
n.^gan. Ill Ind. 179; 58 Ala. 290; 92 Ind. Thackery (Mich.), 66N.^W. Rep. 562.
464; 102 Ind. 138.
816 ENQINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 891.
thinks he can state what is a safe rate of speed, is qualified to testify as an.
expert in regard thereto/ Mere opportunities for observation are not suf-
ficient; thus the opinion of a civil engineer on tlie sufficiency of a highway
was held incompetent/ while the opinions of professional road contractors
have been held to be competent.'
An editor of a stock journal was rejected as an expert on diseases of
sheep, having had no practical experience or veterinary practice ; " but per-
sonal experience with and care of stock will qualify a witness.^ A professor of
veterinary medicince, employed for many years by the Department of Agri-
culture in the investigation of diseases of animals, is competent to testify
as to the nature and symptoms of Texas cattle fever. He may state what
districts of Texas are infected with the cattle fever, though he has never
visited those districts, the knowledge gained by him in the correspondence
of the department, and in the investigation of such diseases as to the
places of their origin or prevalence, not being properly hearsay.*
A druggist who did not make an analysis of a compound, and who
was unable to do so, and only judged its character by taste and smell, can-
not testify as to a preparation, and that it contained alcohol ; ^ but a miller
of tweny years' experience, accustomed to analyze flour by a process used
more or less by others, may testify as an expert as to the component parts of
of flour, though he is not a practical chemist. * The objection that expert
witnesses based their opinions of a stated question upon a crude and insuf-
ficient analysis does not affect the admissibility of the evidence, but its suf-
ficiency only.'
The evidence offered through an expert must be confined to the subject-
matter in which he is skilled, experienced, or learned. An engineer cannot
testify as an expert in medicine, nor a painter in regard to the framing of a
building, or its construction/" Nor can a brick and stone mason give an
opinion as to what caused the floors and walls of a building to collapse."
It has therefore been held that a witness familiar with earth dams could not
testify as to a dam built of wood," and that the apparent safety of an
embankment cannot be judged by one who has merely seen it collapse.^'
One who has been a civil and hydraulic engineer for several years is qualified
I Helfenstein v. Medart (Mo. Sup.), 36 S. ' Dane v. State (Tex.), 35 S. W. Rep.
W. Rep. 863. 661.
» Benedict v. City, 44 Wis. 495. « D^vis v. Mills (Mass.), 40 N. E. Rep.
' Taylor v. Town of Monroe, 43 Conn. 852.
43; accord, Bergen Neck Ry. Co. -jj. Pt. ® State «. Martin (S.C.), 25 S. E. Rep. 113.
Breeze F. & J. Co. (N. J.), 30 Atl. Rep. 'oKilbourne v. Jennings, 38 la. 533.
584; Wheeler & W. Mfg. Co. v. Buckout " Peteler Portable Ry. Mfg. Co. v.
(N. J. Sup.). 36 Atl. Rep. 772. Northwestern A. Mfg. Co. (Minn.), 61 N.
4 Rogers' Expert Testimony 33. W. Rep. 1024.
5 Pearson v. Zehr (111.), 29 N. E. Rep. '^ "VVeidekind v. Twolume Co. W. Co.
854; semhle, State v. Dixon (La.), 16 So. (Cal.), 25 Pac. Rep. 311.
Rep. 589. ^'^ Central R. Bkg. Co. v. Kent (Ga.), 10
« Grayson v. Lynch, 16 Sup. Ct. Rep. S. E. Rep. 965.
1064.
§ 891.] ENGINEERS AND ARCHITECT'S EMPLOYMENT,. 817
/
to testify as an expert in matters touching civil and hydraulic engineering/
An engineer who examined a ditch two months after it was abandoned by
the contractors, and found the original stakes, showing the depth of the
ditch, and was able to verify his estimate from such stakes, is competent
to testify to the cost of completing the ditch.' His testimony has been
admitted to prove that stakes were surveyors^ stakes; " that piles of stones
and marks upon trees were monuments of a boundary; * that a particular
lino was marked by government surveyors.^ They have been permitted to
give results of surveys made, and the relative position of the line to exist-
ing monuments, fences, and buildings;" their opinions have been allowed
upon the location of boundary lines which had not previously been officially
located.^ These, however, cannot be allowed if the true location of the
boundary is a question upon which the jury is to pass.* A surveyor may
testify in such a case that in his opinion certain marks upon a tree were
corner or line marks, but he may not testify to his opinion that a particular
tree is the corner of a grant in question.®
Engineers experienced in construction are frequently called, and cases
are frequent where they have given opinions in that branch of engineering.
Examples as to the time required to construct and complete a railroad,' to
show what is a reasonable time in which a contract shall be performed; ^^ as
to the value of the work done,^^ or the cost of construction of a house; ^"^ as to
whether abridge was skillfully constructed with reference to a creek; " as to
the proper size of the base of certain columns; ^* to show the strength of
materials, and to show that a structure was not properly constructed to sus-
tain the weight to which it was subjected ; " to establish that a crack in iron
machinery could have been ascertained in certain ways; '" as a defect in a car-
wheel by the hammer test; ^'^ to prove the faulty construction of a dock; ^" that
in order properly to carry out a construction contract, certain methods of
erection and certain work done were necessary; " and what the rule is as to
constructive measurements."
» Egger v. Rhodes (Cal.), 37 Pac. Rep. '^ Woodruff v. Imp. F. Ins. Co., 83 N.Y.
1037; and see 5 B. & A. 64. 133.
2 McDonald v. Dodge County (Neb.), 60 '^ BgUinger v. N. Y. Central R. Co., 23
K. W. Rep. 366. N. Y. 42.
3 McGrann v. Hamilton (Conn.), 19 Atl. ^* Linch v. Paris L. «fe G. E. Co. (Tex.),
Rep. 376 [1890]. 15 S. W. Rep. 208 [1891].
4 Davis V. Mason, 4 Pick. 156. »5 Oallau v. Bull (Cal.), 45 Pac. Rep. 1017.
5 Barron ^. Cobleigh, 11 N. H. 557; Wal- ^^ Pacheco ?). Judson Mfg. Co. (Cal.),
lace V. Goodall, 18 N. H. 439; 24 Ala. 390. 45 Pac. Rep. 833.
« Messeru. Regunter, 32 la. 312. ^''Pittsburgh, etc., Ry. Co. v. Sheppard
' Kinsley v. Crane, 34 Pa. St. 146. (Ohio Sup.), 46 N. E. Rep. 61.
8 Clegs: t). Fields, 7 Jones' Law (N. C.) 37; '" Munroe v. Godkin (Mich.), 69 N. W.
Tate V. Fratt (Cal.), 44 Pac. Rep. 1061. Rep. 244.
9L. E. & St. L. Ry. Co. v. Donnegan, ^^ Haver «. Tenney, 38 Iowa 80 [1875];
111 Ind 179. see also Hamilton v. Railroad Co., 36
'0 Goddard v. Crefield Mills (C. C. A.), 75 Iowa 31.
Fed. Rep. 818. . 20 Ambler v. Phillips (Pa.), 19 Atl. Rep.
» Crawford v. Wolfe, 29 Iowa 567. 717.
* See Sees. 886 and 890, supra.
818 ENOINEERING AND ARCHITECTUHAL JURISPRUDENCE. [§ 891.
Engineers, architects, and surveyors may in general testify to any opin-
ions which belong peculiarly to their occupation and business.* An engineer
who has acted as such on construction of a work may testify to his opinion
whether it was properly built at a certain point, and whether it was con-
structed in the usual manner; and so may a witness who, though not a civil
engineer, has had experience in railroad construction, and is familiar with
the road;' and an engineer may testify as to the necessary capacity of a
sewer,' or whether a cellar would be water-tight if built according to specifi-
cations.* 4
The rules determining the subjects upon which experts may testify and
the rules prescribing the qualifications of experts are matters of law; but
whether a witness offered as an expert has those qualifications is a question
of fact to be decided by the court at the trial/ The fact that a witness
offered as a chemical expert had abandoned his studies as a chemist and
become a druggist does not render him incompetent,' and the same may be
eaid of an engineer or architect who has given up his professional work for
teaching or writing.
Practical mechanics of many years' experience may testify as to the meas-
urement of masonry,' as to the amount and value of labor, based upon a
^iven state of facts and their personal knowledge to a certain extent of the
work done; ® that a wall though a little out of plumb is just as valuable for
1;he purpose for which it was built; ° and blacksmiths may testify as to the
quality and condition of a piece of iron/"
If a witness is not an expert on the subject of inquiry, he cannot be per-
mitted to give an opinion on the subject. It is error therefore to admit the
opinions of witnesses as to overflow of lands due to railroad embankments,
unless such witnesses have peculiar knowledge of such matters.'* A civil
engineer with a long experience in railroad work, and in the same vicinity,
was held a competent witness to give an opinion as to whether it was pos-
sible for an embankment to back water on to certain lands; *" as was a resi-
dent who for twenty-six years had been familiar with a stream and knew
from observation what had obstructed or would obstruct its flow, though he
was not an expert in building embankments, bridges, and culverts; " and a
witness having twenty years' experience in the construction of railroads to
« Chamberlain v. Dunlop (Sup.), 8 N. Y. ^ gtHes v. Neillsville M. Co. (Wis.), 58
Supp. 125. N. W. Rep. 411.
2 St. L. & T. Ry. V. Johnston (Tex.), 15 ^o L. N. A. & C. R. Co. v. Berkly (Ind.),
S. W. Rep. 104 [1891]. 35 N. E. Rep. 3.
3 Hession v. Wilmington (Del.), 27 Ail. ^^ Gulf C. & S. F. Ry. Co. v. Hepner
Rep. 830. (Tex.), 18 S. W. Rep. 441; K. C. Ft. S. &
•» McNight Stone Co. c. New York M. R. Co. v. Cook (Ark.), 21 S. W. Rep.
(Sup.), 43 N. Y. Supp. 139. 1066.
^ Jones V. Tucker, 41 N. H. 546 [I860]. '« gt. l. I. M. & S. Ry. v. Lyman (Ark.),
« Haas 1). Green (Com. PI.). 27 N. Y. 22 8. W. Rep. 170, 213.
Supp. 347; Bears «. Copley 10 N. Y. 93. i* Ethridge v. San Antonio Ry., etc., Co.
' Shulte V. Hennesy, 40 Iowa 352 [1875]. (Tex.), 39 S. W. Rep. 204.
• Crawford ». Wolf, 29 Iowa 567 1 18701.
§ 891.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 819
liis credit, after describing the manner in which the culvert was constructed,
may testify that it was not properly constructed.' A person whose knowl-
edge of coal veins and overhead and underlying strata is entirely tlieoretical
is not competent to testify as an expert as to the cause of the breaking in of
the roof of a mine which he had never examined, and of which he had no
knowledge except from the testimony of witnesses in the case.''
Where a witness qualifies as an expert, and states that certain indenta-
tions on a drawbar were made by a round instrument, he should be allowed to
state what, in his opinion, that instrument was." An expert engineer may
give his opinion that certain culverts through an embankment would
materially help in draining certain lands;* and that from certain statements
given in the testimony of another engineer there is a certain quantity of
stone in a wall.^
Evidence is admissible as to different methods employed by the profes-
sion, and as to who are standard authors, and their several modes of treat-
ment; • as to what it was worth to build a structure; ^ as to the usual and
proper way of removing paint; * as to the construction, strength, and suffi-
ciency of a building; ' to prove that black means white, in showing a usage
of trade; " that "one ton " was used to include a pile or heap; " that work
on a job was completed as soon as practicable under the circumstances;"
and current prices of materials may be shown by schedule of established
prices in the trade." The reasonable value of professional services as those
of an engineer, architect, or physician, may be shown by an expert in the
same profession." The expert opinion cannot be based upon his knowledge
and acquaintance of the client or patient, or of the latter's circumstances,
but must be founded upon his knowledge of the character of the services.**
The qualifications of such witness to testify as to the value of services may
be tested by the opinions of other experts." An expert carpenter who has
seen only the outside of a building may testify as to its value, upon a descrip
tion of its interior.'*
To determine handwriting an expert may give his opinion that the body
^ Bonner v. Mayfield (Tex.), 18 S. W. Holyoke Mut. Fire Ins. Co. (Mass.), 33 N.
Rep. 305. E. Rep. 572.
^ Lineoski v. Susquehanna Coal Co. (Pa. ^ Turner u. Haar, (Mo ) 21 S. W. Rep.
Sup.), 27 Atl. Rep. 577. 737.
« Galveston H. & S. A. Ry. Co. v. »o Mitchel v. Henry, 15 Ch. D. 181.
Briggs (Tex.), 23 S. W. Rep 503. " Barry v. Bennett, 7 Met. 254.
^Villits V. C. B. & K. C. R. Co. 12 gtUgg ^^ N"eillsville Mill Co. (Wi?.), 58
(Iowa), 55 K W. Rep. 813. N. W. Rep. 411; Chamberlain v. Dunlop
6 Moerling v. Smith (Ind.), 34 N. E. (Sup.), 8 N. Y. Supp. 125.
Rep. 675; see also Vulcanite Paving Co. v. ^'^ Morris «. Columbian Iron Works (Md.),
Ruch(Pa.),'23 Atl. Rep. 555. 25 Atl. Rep. 417.
« Broadhead v. Wiltse, 35 Iowa 429; »* Lee tJ. Heuman (Tex.), 32 S. W. Rep.
citing also 6 Iowa 380, 386, and 30 Iowa 93.
456. '5 Buehler v. Reich (Com. PI.), 18 N. Y.
' O'Keefe v. St. Francis' Church, 59 Supp. 114 [1892].
Conn. 551 [1890] " Pierce v. Boston (Mass.), 41 N. E. Rep.
8 First Cong. Church of Rockland v. 227.
820 ENOINEERINQ AND ARCHITECTURAL JURISPRUDENCE. [§ 892.
and signature of an instrument were written by the same person/ but the
genuineness of a signature cannot be proved by simple comparison.^ The
correctness of the opinion of an expert on handwriting can usually be shown
by ocular demonstration; it should always be accompanied by such demon-
stration.'
A court will not allow an engineer who has planned and superintended
the erection of a culvert to testify that the plan of it was a judicious and
proper one, or that it was a properly constructed one, in an action against
his employers for damages resulting from the washing away of the culvert.*
A non-expert witness should not be allowed to state that, if the timbers
of the bridge had been larger and sound, the bridge would have been suffi-
cient for the uses of the railroad company, except in extraordinary rainfalls.'
Whether a certain kind of wood is strong or weak is a matter of fact, though
it requires knowledge of and experience with such wood, and the exercise of
judgment on such experience, to become aware of the fact."
892. Witness may Employ Practical Illustrations and Experiments. — In
advancing his opinion the engineer is not confined to the mere assertion of
his opinion. He may give his reasons and offer explanations in support of
them. This must be done in his examination-in-chief, and it is important,
for if the witness can clearly represent the reasons of his conclusions, they
are likely to have much more weight with a jury than a mere naked opinion
of a witness, however large his experience or extensive his observation.'
Th.e engineer may employ almost any reasonable means to explain his
reasoning and deductions, such as blackboards,® diagrams,' maps,^" models,
and photographs." In testifying as to a disputed boundary, a surveyor may use
a diagram to illustrate his evidence or make it intelligible to the jury, although
the diagram was not made by himself, and is not shown to contain a per-
fectly accurate description of the lands. A county surveyor testifying as to
a line which he has himself run, may state that it was run correctly, and
may state the facts on which he bases his opinions of its correctness — as
that he found the "corner stake," "bearing- points," '^marked trees," etc."
When the accuracy of a plat is verified by a witness as correctly represent-
ing the relative situation and location of certain lots with reference to other
property, it is not error to allow such a witness, on his examination, to use
the plat in pointing out to the jury such lots, their situation and location."
1 Reese «. Reese, 90 Pa. St. 89 [1879]. W. P. Co. (Me. Sup. Ct.), Jane [1886].
« Bevan v. Atlanta Nat. Bk. (111.), 31 N. « McKay v. Lasher, 121 N. Y. 477
E. Rep. 679; The State v. Owen, 73 Mo. [1890].
440 [1881]. 9 State v. Henderson, 29 W. Va. 147.
^In re Gordon's Will, 26 Atl. Rep. 268. '" Shook t). Pate, 50 Ala. 91 [1874]; Calu-
4 Galena & C. U. R. Co. v. Welch, 24 met Ry. v. Moore (111.), 15 N. E. Rep. 764
111. 31 [I860]. [1888]; Neff v. Cincinnati, 32 Ohio St.
6 Galveston H. & S. A. Ry. Co. v. Dan- 215.
iels (Tex ), 20 S.W. Rep. 9o5. ^^ Rippe v. C. D. & M. R. Co., 23 Minn.
6 Gerbig v. New York, L. E. & W. R. 18 [1876].
Co. (Sup.), 27 N Y. Supp. 594. »» Shook v. Pate, 50 Ala. 91 [1874].
' Le-'s^iston S. M. Co, v. Androscoggin
§ 892.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 821
It has been held error to refuse to permit a diagram of the place to be taken
out by the jury, it having been prepared by a civil engineer who testified to
its correctness and it having been admitted in evidence.'
It is generally a matter within the discretion of the presiding oflBcer of
the court, to what extent practical tests may be employed. It may deter-
mine whether persons, models, and things shall be exhibited in court to the
jury, and the court may properly refuse permission to bring into court such
models, as for example, two planks and a cross-bar,"^ or a section of a human
body to show the exact location of certain parts,^ or a sample of needlework
by a person who has lost her capacity to do such work." There is no rule
requiring a person or thing to be produced or brought into court for exhibi-
tion, nor is it necessary to account for its non-production.* Tlie trial court
may in its discretion permit the jury to go from the court-room and view the
premises," and the court's refusal to permit such excursion is not review-
able on appeal." Where counsel had knowledge of the fact that a part of
the jury had visited the place of the accident, he cannot, in default of ob-
jection at the time of the trial, complain of the misconduct of the jury on
appeal.'^
Plaster casts of a person's mouth and the teeth supposed to fit them,"
impressions of a horse's mouth in wax and plaster,' weapons used and clothes
worn,'" are instances recorded. Courts have permitted chemical tests of the
ink with which a paper has been written," and it has been held an error to
exclude expert testimony showing the appearance of a note under the
microscope, where the jurors could use such microscope for themselves; and
notwithstanding a witness testified that almost daily for five years he had
used a microscope in the examination of handwriting, and that one without
experience could not so use it, though he might if he had intelligence and
judgment as to the use of the different object-glasses.''
Building materials, such as a piece of a column used by a contractor in
the construction of a building, have been admitted in evidence in an action
for breach of contract on part of owner, for not allowing the contractor to
complete the contract because the columns used, were not such as were
required by the contract, nor is it error to allow the jury to take such pieces
» Western & A. R Co. v. Stafford (Ga.), 117 Mass. 123, spots of blood; Herman «.
25 S. E. Rep. 656; accord, Clegg v. Metro- State, 41 N. W. Rep. 171.
politan Ry. Co. (Sup.), 37 N. Y. Supp. ® Board of Conim'rs v. Castetter (Ind.),
130. 33 N. E. Rep. 986; see also 14 Gratt. 448.
2 Mayor v. Pool (Tenn.), 19 S. W. Rep. ' City of Shelbyville v. Brant, 61 111.
S25 ri892]. App. 153.
3 Knowles V. Crampton (Conn.), 11 Atl. * Commonwealth ®. Webster, 5 Cush.
Rep. 593 [1888]. 295.
'* Youn first own Bridge Co. v. Barnes ^ Earle «. Lefler, 46 Hun 9.
(Tenn.). 39 S. W. Rep. 714. " Best's Evdce. (Chamb. Ed.) 198.
6 Gil man ton t). Ham, 38 N. H. 108; King " In re Monroe Estate. 5 N. S. 552.
r. N. Y. Central, etc., R. Co., 72 N. Y. " Bridgman's v. Corey's Estate (Vt.), 20
607; Dickinson v. City of Poughkeepsie, Atl. Rep. 273 [1890].
75 N. Y. 64; Commonwealth t;. Sturtivaut,
822 ENQINEERINO AND ARCHITECTURAL JURISPRUDENCE. [§ 892A
to the jury-room.' The results of practical experiments made, such as the
stopping of a train of cars under the same conditions/ maybe shown in evi-
dence. In another case an expert witness was not allowed to testify that, as
an experiment, he fired a bullet through a plank, to ascertain the size of the
hole made as compared with the bullet.'
892a. Judicial Notice. — Courts frequently take notice of certain noto-
rious facts as being prima facie true and as not needing proof. Some
things are so well known to all that they cannot be denied, but whether or
not the court will take judicial notice may depend largely upon the trial
justice. If self-evident or so notorious as to require no proof, then expert
testimony will not be admitted to prove or disprove them.
The appellate court will not take judicial notice of the rules of the court
below,* of the rules of the county court, ^ or of city ordinances; ' but a city
court may take notice of city ordinances.^ Courts will take judicial notice
of a statute incorporating a town in a certain county,* or that a city is duly
incorporated under the laws of the state."
Courts have taken judicial notice of the following facts, viz. : that a
certain day of a certain month was Sunday;*" that the September term of
the circuit court does not extend beyond October;" of the population of
cities and towns according to the authorized census reports;" of mortality
tables showing the natural expectancy of duration of one's life at a given age.**
A court will take judicial cognizance of the geographical facts and features
of the country, of the existence of a large body of water in the state,'* of its
rivers and mountains," of the boundaries of an incorporated city, and of the
location and course of a river frequently mentioned in the public statutes of
the state; " that a certain county in the state is in an arid region."
The court will take judicial notice of the organization of the Dominion
of Canada;** of the fact that several railroads run into a city;" that the
streets run in certain directions, and where they begin and end ; " how the
1 Liucb V. Paris L. & G. E. Co. (Tex.), E. Rep. 157; State t>. Marion Co. Ct. (Mo.)
15 S. W. Rep. 208 [1891]. 30 8. W. Rep. 103. 31 8. W. Rep. 103.
« Byerst). Nsishville, C. & St. L. Ry. Co. " Kansas City, M. & B. R. Co. v. Phil-
(Tenn.), 29 S. W. Rep. 128. lips (Ala.), 13 So. Rep. 65.
» Evans v. State (Ala.), 19 So. Rep. 535. '* Mossman v. Forrest, 27 Ind. 233;
* Gudgeon v. Casey, 62 111. App. 599. People v. Brooks (Mich.), 59 N. W. Rep.
« Kessel v. O'Sullivan, 60 111. App. 548. 444.
'"Weaver v. Snow, 60 111. App. 624; '^ "Winnepiseogee Lake Co. tj. Young, 40
Shaufelter ij. Baltimore (Md.), 31 Atl. Rep. N. H. 420; Com. v. Desmond, 103 Mass.
439. 445; and see 12 Amer. & Eng. Ency. Law
' City of McPlierson v. Nichols (Kan.), 169.
29 Pac. Rep. 679. " De Baker v. Southern Cal. Ry. Co.
« Stone V. Halstead, 62 Mo. App. 136. (Cal.), 39 Pac. Rep. 610.
^ Penna. Co. v. Horton (Ind. Sup.), 31 " McGhee Irrigating Ditch Co ■». Hudson
N. E Rep. 45. (Tex. Sup.), 22 8. W. Rep. 398.
1^ Brennan v. Vogt (Ala.), 11 So. Rep. '^ Calhoun v. Ross, 60 111. App 309.
893 ; Williamson v. Brandenburg (Ind.), "Texas & P. Ry. Co. v. Black (Tex.), 27
82 N. E. Rep. 1022. 8. W. Rep. 118.
1' Anderson v. Anderson (Ind. Sup.), 40 ^o gkelly v. New York El. R. Co., 27 N.
N. E Rep. 131. Y. Supp. 304.
" Hawkins©. Thomas (Ind. App.), 29 N.
§ 893.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 823:
houses are numbered, and on which side are the odd numbers; ^ but not of
the distance between the various streets of the city of Chicago.'
Courts have taken judicial notice of the government surveys and the legal
subdivision of public lands; * of the initials used in surveys and descriptions; *
of the magnetic variation of a needle from the true meridian; ' that railroad
lines are marked out and the grades fixed by the company's engineer; ' that
trains running upon a railroad are run, directed, and controlled by the
owners of the road; ' that it is within the scope of a section-foreman's
agency to keep both the track and right of way in proper condition;* of
what everybody knows incident to railway travel; ' but not that C. B., & Q.
E. Co. means the Chicago, Burlington and Quincy Kailroad Company ; ^"
that the telephone has become an ordinary medium of communication;" of
the art of photography, the mechanical and chemical processes employed,
and the scientific principles on which they are based, and their results."
The com-t has recognized the fact that a man sitting down on top
of a car could not strike his head against an overhead bridge that was 4
feet 7 inches above the top of the car, for such a man would have to have
been 9 feet high, which was never known ; " that a person with an artificial
leg can stand; ^* that whisky, apple-brandy, and a whisky cocktail are
intoxicating;^^ that kerosene is inflammable," but not that it is refined
coal-oil or earth-oil.^'
These examples are sufficient to show what the courts mayiokQ judicial
notice of, but there can be no certainty that they will do so. The expert
must be prepared to prove anything and everything necessary to the eluci-
dation and explanation of the truth, and, if necessary, by practical example.
All courts have not had the same experience and training and cannot, there-
fore, be equally well informed. One might know less of cocktails and
applejack and more of coal-oil and kerosene, while another might have
lived in many districts of this country and never have seen the common
crude petroleum, or coal-oil.
893. Right to Use Models and Make Tests Rests with Trial Court. —
While illustrations bearing more directly upon engineering are the use of
" Can a van v. Stuyvesant, 37 N. Y. Supp. Iowa 185.
413. » Globe Printing Co. v. Stohl, 23 Mo.
2 North Chicago St. R. Co. v. Cheetham, App. 451.
58 111. App. 318. i» Luke v. Calhoun Co., 52 Ala. 115.
3 See cases 12 Amer. & Eng. Ency. Law " Hunter «. New York, O. & W. Ry.
171. Co. (N. Y.), 23 N. E. Rep. 9.
4 Kile V. Yellowhead, 80 111. 208. '* New Jersey Traction Co. v. Brabban
6 Bryan «. Beckley, Litt. Sel. Cas. (Ky.) (N. J.). 32 Atl. Rep. 217.
91. 15 Schlicht V. State. 56 Ind. 173; Thomas
* Alabama M. Ry. Co. -o. Coskey (Ala.), c. Commonwealth (Va.). 17 S. E. Rep.
9 So. Rep. 202. 788; United States 'o. Ash (D. C), 75 Fed.
' South, etc.. R. Co. v. Pil green, 62 Ala. Rep. 651.
305. 16 Wood «. N. W. Ins. Co., 46 N. Y.
'Mobile & O. R. Co. «. Stinson (Miss.), 421; State v. Hnyes. 78 Mo. 307.
21 So. Rep. 522.' i' Bennett v. N. British Ins. Co., 8 Daly
9 Downie v. Hendrie, 46 Mich. 498. (N. Y.) 471.
10 Accola i>. Chicago, B. & Q. R. Co., 70
S24 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 894.
maps, monuments, and descriptions in deeds as evidence of titles; valuable
evidence furnished by accurate and verified models; instances in which the
jury is taken to view works and premises in question, — the employment of
all these is in general within the discretion of the trial court, and an expert
witness should not, under any circumstances, be surprised if he be refused
the privilege of making practical tests or illustrations. His privileges will
probably depend upon the importance of his tests, the leisure of the court,
iind the disposition, impressions, and intelligence of the court and jury.
894. An Expert's Advice to Fellow Experts. — Before drawing the division
of this subject to a close, the author adds a few maxims recommended by an
eminent engineer of experience as an expert, who concludes : ^
''That the court always understands that an engineer has been pre-
viously advised in regard to questions upon which his direct examination
will be made, and that he has prepared himself by study and reasoning to
^pply to the case in hand all of the scientific principles which are necessary
to elucidate it.
'*It is, therefore, unwise to attempt to conceal from the court that the
engineer has been in consultation with the lawyers upon the side upon
which he has been called, or that he has been paid or is to be paid profes-
-sional prices for his services.
" No provocation on the part of a lawyer will justify an uncourteous
reply, and it is unwise to give back a sharp or witty answer.
"If the lawyer uses improper language in addressing the witness, the
latter may appeal to the judge.
" If questions requiring study and research are put to the witness, he
may reply, ' I have not considered the subject under that aspect sufficiently
to reply,' or 'I shall require a little consideration before I can reply; I will
make a note of your question, and answer it as soon as possible.' " "
*' A witness is often called upon to express an opinion on some subject
which is a matter of exact or approximate measurement and calculation ; it
is often impossible for him to make such calculations accurately in the
presence of a roomfuU of people. His proper course, under such circum-
stances, is to take a note of the question and inform the counsel that he
will make the calculation and give it in writing. In strict law, however, a
witness on the stand is not compelled to make any calculations except those
of a simple and elementary character.^* It is absurd to call upon the
^ William J. McAlpine before the tell the contents of a stomach on the stand.
American Society of Civil Engineers, 1870. Eastham «. Riedell, 125 Mass. 585; and
2 Tliis is justified by the courts, for an Insurance Co. ■». Tobin, 32 Ohio St. 96.
engineer can no more be expected to an- ^ Newlan v. Dunham, 60 111. 233. An
swer questions embodying tedious calcu- expert witness will not be required to give
lations than can a chemist be required to a categorical answer to a question of
* Although an engineer may not be required to make calculations upon the witness-
^tand, he may be required to give the basis upon which they were or should be made. If
it is the intention of the opposition to show that the engineer is unable to mnke the
-estimate and do the necessary calculations, he may be asked if he can make them. — Ed.
§896.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 825
engineer to perform duties of .a professional character when upon the stand
. as a witness or to give professional opinions as it would be for a lawyer,
under the same circumstances, to be called upon for legal opinions upon
some grave question of law."
The distinguished engineer continues by adding, " that for many
years the engineer abroad has been called into a new field of duty, viz.,
that of acting as associate or adviser to the counsel in regard to all profes-
sional (engineering) points of the case."
895. Experts as Assistants in Examination of Witnesses by Attorneys. —
It must be evident that an engineer could not perform such functions with-
out a fair knowledge of the rules and laws of expert testimony, upon which
ground the author will excuse the considerable depth to which he has gone
into the subject. This position has long since become a field of large prac-
tice and high compensation, and no lawyers now venture upon the conduct
of a case involving important engineering or architectural questions without
assistance from engineers or architects. A professional man appointed under
Code Civ. Proc. § 873, to make an examination of a subject-matter of an ac-
tion, is an officer of the court, and should be sworn.^ An attorney has not the
right to be present, nor to have men present, at the physical examination of
his female client, made by order of the court pursuant to Code Civ. Proc.
§ 873, providing for the physical examination of a female plaintiff by a
female physician.'
896. Compensation — Eeward for Services as an Expert Witness. — The
question of extra compensation to an expert who is called to give an opin-
ion which requires the exercise of professional skill and study is one about
which there is no general rule. The decisions are wholly at variance, and
different states have established their own laws. Some have enacted laws
giving extra compensation, and some have denied it altogether. Rhode
Island, North Carolina, and Iowa " have statutes allowing such additional
compensation as the court may determine. Massachusetts courts have
allowed experts to be selected in criminal cases and their compensation to be
paid out of the public treasury.' Indiana, on the other hand, refuses to
acknowledge the right to extra compensation, and requires experts to attend
her courts and give their opinions with no compensation more than that
allowed to any other witness.*
Courts have usually expressed the opinion that services of an expert wit-
ness should be compensated, but the decisions rendered as to whether he
must be remunerated before he testifies are opposed. Physicians have
been committed for contempt of court and fined for refusing to testify until
opinion evidence, which he says he can- ' See Statutes of the States.
not answer cat(^gorlcally. Quinn d. 'Rules of Practice in Chancery, 104
O'Keeffe (Sup.), 41 N. Y. Supp. 116. Mass. 573.
' Lawrence v. Samuels (City Ct.), 44 N. * Indiana Revised Statutes, 1881, p. 94,
Y. Supp. 602. § 504.
826 ENGINEERING AND AROEITECTURAL JURISPRUDENCE. [§ 89^.-
their fees were paid or secured to them/ In Arkansas it has been held
that a physician is not entitled to any more than the regular witness
fees for his expert testimony in respect to a post-mortem examination
he had made.'
In these cases the physician had been employed in attendance of the
case or had made examinations of the subject of inquiry and investiga-
tion. They were criminal cases, in which it was the duty of every man
to lend his efforts in aid of justice ; but one of those cases held that
it made no difference whether the judicial investigation was of a civil
or criminal nature.^ Two decisions were reached in Indiana, where a
physician had been called, not on account of any knowledge of the facts
of the case, or because he had had any connection with it, but merely for
his opinions on professional questions, and it was held that he need not
answer questions involving professional skill and knowledge.* This deci-
sion was, however, opposed by two dissenting judges,^ and can have little
weight to-day from the fact that a statute has been passed opposed to tha
decision.'
It is established law in England that a witness selected and called for his
opinion need not testify without extra compensation. The earlier decisions
in this country followed the English law, and higher courts refused to sanc-
tion penalties and fines imposed for such neglect or refusal to give pro-
fessional opinions, without extra compensation. The skill and knowledge
of experts were regarded as professional services and as property, which
■were no more at the mercy of the public than were the goods of the mer-
chant or the crops of the farmer, and the decision was based upon th&
broad principle of the constitution that " property [services] shall not be
taken for public use without just compensation."
On the same principle, it has been held that interpreters cannot be com-
pelled to serve a court without compensation.'' If a man cannot be com-
pelled to translate the language of a foreign people, how can the scientist
be required to divulge the secrets and interpret the laws of nature ?
On the other hand, it is claimed that the opinion of a skilled witness is
no more his property than is the time of any witness. That a physician's
vocation is that of healing and treating diseases, that of a lawyer is the in-
vestigation, securing, and protection of his clients' rights and property, and
semhle of engineering, that an engineer's professional practice or business is
that of the designing, direction, and construction of works, and that in every
case their opinions are not the object of their studjes, but a necessary result
of their calling.
^ Ex parte Dement, 53 Ala. 389, 5 Tex. Alb. L J. 242.
App. 374, 112 111. 540. « Dills v State, 59 Ind. 15.
2 Clark County t). Kerstan (Ark.), 30 S. 'Indiana Revised Statutes 1881, p. 94,
W. Rep. 1046. § 504.
* Ex parte Dement, 53 Ala. 389. ' Rogers' Expert Testimony 256.
*BuchannanD. State, 59 Ind. 1; s, c, 17
§ 898.] ENGINEER* S AND ARCHITECTS EMPLOYMENT. 827
897. Expert Witness in Civil and Criminal Cases Distinguished. —
"Whether the power of a court iu ciyil cases, to summon an expert to appear,
and to compel him to testify to professional opinions, in cases of which he
has no knowledge of the facts, and with which he has had no connection,
wouhi be upheld by higher courts, cannot be foretold. In criminal cases
^here the law is endeavoring by its every effort to do justice to a man who
has been charged with committing a great crime, it may be that public
policy demands that every citizen should assist in the administration of the
laws of his country ; but in civil cases it is submitted that the necessity
does not exist, and such a usurping of a man's freedom and appropriation
of his services is an outrage, in a professedly free country, not countenanced
by the autocratic governments of Europe.
There is no doubt a strong tendency to maintain this imperious practice
'Of appropriating professional services to public use, but it must be accom-
plished by judicial legislation if extended to cases in which the witness has
no interests nor knowledge. If the witness in the beginning professes his
litter ignorance of the facts of the case, claims to have no knowledge of the
parties or the circumstances of the complaint, it will require an exercise of
power not often manifest to compel him to testify.
898. If Expert Has Knowledge of Facts of Case, He must Testify. — If an
expert takes the stand and without protestation testifies in part to facta
and circumstances, it is quite likely that the court will insist on his answer-
ing questions calling for his professional opinion. This belief is supported
by a recent Illinois case, in which a physician who had attended the vic-
tim, and had testified to some facts of the case, refused to give his profes-
sional opinion as to the causes and results of his investigations until his
professional fee was paid or secured to him. He was fined as for contempt,,
which was supported on appeal.* In Arkansas it has been held that in
criminal cases where no preliminary examination or preparation has been
required, an expert who testifies can demand no compensation in addi-
tion to the usual fees allowed witnesses.' In Colorado court of appeals it
has been held that if the witness testifies in a criminal case in obedience to
a subpoena, without making in advance any demand for special compensation,
he can recover only the statutory witness fees.'
It has been held that where an agreement is made by one to go into
-court at a future day and testify as an expert as to a matter which he had
examined as a civil engineer, he is entitled to recover the reasonable com-
pensation (in addition to the statutory fees) promised him therefor, though
he is afterwards summoned and paid the regular statutory fees, and does
not then claim extra compensation, or give notice that he will make
such claim, and, though testifying, and advising counsel as to questions
» Wright V. The People, 113 Ills. 540 Rep. 451.
[1884]. » Board Com'rs Larimer County v. Lee
« Flinn v. Prairie Co. (Ark.). 29 S. W. (Colo. App.). 33 Pac. Rep. 841.
828 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 899.
to be asked him and other witnesses, he is not asked any question as an
expert/
An expert witness employed by an attorney to testify in a proceeding
may recover compensation therefor from the party represented by the
attorney, in the absence of evidence that the witness ha^ notice of the
limitation of the attorney's authority, or agreed to look solely to the attor-
ney for compensation.''
899. Expert's Knowledge, Experience, and Character may be Inquired
Into. — When an expert takes the stand he must answer under the same
rules as ordinary witnesses, however embarrassing the questions may be.
Not only his character, reputation, and truthfulness may be inquired into and
tested, but he is subject to an examination as to his professional qualifica-
tions, his knowledge, accuracy, and learning.
For the annoyance and risks of injury to a man's business consequent to
undergoing such an examination and for the information thus established,
the courts must declare no compensation is due or they cannot support their
decisions.
900. If Expert Cannot Collect Extra Compensation, then No Extra Prep-
aration Can be Required. — However doubtful the law may be as to extra
compensation to experts for professional opinions, it is certain that if an
expert can demand no more pay than an ordinary witness, so certain is it
that he cannot be compelled to make any more preparation. He may re-
fuse to make investigations, inquiries, or any preparation whatever for the
occasion of the trial. If an engineer, he cannot be required to inspect
works, or to investigate a casualty, or to make estimates and computations;
but whether, having made them with the expectation or under the promise
of compensation, he can be compelled to testify to his results and con-
clusions before being paid, is an unsettled .question. Some inference may be
drawn from a case of a physician who, having made a post-mortem ex-
amination of a body, was compelled to give the results of it without extra
compensation, though the court acknowledged it could not have ordered him
to make the exammation for the purpose of testifying.' Where there has
been no special contract witli the witness, and it is not shown that the re-
fusal to pay him extra compensation would be an injustice, the court trying
the case has no power to order payment of extra fees to the witness.*
901. Legislation is Needed to Improve Expert Testimony. — In con-
clusion, it may be said that the law of expert testimony is m a very un-
satisfactory condition, and sadly needs legislation. It should be the duty of
every engineer to use his efforts to secure that legislation, each in liis own
state.
* Barrus v. Phaneuf (Mass.), 44 N. E. • Rogers' Expert Testimony 261.
Rep. 141. * Board Com'rs Larimer County v. Lee
* Mulligan v. Cannon (Sup.), 41 N. Y. (Colo. App.), 32 Pac. Rep. 841.
Bupp. 379.
§ 901.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT, 829
First, some law should be enacted to abolish the present system of
allowing the parties or their attorneys to select the experts. Secondly, com-
pensation should be allowed, and either fixed by law or power given the
court to determine it. Thirdly, experts should be selected by the court or
appointed by the government, to do away with the present practice of using
experts, on the witness-stand, to win cases.
No men or body of men have more regret that " engineering science
has become a commodity, and that engineers have'' (in some instances)
"become hired advocates'' than engineers themselves; and to their own
efforts chiefly must they look for such a change. A well-directed crusade
by the organized industrial and scientific forces of the country is what
would bring it about. It cannot come too soon. Then only will courts
get true scientific opinions, and the scientific professions free themselves
from the suspicion of bartering their opinions.^
* Upon the subject of Expert Testimony Clemens Herschell, C.E., in Engineering
the engineer is referred for special study News, 1887, vol. 17, pp. 234 et seq ; Inau-
to Lawson's Expert and Opinion Evidence, -gural Address of President Wolcott Gibbs,
by John D. Lawson, 1883; Rogers' Expert National Academy of Sciences, Proceed-
Testimony, by Henry Wade Rogers, 1883; ings 1896.
an article of interest to engineers by
INDEX.
JReferences are to sections.
ABANDONMENT OF WORK (see also
Forfeiture ; Liquidated Dam-
ages) :
By contractor :
Justified by abusive conduct of owner,
688
Justified by owner's neglect to furnish
labor, materials, lines, levels, etc.,
689
Must be intentional to justify a rescis-
sion, 687
Neglect for considerable time, 699
Percentage retained never became due,
731
ABSENCE:
A cause for dismissing an employee, 805
ABSOLUTE ACCURACY;
Not required of a professional man, 829,
858
ABUSIVE CONDUCT :
Of owner, a cause for abandonment of
work by contractor, 688
ABUTTING OWNER :
His property rights in street or way, 266
ACCEPTANCE (see also Offer and
Acceptance) ;
Of offer :
Must be absolute, positive, and un-
conditional, and .in same terms as
offer, 96
Without restating terms of offer, 96
Conditional acceptance is a counter-
offer, 96
Within time fixed for acceptance, 96,
^97
iN'o acceptance amounts to a rejection,
96
By post or telegraph, 95
Is completed by mailing of letter or
delivery of message of acceptance,
95
jJlassachusetts rule that message of ac-
ceptance must be communicated to
offerer, 95.
Letter addressed, stamped, and mailed
is presumed to have been received,
95
ACCEPT ANCE— Cow?27iw«(^.
When one party refuses to sign con-
tract subsequently prepared, 797
Of office :
Time of acceptance limited by terms
of offer, 96. 97
Of plans :
Submitted in competition for prize, 812
Of proposal (see also Award of Con-
tract, 182-183) :
What is an acceptance thatwill create
a binding contract, 183
For public work, 170-171, 182-184
Conditioned on execution of formal
coirtract, 91, 97, 183, 797
For private work, 188
Of works (see also Destruction of
Works ; Works ; Time of Comple-
tion) :
What will amount to, 701
What is not an acceptance, 577
Precautions to be exercised before, 643
Use is not always, 557
Liability before and after, 643
Not a ratification of a void contract, 45
No contract to pay to be implied there-
from, 53
Does not render city liable for work,
45, 53
Which are destroyed before comple-
tion, 675
After it the owner is responsible for
safety of works, 643
And materials, when irrevocable, 276,
388, 390
Contractor should secure engineer's
414, 437. 439
Not a waiver of certificate, 417
Not to be a waiver of defects, 701
By inspectors, that are defective, 467-
469
By engineer, that do not conform to
contract, 370, 381-390, 446
Not a waiver of damages for delay, 675
ACCIDENT (see also Destruction ; Im-
possibility ; Work) :
Custom in guarding against, 627
Causing destruction of works, 674-680
831
832
INDEX.
References are to sections.
ACCOUNT BOOKS :
Use of, in court by officer of company,
878
ACCOUNTING :
Ordered by court when contractor- is
oppressed, 747
ACCOUNT RENDERED :
By builder, checked off by engineer, is
not a certiticale, 477
ACCURACY :
Of lines and levels, contractor to be re-
sponsible for, 299
ACKNOWLEDGMENT :
Of old debt revives it, and forfeits pro-
tection of statute of limitations, 118
By contractor that he has read contract,
793, 794
ACQUAINTANCE :
Ot expert with facts of case, 888
ACQUIESCENCE :
Of owner :
In delay of contractor, 728
To changes, and his liability for ex-
tras, 566, 567
Is not a ratification of unauthorized
contract, 557
ACTION AT LAW :
By contractor, in case of engineer's
fraud, 434-426A
States which allow contractor to recover
in, for fraud of engineer, 426
ACTION BY CONTRACTOR :
Against engineer for want o^ care and
skill, 846-848
ACT OF GOD (see also Destruction
OF Works ; Impossibility) :
Does not relieve contractor for delay in
completion, 326, 671-680
ACT OF INCORPORATION :
Powers of company limited 'to those ex-
pressly cohferred, 44, 138
ACTS:
Of individnal members of board or com-
mittee, ratified or adopted, 557
Which are supposed to be impossible, 669
ACTS OF OWNER:
Or authorized by him, should be lawful,
and the probable consequences not
mischievous, 641
ACT. STATUTORY, see Statute
Laws.
ADDITIONAL BURDENS :
Upon real estate for repairs, 334
ADDITIONS (see also Alterations ;
Changes ; Omissions) :
Engineer's decision in regard to, 392-
394, 398, 399, 592-599
To work, contractor must give notice of
claim for extra, 578-581
ADDITIONS AND OMISSIONS :
Value, etc., left to engineer, 591-596
Rule adopted, should work same way
with regard to both, 549
ADMINISTRATOR, see Executor and
Administrator.
ADMISSIONS :
Of engineer :
To owner, evidence of, 491
To contractor, evidence of, 491, 849a
Do not bind owner, 380
In contractor's absence, cinnot be
shown by him, 481
ADOPTION :
Of unauthorized acts of agent, 652
Of engineer's unautboiized acts, 377
Of acts b}"^ members of a board, 557
ADVANTAGES :
Of letting work by inviting bids, 132
ADVERSE POSSESSION :
Cannot hold, against government, 116
ADVERTISEMENT :
Is not an offer, but a request for offers,.
132
For proposals to do work, 182
Of public work :
Objects to be attained, 92, 182
Form to be adopted, 134, 135
Form of advertisement given, 133-13&-
Made a part of contract, 791, 792
Cannot be changed by verbal expla-
nations, 161
For proposals, mistake in, 135
A condition precedent to letting con-
tract, 135
Necessity of a new one, when all bids-
have been rejected. 174, 175
Not necessary to readvertise when con-
tractor is in default, 174, 175
What work is the subject of, 161
Need not advertise for carriage-hire,
fireworks, garbage removal, renting
offices, 164
ADVICE :
To coniractor when required to do work
outside of contract. 578-581
In regard to control of work to be re-
served by owner. 668
Of one expert to others, 894
ADVISER :
Expert, to attorney, 895
AGENCY :
Proof of agency, 31
May be shown by parol evidence, 123
AGENT (see also Engineer or Archi-
tect ; Public Officer) :
Powers of, how conferred, 29, 56
Authority to contract, 33
Authority must come from principal, 37
Unauthorized acts do not bind principal,.
35
INDEX.
833
References are to sections.
AGENT— Continued.
Private iustruction to, 31-34
Liability of, under personal contract he
has executed, 30-40
Signature of , to a contract. 30
Manner of executing contract to bind
principal, 30
Contract should be made in name of
principal, not of agent, 30-32
Princip il or agent bound, 30
Authority to contract cannot be inferred
from business or family relations, 38
Contracts under seal, made by agent, 33
Who is the principal, 37
Agent's acts, ratified or adopted, 34
With authority to order extra work,
552-558
Desciiption of, in a contract, 30
Of ovrner :
Engineer an agent with special powers,
371-380, 552-554
Engineer is trusted agent of employer,
51 4-5 18a
Owner should suffer from his dis-
honesty, 437
Contractor must know extent of his
powers, 33, 35, 38
Can have no personal interest in work,
42
Can have no secret interest in con-
tractor's contract, 85
Profits made by, belong to owner, 515
Public officer and agent of private
party, 31
Contractor an agent in purchase of
materials, 271-273
AGREEMENTS (see also Contracts) :
The performance of which is impossible,
669, 670
To build, implies a contract to build in
a workmanlike manner, 256-258
To build to suit owner, 340
For extras must be supported by a con-
sideration, 66
To stifle competition, 148
To abide determination of engineer in
all matters held not an arbitration, 348
Not to revoke a submission to arbitra-
tion, 348-350
To keep out of court, not in favor, 344
Aftecting the right of every citizen to
resort to court, 344
Which preclude differences from arising
distinguished from those for the settle-
ment of existing differences, 348
Per rescission :
Are binding though in the nature of
forfeitures, 719, 720
Effect of, on parties' rights, 727
Must have a consideration, 69, 131,
560-563, 719
ALIEN LABOR :
Statute forbidding the importation, 136
ALIEN IjABOB.— Continued.
Employment of, prohibited on public
works, 144
ALL CLAIMS AND DEMANDS :
To be released before final payment, 763
ALLEGATIONS:
That amount to a charge of fraud, 428,
429
ALL POSSIBLE DISPATCH:
Meaning of term, 310
ALL QUESTIONS :
Arising out of work left to engineer's
judgment, 393-396
ALTERATIONS (see also Additions ;
Extra Work; Changes; Omissions):
Of terms of a contract, 69, 122-126
In terms of bid when contract is exe-
cuted, 156
Who may make, in works, 554
May be made by owner or engineer,
551-577
Power to make, and to give work to other
contractors, 583
Provided for, includes only such as or-
dinarily arise, 577
Do not include change of site of struc-
ture, 577
Eflfect of : •
On contract, 570-577
When power to make changes has not
been reserved, 572
On surety. 20-22, 576
On liquidated damages, 324
An excuse for delay, 585
If material, on engineer's powers, 577
Which modify or distinguish contract,
572-577
Contract prevails so far as it can be
traced, 572-577
The written contract will hold as far as
it can be followed, 580
Instances where those made were im-
portant, 580-583
Evidence admissible to prove, 577
Which make work more difficult,
582-587
Extra work due to, 535
Assent to, not an agreement to pay for
extras, 566-568
Works undergoing, destroyed, 676
Of building, which imperils safety of
tenants or guests, 643
Engineer's decision in regard to, 392-
394, 592-599
Their value left to determination of
engineer, 591-596
Engineer may order and determine
value, 591-596
By engineer, in plans and specifications,
388-390
AMBIGUITY (see also Parol Evi-
dence ; Words and Phrases) :
834
INDEX,
Jteferences are to sections.
AMBIGUITY— Continued.
Courts decide if it exists, 619
Cleared up, by parol evidence, 123-126
Explained by custom and usage, 618
There must be, to admit evidence of
usage, 619
Resulting in claims for extras, 599-602
"Road and track," 601
AMERICAN AND ENGLISH DE-
CISIONS, see English and American
Decisions.
AMOUNT OF RECOVERY, see Meas-
ure OF Recovery ; Recovery of Con-
tractor.
AMOUNT TO BE PAID:
Should be the amount determined by the
engineer, 370
ANNULMENT OF CONTRACT, see
Breach ; Rescission ; Termination.
ANY AND ALL BIDS : (see also Bids) :
Right to reject, 171, 172
APPOINTMENT :
Of engineer by court, 354
APPRAISAL (see also Arbitration) :
Distinguished from an arbitration, 348,
496, 525
Engineer's certificate compared with,
496
APPROPRIATIONS :
For the w^ork :
Contractor should walch them, 44-47
Should not be exceeded, 44-47, 556
Excess ratified by legislature, 46, 141
APPROVAL :
Work to be done to approval of em-
ployer, 340
Of materials should be obtained before
using them, 276, 414
Contractor should get engineer's ap-
proval, 414, 437, 439
ARBITRATION (see also Award ;
Engineer or Architect ; Engin-
eer's Certificate, etc.):
What is not un arbitration, 348, 525
Distinguished from an appraisal, 525
What questions may be submitted, 521
Costs of, determined, 533
Costs of, fixed by arbitrators, 533
Rules of, applied to determine engineer's
powers, 389
Laws of, govern submissions to engineer,
445
Begins when work is commenced, 357
Disputes re extra work submitted, 597,
598
Partner cannot bind his copartner to, 522
Partners, joint heirs and joint tenants
bind themselves only, 522,
Elements of. destroyed by clauses em-
ployed in Kew York contracts, 453, 454
ARBITRATION— Continued.
In government contracts, authority to in-
sert, 522
Submission to :
What constitutes a, 524
What it must contain, 524
Under statutory regulations, 524
Question, should be one of doubt, 521
JVlatters of doubt and dispute sub-
mitted, 519-533
Should be in writing, 524
Parol must be clearly established, 524
Binding upon both parties, 445
May be revoked, 519
Is revocable before award is made,
348
Breach of contract to submit to, 221
Be disputes not arisen, not enforceable,
86
Of existing difficulties are encouraged
by courts, 348
Courts favor them, 436
Agreements for, to the exclusion of
\he courts, 339, 344, 345
Specific performance of, 351
Rules to govern agreed upon, 526
Who may be parties to, 522
Who may submit to, 522
By city, to board of health as arbi-
trators, 522
Power to submit to, of cities, towns,
etc., 522
Agent cannot submit. 522
By pergonal representatives, 522
Officer cannot agree to, 522
Agreement for, may be ratified, 522
Compared to a submission to engineer
or architect, 525
Is agreement to abide the decision of
engineer one, 346-366
Of a boundary line, 524
Parties are entitled to a hearing, 498-
498
Meetings, parties should have notice
of, 527
Hearing may be adjourned, 528
Delay caused by one party, 528
ARBITRATORS (see also Engineer or
Architect) :
Who may become, 364-366
Who may act as, 523
Should be named, 519
Courts will not compel them to act, 851
Parties refuse to name, 351
Courts will not appoint, 351
Selected with special reference to per-
sonal skill, 498
' Selected purely on account of skill and
knowledge, 528
Mu>;t act together, 501, 530
All must attend hearing, 530
May consult specialists, 5C1, 520, 581
May take counsel of experts, 529
Surveyor or engineer to assist, 529
INDEX.
835
References are to sections.
ARBITRATORS— Continued.
Power of, to call in umpire, 531
Powers to inquire into case, 851
May conduct hearing, 528
Should receive evidence offered, 493
Must determine questions themselves,
529
Cannot delegate duties, 529
Must decide upon their own knowledge,
530
Cannot decide from knowledge and in-
spection of associates, 530
May go to view premises, 528
Should be disinterested, 364-366
Can have no secret interest in hearing,
343, 364-366
Cannot be a stockholder of either party,
510
Powers at end when award is made,
484-491
Powers to correct award, 483-491
Award must be certain and possible, 532
Testimony re award, 491
Compensation of, how fixed, 533
Given power to determine costs of arbi-
tration, 519
Engineer or architect, 335, 469
Engineer sometimes held not one, 509,
511
Not liable for want of care and skill, 847
Must be dishonest or fraudulent to make
liable to an action, 848
Position an " absurd " one, 848
AROH :
Falls, from defective plans, 239
Falls, must be rebuilt, 678
ARCHITECT (see also Engineer or
Architect) ;
When his acts cause delay, 324
Custom of, to employ surveyors to esti-
mate quantities, 616
Direction and control of, equivalent to
specifications, 244
Liability of, to employer for damages
sustained from use of defective plans,
243
His property in plans and specifications,
.252, 815. 816-822
ARCHITECT'S APPROVAL :
In many cases is the approval of his em-
ployer. 341
ARCHITECT'S CERTIFICATE (see
als<) Certificate;' Engineer's Cer-
PicATE ; Award) :
To be a condition precedent to payment,
336a
ARCHITECT'S DECISION (see also
Engineer's Decision) :
Made final without appeal, 335-337
To be final and conclusive and without
appeal, 335-469
ARCHITECT'S POWERS, see Engi
neer's Powers.
ARCHITECTURE :
Questions in, the subject of expert test!
mouy, 891
ARDENT SPIRITS:
Not to be sold or given away aboui
works, 283
ARTICLE :
Sale of article to be manufactured, 101
Patented, in bids for public work, 163,
164
To be made, completed and destroyed,
675
ASSENT :
An essential element of a contract,
88-97
ASSESSMENTS FOR PUBLIC
WORK:
May be vacated when contract is illegal,
157
ASSIGNABLE :
Contracts :
For personal service, 13-16, 289-296
What is assignable, 14
Building contracts are, 14
Construction contracts are, 14
To build lighthouse, 13
To drill an oil-well, 14
To make gravel roof, 14
For street cleaning, 14
For street construction, 14
Awarded to lowest bidder are, 15, 148
Lien of mechanic or materialman, 16
Moneys not earned, 16
Test of, in N. Y. State, 15
ASSIGNEE :
Interest which he takes, 13-16, 289-296
Named in contract, 11
If named, contract is assignable, 11, 13
Use of term in contract raises presump-
tion that service is not personal, 13
Construction contracts are usually assign-
able, 14
When engineer has been fraudulent, 516
ASSIGNMENT :
What amounts to, 13-16
Invalid and worthless, assignee's loss, 16
Is subject to defenses of obligor, 16
Notice of, should be given, 16
Prohibited by contract, 289-296
Of contract, agreement not to assign bind-
ing, 293
ASSISTANTS :
Delegation of duties to, 499-507
Certificates made by, 413, 417
Cannot make certificate, 473
May not sign the certificate, 503, 504, 507
His estimate and certificate held not suf-
ficient, 504
836
INDEX.
References are to sections.
ASSISTANTS— Continued.
Certificates made by, and payments thfere-
on a waiver, 413, 417
Chief engineer's decision cannot be en-
tirely from reports of subordinates, 505
Power to employ, evidence of predeces-
sor's practice, 558
Recovery for services of, 814
Liability for the acts of, 843
Liability of public officers for acts of,
853
To engineers, to be furnished by con-
tractor, 384
ASSOCIATIONS :
Unincorporated, parties to contract, 48
AS SOON AS POSSIBLE :
Means in a reasonable time, 310
AT ONCE AND WITHOUT DELAY :
Means within reasonable time, 310
ATTACHED TO CONTRACT :
Specifications and plans, 214-220
Written order for extras, 547
ATTORNEYS, see Lawyers.
ATTORNEY-GENERAL :
Intervention of, when contract is i ot let
to lowest bidder, 177, 178
AUCTION SALE :
Memorandum of, not attached tr con-
tract, 215
Compacts to stifle competition, 148
AUTHORITY :
Of engineer (see also Engineet-'s Au-
TuouiTY, Decision, and Power) :
To order extras must be specially con-
ferred, 553
To make alterations, etc., ^3 not au-
thority to order extia<^ except as re-
quired by contract, 552
To make changes, is not DOwer to stop
work, 577
To delegate to assistants 499-507
To contract :
Not proved by businPv.»s or family rela-
tions, 38
Is power to exten^li *ime, 558.
Not authority to submit to arbitration,
522.
Implied, from verier acts, 558
To order extras, established by impli-
cation, ratification, or adoption, 557
558 •
AVERAGE •
When arbitrators cannot agree, 531
AVERAGE ADJUSTER:
Not '.iable for want of care, 849
AWARD ;
Made, binds parties, 356
Practical reason for holding it final, 358-
363
Only one party boutid, 454
AWARD— Continued.
Before made, submission to arbitration
may be revoked, 348
After it is made, submission is irrevo-
cable, 348, 350
What completes it, 348-350
Is complete on delivery, 484, 491
Made, powers of arbitrator at an end,
484-491
Rules as to correction of, by arbitrator,
483—491
Errors in, and statutes re correcting
them, 489
A condition precedent to recovery, 342,
355, 356
Made a condition precedent to recovery,
519
Make it a condition precedent, 525
Distinguished from a certificate, 425
By one arbitrator and umpire, 530
By three arbitrators, requires all to take
part, 478
Must be result of concurrent judgment,
530, 531
Mode of arriving at, 530, 531
Must not be decided by lot or chance,
531
The average, in case of dis!igreement,
531
Notice of, when required, 498
Vitiated by refusal to grant a hearing,
493
Performance of, must be possible, 532
To pay money, not impossible, 532
Performance must be legal, 532
Must be explicit and certain, 532
Must be certain Jind complete, 475
Must dispose of all matters submitted,
475, 532
Testimony re, of arbitrator, 491
AWARD OF CONTRACT:
What constitutes, 176, 182, 183
To lowest bidder, 176-178
Act is discretionary, 171-173
May be deferred, or the project aban-
doned, 171
AWNING :
Contract to erect held void, 76
BAD FAITH :
Which amounts to fraud. 428, 429
Of engineer, for not holding contractor
to strict and ultimate completion of
contract, 442
Use of iniferior materials evidence of,
443
BANKRUPTCY OF CONTRACTOR;
Owner may terminate contract or em.
ploy others to complete works, 711^
717
Title to materials to pass to owner, 273
BANKRUPTS ;
Parties to contract, 27
INDEX.
837
References are to sections.
BEARINGS :
By iiiaguetic needle, 433, 629
BEGINNING :
Of a building, what is, 336
BENCH-MARK:
Mistake in, affecting estimate, 434
BENEFICIARY :
Of a contract, effect of allowing him to
sue on contract, 68
BENEFIT (see also Contracts Implied
IN Law) :
Obligation imposed by law to pay for
benefit conferred, 340
Conferred by part performance, 681
Benefit to promisor a consideration of a
contract, 61
BIAS :
Of engineer against employer, 514-518A
Of expert witnesses, 870
Not confined to experts, 871
BIDS OR PROPOSALS (see also
Bidder ; Competition ; Lowest
Bidder) :
Are l)Ut offers, require accepting to
make contracts, 132
Invitation to make proposals, 132
Mode of entering into contract, 132
Must be complete and definite, 146
Made a part of contract, 791, 792
Plans and specifications a part of, 188
There must be competition, 53, 82, 132,
140, 148, 456
Contract stipulations that destroy com-
petition, 456
System of letting contracts, advantages,
132
Matters to be considered in preparing,
151
Necessity for restrictions and regula-
tions, 137
Conventional form for, 185
Form of instruction to bidders, 145, 151,
165, 167, 170
Must be in form prescribed, 146
Information in regard to awarding and
executing contract, 170
Should be a standard for comparison, 153
Should be compared by a common
standard, 132
Must conform to quantities, specifica-
tions, and stipulation adopted as a
standard, 155, 157
Contract must conform to bid, 140
Contractor can insist on same terms in
contract, 168
Terms of contract must agree with
terms of bid, 156, 157
Should not contain more nor less than
are called for, 155
Bid must conform to instruction to
bidders, as to labor laws and limita-
BIDS OR 'P'RO'POSA.'L^— Continued.
tion, though their legality may be
doubtful, 144
Irregularity in awarding contract not
remedied by subsequent ratification,
141
Informal bids cannot properly be con-
sidered, 146
Must be considered in its entirety, 171
Cannot be compared, after omitting
part of work advertised, 157
When work cannot be estimated or
described, 53
By unit measure, and dimensions
changed, not necessary to readvertise,
175
To furnish materials, 184
To furnish materials, unrestricted, 184
For patented articles, 163, 164
Must be upon a cash basis, 139
Custom to require bond, 615, 629
Work undertaken, by what authority,
136
Contracts let in violation of constitu-
tional requirement that public work.
be let to lowest bidder cannot be
ratified by legislature, 141
Acceptance of, should be conditioned on
execution of formal contract, 91, 97,
183, 797
Certified check required to insure good
faith, 168
Certified check to accompany, 167-169
All bids may be rejected, 171, 172
Right to reject any bid, 171, 172
Right to reject any and all bids, 171,
174
Cannot be recalled, 181
Lowest bidder fails to execute contract,
175
Surety's refusal to qualify, 169
Rejected for being informal, 152
Reconsidered without a new advertise-
ment, 174. 175
Work readvertised or abandoned, 178
Unbalanced bid, not the lowest bid, 54
tJnbalanced, evidence of fraud, 149
Extraordinary bids, evidence of fraud
and collusion, 54
Fraudulent bid renders contract void, 148
For work, for private parties, 186-188
Rights and liabilities of bidders, 132-
185
BIDDERS (see abo Lowest Bidder;
Surety) :
Formalities to be observed, 151, 152
Propriety of certain requirements and
restrictions, 152
Must conform to reasonable require-
ments, 146
Required to name all parties interested,
148
Oath as to truth of statements of bid,
145, 150
838
INDEX.
Meferencea are to sections.
"BlDiyERS— Continued.
la formation for, to prepare bids, 133-140
Information should be full, 154
Need not furnish plans, etc., 154
Should see that terms of contiact agree
with those of bid, 90, 156, 157
Is not beueliled by offering a better ma-
terial or guaranty, 155
Must take materials furnished by state
or city, when included in advertise-
ment, 162
Should verify estimates, 589
Should be invited to the opening of bids,
183
Cannot alter his bid, 140
Restrictions excluding certain persons,
147
Required to possess certain qualifica-
tions, 146
Must have other qualifications than pecu-
niary, 173
In arrears, or default to city, 145, 147
Who acts upon representations of unau-
thorized persous does so at bis peril,
155
Act of awarding contract discretionary,
171-173
When ran lowest bidder compel the
award of contract to himself, 176
Contract to refrain from bidding, 82, 148
BILATERAL CONTRACT (see also
Contracts) :
Both parties are boimd, 93
BINDING EFFECT :
Of stipulation giving engineer power to
determine damages for rescission, 744
BLASTING :
In public way by contractor, liability for
injuries, 645
On one's premises, 643
BLUNDERS, see Mistakes.
BOARD BILLS :
Custom to pay held binding, 627
BOARD, MEMBERS OF :
Must act as a unit, 39, 40, 48, 555-557
BOND:
Form of, in a proposal, 185, Art. 22
To accompany bid, 167-169
May be required of bidder if it is a cus-
tom. 615, 629
Of contractor for indemnity of owner,
638
To owner to indemnify him does not
change owner's relations to injured
party, 638
Reference in, to plans and specifications,
219
For payment of labor and materials, 755
To pay all claims for labor and materials,
765
Required by statute, to protect laborers
and materialmen, 755
BOND— Continued.
For benefit of laborers, who may sue
upon it, 17, 765
BONUS :
For early completion, 326
BOOKS :
Read to the jury, 876
Reading of, to expert witness, 876
Are not evidence of what they contain^
876-878
Use of, by expert witness, 876-878
BORINGS :
To be made by contractor, 286
Engineer liable for neglect to make, 83&
BOUNDARIES :
Agreement with regard to, and statute of
frauds, 106
BOWLING-ALLEY .
Contract to erect, held void, 76
BOYCOTTS:
Briefly referred to, 326, 686
BREACH OF CONTRACT (see also
Default ; Measure of Recovery ;
Recovery of Contractor ; Rescis-
sion ; Termination) :
What will amount to, 681-689
What constitutes, is a question of law,
442
Must go to essence or substance of the
contract, 681
Must go to the root or essence of con-
tract, 722
At the beginning of performance, 681
When only partly performed, 692
After part performance, 681
A suspension of work is not, 683, 684
Delay is not, when liquidated damages
are stipulated, 326
That are unimportant do not justify a
rescission, 687
By lowest bidder on public work, 174,
175
To submit to arbitration, 348-351
Refusal of either party to perform, jus-
tifies a rescission by other party, 681-
688
Four independent breaches, action for,
696
By contractor :
What is not a breach, 722
Because easier and profit-paying work
is omitted, 582
In not paying claims for labor and
materials, 755
By joint contractors, 685
Owner's duty to avoid injury, 704
By ovirner :
Of contract, 681-696
An express repudiation, 682-688
Must amount to a command, 739
By his abusive conduct, 688
INDEX.
839
Jteferenees are to sections.
BREACH OF CONTRACT— Cont'd.
By owner — Continued.
Failure to make specific payments,
686, 687
By failure to furnish materials, labor,
lines, levels, etc , per contract, 689
Must prevent contractor from com-
pleting, to justify a rescission, 687
Advice to contractor, 578-581
Should be promptly recognized by
contractor, 735
Contractor may repudiate contract, or
hold to it. 691
Form of action by contractor 575
Contractor has two lines of action,
690-696
Measure of liability, 681-696
Contractor in default. 697-704
Powers of engineer, 397
Dispenses with engineer's certificate,
440
Engineer's power to fix damages, 596
BREAKS :
After acceptance must be mended by
owner, 446, 468-469
BRIBES :
Of engineer, effect of, 512-518A
BRICKS :
Used, made of poor clay, 277a
Falling from work, liability for injuries
from. 640a, 641
BRICKWORK :
Custom and usage of, 620, 629
BRIDGE :
Built under inspector found defective,
467
Foundation for, over river, w^hen con-
tract was to build to river, 601
Destroyed by a flood, 674
BROKERS :
Agreements to divide profits, 85
Profits made by, out of employer's trans-
action, must be paid over, 515
BUILDERS :
Agreements between, to refrain from
bidding, 82, 148
BUILDER'S ACCOUNT :
Rendered and checked off by engineer
is not a certificate, 477
BUILDER'S FAILURE :
Owner may terminate contract, 711-717
BUILDING (see also Structure ;
Works) :
Commencement of, what is, 326
Contract to erect, to be used for im
moral purposes, 87
Destroyed . new one erected, is not sub-
ject to claims on old, 675
Tied together, one fell, owner liable,
643
BUILDING INSPECTORS :
Of a city, liable for neglect of duty,
839
BURDENS UPON PROPERTY :
Created by liens imposed by unauthor-
ized persons, 768
BURDENSOME STIPULATIONS :
In construction contracts, 455, 456
CARE (see also Engineer or Archi-
tect ; Employee) :
What is ordinaiy care, 643, 644
Required of public ofiUcers in selection
of plan for public improvement, 246-
248
CARE AND SKILL (see ' Want op
Care and Skill) :
Required of a professional man, 826-
837
Required of specialists, 836 .
CARPENTER :
Undertakes only part of works, which
are destroyed, 676
Killed by defective mason-work, 644
CARRIAGE HIRE :
For public oflScers, need not be adver-
tised, 164
CARVING AND CUTTING STONE :
Act relating to, in New York State, 136,
144
CASUALTY :
Destruction of work due to, 671-680
Do not relieve contractor from stipu-
lated damages, 321
CEREMONY :
Attending bids and bidding, 132
CERTIFICATE (see also Award ; En-
gineer's Certificate ; Decision
and Estimate):
Should be made a condition precedent
to owner's liability, 342-345
Not necessary to enable owner to w^ith-
hold liquidated damages, 326
By assistant engineers or architects, 413,
417
Made by a firm of architects, 505
That contractor is negligent, 720
From register of deeds, that no liens are
filed, 760
CERTIFIED CHECK (see also Liqui-
dated Damages ; Bids and
Bidders) :
Bids cannot be withdrawn, 181
To accompany bid, 167, 168
Must accompany bid if stipulated for,
16S, 169
Liquidated damages or penalty, 168
Forfeiture of, for failure to execute
contract, 168
Forfeiture of, cannot be relieved, 168
Deposit returned to bidder and accepted,
not a waiver of right to contract, 183
840
INDEX.
References are to sections.
CHAINING :
Custom to allow for, over uneven land,
t)Oy, 615, 637, 629
CHANC£ :
Award cannot be determined by, 531
CHANGS S (see also Alterations ;
Omissions) :
In written contracts by parol evidence,
122-136
In work :
Effect of, on contract, 570-577
Effect of unauthorized changes on
contract, 235
Verbal* may reduce written to parol
agreement, 574
Which do not destroy contract, 572
Extent to which they may be made,
572-577
Not to violate or vitiate contract, 324
Which extinguish original contract,
572-577
What changes amount to a rescission
of contract, 572-577
Effect of, on powers of engineer, 398,
399
That release surety, 20-22, 576
Affect form of action, 575
Must be made by parties thereto, 555
Cannot be made by engineer, 379, 380,
552-554
Ordered by individual members of a
council or committee, 555-557
Power to make, not authority to stop
work, 577
Authority to make, is not power to
direct mode and manner of doing
work, 666
Right to make, in public work let to
lowest bidder, reserved in contract,
158
In terms of contract so as to differ
from terms of advertisement, can-
not be made safely, 1 57
In the size of structure, 582, 583
Which do away with profit-paying part
of work, 582
• In amount of work, let to lowest bid-
der, 157, 158
By which amount of work is reduced,
566
Liability of person making unauthor-
ized changes, 234, 235
lu plans and specifications by con-
tractor, are at his risk, 242
Must have a consideration, 69
CHARACTER :
Of extra work, left to engineer, 392-396,
592-596
CHARGES :
That amount to fraud, 428, 429
For services of engineer unreasonable,
616
CHARTER (see also Statutes) :
Limitations, 43-47
Limits powers of corporation, 44, 138
Sometimes require a bond from contract-
ors to protect laborers and material-
men, 765
CHARTER POWERS :
Cannot be delegated, 646
CHARTER REQUIREMENTS;
Be lowest bidder, 51
Must be strictly carried out, 51
CHARTS, see Maps and Charts.
CHEAPER MATERIALS :
Used by consent of owner, 568
CHEMIST :
His right to discoveries when an em
ployee, 819
CITIZEN'S DUTY:
To promote justice applied to an expert,
874
CITY (see also Employer ; Ow^ner) :
Its liability :
For mistakes of its officers and ser-
vants, 246-248
For blunders of public officers, 36, 45
For errors of its engineers, 179
For act of its officers in rejecting low-
est bid, 179
For damage for illegal award of con-
tract for public work, 178
When appropriation has been ex-
ceeded, 44
When limit of indebtedness has been
exceeded, 44
For extras without written order. 564-
569
For damage from use of defective
plans, 245-248
For work done under an illegal con-
tract, 143
For safe condition of streets and ways,
645
Its rights to dispose of the materials of
excavation of streets, 266
Must employ experts when it under-
takes work requiring the services of
specialists, 246
CITY ENGINEER:
Liability for mistakes, 858
CITY OFFICERS :
Compared with county officers, 852
CLAIMS :
Contractor to indemnify owner from,
750-754
Of laborers and materialmen disputed,
758
None can be had for work on a chattel
until completion, 675
Doubtful claim a consideration for a new
promise, 69, 131, 563
INDEX
841
References are to sections.
CLASSIFICATION (see also Engi-
neer's Duties, Estimates, and
Powers) :
In regard to, 378, 383-390, 463-468
To be made by eugiueer, 367, 383
Must be accordiug to contract, 383-387
Must be in accordance with contract and
specifications, 370, 382-390
Engineer cannot make a new and inter-
mediate class, 383-385
Prior promise by eogineer to classify in
a certain way, 388-390, 482
CLAUSES, see Contract Stipulations.
CLEARING LAND:
Includes cutting brush, 601
CLERICAL ERROR:
Apparent on face of award, may be cor-
rected, 483
CLUBS :
Parties to contract, 48
COLLISIONS :
Between owner's and contractor's men,
747
COLLUSION (see also Fraud and Col-
lusion) :
Its effect on bids for public work, 148
Of engineer and owner, may relieve con-
tractor from producing ( ertificate , 422-
432, 437
Between engineer and contractor, 120,
121, 516
COMBINATIONS :
Of contractors to lessen rivalry in bid-
ding, 148
To prevent bidding not criminal act,
148
COMMENCEMENT (see also Comple-
tion; Time OF Performance):
Of a building, what is, 326
Of contract work, 300-310
COMMISSIONERS :
Of Public Works :
Not liable for tortious acts of em-
ployees, 853, 859
COMMISSIONS :
To engineer, from contractor, 512-518A
COMMITTEE, MEMBER OF:
Must act as a unit, 39, 40, 48, 555-557
COMMON SENSE :
Reasons for upholding engineer's de-
cisions, 351-863
COMMUNICATIONS :
Between owner and engineer not privi-
leged, 849a
COMPANY OR CORPORATION (see
also Owner ; Parties to Con-
tract) :
As party to contract, 43-48
Capacity of, to contract, 43
COMPANY OR CORPORATION —
Continued.
Powers limited to those conferred by
charier, 43
Contracts, ultra vires, 43
Information in regard to, 37
Who are representatives of, 37
Kelalion of departments of, 5
Cannot subscribe to stock of another
company, 43
Employment of engineer beyond power
conferred by charter, 43
Appropriation exceeded, 44
Officers and agents must protect its in-
terests, 84, 85
Musi furnish competent and honest en-
gineers, 421. 435, 437, 438
Must have certificate made by engineer,
744
Prevents performance dispenses with
certificate, 440
Liable for extras without written order,
564-569
Its liability conditioned on engineer's
ceriilicate, 342, 355
COMPENSATION (see also Employee ;
Wages) :
Of engineer as an arbitrator, 533
Of engineer or architect, 811-814, 860
Of expert witness, recovery, 896
For injuries while riding on a pass, 864
COMPETENT PERSONS :
Owner must employ, 644
Owner's engineer must be, 421 , 435, 437
COMPETITION (see also Bids and Bid-
ders):
Necessary when law requires it, 148
Required for contracts for public work,
456
Required in compliance with statute, 140
Required by statute or charter must ex-
tend to all work, 53, 148
Public must have full benefit of, 140
Secured by inviting proposals, 132
Contracts to stifle, are void, 81, 82, 148
COMPETITIVE PLANS (see also Em-
ployment OF Engineer) :
Lost by express company, 815
Rights of competitors, 812-814
COMPLETED WORK :
Difficulty in estimating, 360, 437
COMPLETE PERFORMANCE :
Not excused by monthly estimates, 779-
781
Usually not required cf contractor,
697-704.
COMPLETION OF WORK (see -also
Time of Completion) :
To satisfaction of owner, 259, 335-347,
406-411
To owner's reasonable satisfaction, 340
842
INDEX.
"References
COMPLETION OF WORK— CowfcZ.
To satisfaction of engineer or architect,
258, 259
Time for, fixed in contract, 300-308
Day named for, a holiday, 310
Time of completion may be changed by
parol agreement, 130
Forbidden by owner, 682-688
Rendered impossible by owner, 670
Delayed, by failure of owner to do his
part, 670
Prevented by misfortune beyond control
of either party, 669, 670, 674
Prevented by law, city, or state, 438
By owner, must not be extravagant, 738
Is bound to use appropriate materials
prepared by contractor, 738
No recovery for work on chattel before,
675
COMPROMISE :
Of a claim, consideration for new prom-
ise, 69, 131, 561-563
COMPTROLLER (see also Public Offi-
CEKS) :
Questions engineer's certificate. 445
Mandamus to compel him to pay on en*
^iiieer's ceriiticate, 445
CONCEALMENT OF INJURY :
Effect on statute of limitations, 119-121
CONCURRENCE :
Of arbitrators in award, 530
CONDEMNING :
Inferior materials and work, 276-282
CONDITIONAL ACCEPTANCE :
Of a bid, written contract to be executed,
183, 797
CONDITIONS AND STIPULATIONS
(see also Contract Stipulations) :
In regard to performance and completion
of work, 165, 166
Should be enforced, 413
Courts cannot modify them. 413
Of contract, that the subject-matter
should exist, 676
CONDITIONS PRECEDENT :
To payment for work, 342
Engineer's decision may be made one,
407-412
When is engineer's decision, 370
Engineer's decision, to liability of owner,
will hold, 414
To pavment, engineer's certificate, 336a,
771-777
Makes liability to pay depend upon prom-
ise to pjiy, and not upon performance
. of work, 342
To payment will not be implied, 416
If intention be clear, it will prevail, 415
May be shown by parol evidence, 123
Language that makes engineer's certifi-
cate one, .410-412, 415
are to sections.
CONDITIONS PRECEDENT— (7(?nrd
Courts unwilling to construe stipulations
as, 411
To an appeal to the courts, 86
Written order for extra work, to liabil-
ity therefor, 545
To liability for extra work must be
strictly performed, 546
Defeated by owner, 438-440
Failure to perform must be pleaded. 413
Engineer's failure or refusal to perform,
439
Engineer's certificate not excused be-
cause of mistakes, 429
What will excuse production of engi-
neer's certificate, 422
Engineer's certificate excused for certain
causes, 418-443
Release of all claims to final payment,
763
Agreements to furnish proof that claims
are paid and no liens tiled, 750-768
CONDUCT :
Of expert on witness stand, 882
CONFIDENTIAL AGENT:
Engineer or architect is not, 849a
CONFLICT :
Between contract and plans and speci-
fications, 225-233
Between contract -and specifications ;
the one followed will control. 580
Between engineer's decision and speci-
fications, 446
CONGRESS :
May ratify invalid contract, 46
CONNECTION :
Between plans and specifications and
contract, 216-219
CONNIVANCE OR FRAUD :
In absence of, contractor not responsi-
ble for defects after acceptance, 469
CONSENT OF SURETIES:
To accompany proposal for work, 169
In form of proposal, 185, art. 19^
CONSIDERATION (see also Con-
tracts) :
Defined and described, 60
As regards the consideration, 61
Essential to a valid contract, 60
Obligation of a contract cannot be as-
sumed for nothing. 60
Must be something of value, 63, 563
Must be legally equivalent to promise,
60, 63,563
Must be commensurate with the obliga-
tion assumed, 63
Adequacy of consideration, 63
It must not be wanting, 65
Promises without consideration are not
binding, 64-67
INDEX.
843
References are to sections.
CONSIDERATION— Continued.
Failure of thy cousitlerutiou, 65
Au obligation to a party cunnot be a
consideration for a new promise to the
same parly, 66, 563, 574
Must be something more than a moral
obligation, 64
Must be lawful, and in keeping with
public policy, 72
Must be fully performed to make prom-
ise biudiug, 70
Must be present, or coexistent with
promise, 67
Promise for a past or future considera-
tion is not binding, 67
Mutual promises are present, 67
Of promises of subscribers to a project,
63
Must come from promisee, 68
Must come from party to whom prom-
ise is made, 68
Compared with subject-matter, 71
Good iu part and in part bad, 70
In part lawful and the rest unlawful, 70
Void or unlawful, 70
For changes and new terms of a con-
tract, 69, 131, 560-563
Subsequent changes must be for a, 69,
131. 560-563
Necessary when contract is performed
on one side, to a rescission or change
in its terms. 69, 131, 561-563
Mutual promises, for changes and modi-
fications in written contract, 131, 561-
563.
Agreements to waive or rescind must
have. 561-563
Misrepresentation and a claim for extra
work a consideration for a promise to
pay extra compensation, 66, 69, 563
Obligation not enforceable because of
infancy, bankruptcy, or statute of
limitations as a consideration, 64
CONSPIRACIES : ,
To prevent bidding, 141
To prevent competition, 148
Between contractor and engineer, 516
CONSTITUTIONALITY :
Of mechanics' lien laws, 765
CONSTRUCTION CONTRACT (see
also CONTKACTS) :
\ Mode of entering into, 92, 132
Form of introduction, 200
Will no! be specifically enforced, 705-
707
CONSTRUCTION OF CONTRACT
(see also Interpretation of Con-
tract) :
Is for the court, 126
Evidence to assist in, 123-126
Lawful construction will be adopted, 70
Rule of, in regard to general and special
provisions, 400
CONSTRUCTION OP CONTRACT—
Goniiriued.
That adopted by parties will control,
580
Influence of custom and usage, 605, 606
CONTEMPT OF COURT :
What is contempt, 859a
Physician in, tor refusing to testify
without extra pay, 896-898
Purging it, how to do it, 859a
CONTENTS, pages xi-xxxv
CONTRACTS (see also Agreements;
Assignments ; Bids and Bidders ;
Changes ; Conditions ; Contract
Stipulations ; Offer and Accept-
ance) :
To indemnify owner, are contracts of
insurance, 638
Should create relation of independent
contractor, 652
Not to be assigned, 289-296
Validity determined by laws of what
place, 58
Used by Departments of Public Works,
New York City, discussed, 447-462
Essential elements of :
Parties to contract, 1-56
Between members of trades-union, 83
Considerations of, 60-70 (see also
Consideration).
Mutual assent an essential element of
a contract, 88-97 (see also Mutual
Assent).
Obligation should be mutual, 402, 720
Unilateral and bilateral, 67
Bilateral, a promise for a promise, 98
Binding on one party only, 340
Obligations of, should not be destroyed
by conditicms, 401-408
Subject-matter of the contract, 71-87
Delivery of contract completes it, 2, 59
Date of contract, its importance, 59
Made on Sunday, 59 (see also Sunday).
Execution of :
Mode of entering into construction
contracts, 132
Should contain all terms of agreement,
122
By mail or telegraph, 95 •
Why in writing, 799
Signed by one party only, 796 (see
also Signature).
Unsigned by either party, 796
Signed by one of two jofnt con-
tractors, 796
Two copies, only one signed, 796
Indeterminate, and statute of frauds,
125
To be executed in triplicate, 791
Signed in haste and excitement, 794
Acknowledgment that contract has
been read, 793, 794
Executed without reading it, 794
844
INDEX.
References are to sections.
CONTRACTS— Continued.
Execution of — Continued.
Not read, which recites that it was
read, 794
Signing of, with full means of learn-
ing its contents, cannot be avoided,
794
Informal, to be reduced to writing
later, 797
Completion of, postponed until draft
of written contract, 91, 97, 183, 797
Complete, though to be reduced to
writing later, 797
Sealed when executed, 799 (see also
!Seals).
Why witnessed, 799
Execution must meet charter require-
ments, 44. 138, 148.
Void or voidable :
Against public policy, 71-87
To do an unlawful act, 71-87
Must not be contrary to statute laws,
75
Must be to perform a lawful act or un-
dertaking, 71-87
Must not facilitate the doing of an un-
lawful act, 75
To commit a crime or misdemeanor, 77
Must not be in contravention of the
law or of judicial morals, 71-87
To erect structures in violation of laws
or ordinances, 76
Must not be to invade property rights,
76
Must not require contractor to commit
a trespass, 76
Must not require the obstruction of a
public way or stream, 76
Must not require contractor to main-
tain a nuisance, 76
Knowledge that suhject-mat'er of con-
tract is unlawful will prevent recov-
ery for performance or breach, 75
Must not have a tendency to injure or
defraud the L^overnmeut, 75
In violation of immigration, labor, or
excise laws, 78
Must not savor of fraud, 419 (see also
Fraud).
•That fraud shall not affect its validity,
invalid, 419
Must not be inconsistent with duties
and obligations of parties, 84
To refrain from workinu' for a com-
pany's interest to the advantage of
others is void, 81
By employee to exercise his influence
adverse to emplo3'er*s interest. 85
To not resort to courts for redress, 86
Inalienable right not the subject of
contracts, 86
Releasing railroad, express, and tele-
graph companies from liability for
injuries, 86
CONTRACTS— Continued.
Void or voidable — Continued.
To stifle prosecution, 74
In contravention of laws requiring-
open and honest competition for
public work, 456
For the perversion of the courts, 74
To influence public officers, 73. 74
For public favor or personal influ
ence with public officeis, 73, 74
For private influence to secure certain
legislation, 73, 74
To share fees of a public office with
an opposing candidate, 73
In restraint of trade, 81
Object must not be to create a monop-
oly, 81
Not to compete are void, 81
To control prices independent of sup-
ply and demand, 81
That promote gambling, 83
Immoral contracts are void, 87
For immoral or indecent purposes, 87
In restraint of.mnrriage, 87
In violation of Sabbath laws, 59, 79
Void iti part only, 159
Valid, jire not aflected by later act of
legislature, 142, 144 (see also Rati-
fication).
Void for irregulaiities, are not made
valid by subsequently rectifying the
illegal acts, 141
Illegal contracts for public work cnn
not be legalized by public officers, 1 41
Illegal contracts may be ratified by
legislature, 46, 141, 142
To lowest bidder :
Charter requirements must be strictly
followed, 739
Corporation's acts beyond its powers,
35, 39-41
Of a public organization must be
within powers conferred by charter,
constitution or act of incorporation,
138
Repairs should not be included at
times, 157, 334
"With party having exclusive fran-
chise, when requind that they be
let to lowest bidder, 164
Must be awarded in the manner re-
quired by law, 44. 138
What is an award. 183
Courts will enjoin illegal award of,
177. 178
Act of awarding contract is discretion-
ary, 171, 172, 173
Must be in same terms as bid, 140
Must include all the work advertised,
157
Bidders for, must be furnished infor-
mation in regard thereto, 154
When quantities and character of
work cannot be determined, 157
INDEX.
845
References are to sections.
CONTRACTS — Continued.
To lowest bidder — Continued.
Execution of, certified check to insure,
167-169
Not to compete or bid. 81, 82, 148
To stifle competitiou, 81, 82, 148
By bidders, to share profits of con-
tract, not enforceable, 148
What it comprises :
What it shall comprise^ 791
Extent of contract. 792
May consist of two or more writings,
216
Should include plans and specifica-
tions, 214
Should refer to plans and specifica-
tions, 215
To make like unto a model, 627
Interpretation (see also Interpreta-
tion) :
Interpreted by a study of all its
clauses, 730
Intention of parties controls, 127
If intention be clear, no explanations
will be received, 122
If doubtful, is construed against party
using them, 230
Interpretation of, is for the court, 126
Terms are not for witness to explain,
126
Interpretation which is legal should
be adopted, 127
Proof of terms of contract. 98
Parol evidence to assist, 124-126
Ambiguous, mads clear by parol evi-
dence, 122-126
Condition of parties si^own >)y parol
evidence to explain terms of, 123
Written contracts cannot be changed
by evidence of previous oral under-
standings, conversations, etc., 122
Independent oral agreements, 130
Later contract, if inconsistent with ear-
lier one, extinguishes it, 573
Written matter prevails over printed,
231, 232
Conflict of. with plans and specifica-
tions, 227-233
Prevails over specifications, 228, 584
Written contract, cannot be changed
by parol evidence, 122
Void or illesral, a subject of. parol evi-
dence, 124-127
Ett'ect of changes on. 570-577
Right to make changes reserved, 158
Effect of unauthorized changes, 235
Should be kept whole, 575
Preserve it intact, 564
Cannot be contradicted by usage, 617,
618 (see also Custom and Usage).
Execution of, not determined by usage,
615
With tradesman, embodies usages of
his trade, 612
CONTRACTS— Continued.
Defining engineer's powers (see also
Engineer or Architect) :
Modified by subsequent agreement,
engineer's powers, 398, 399
Meaning and intention of, to be deter-
mined by engineer, 401-4(i5
To pay for engineer's certificate and
not for work and materials. 342
To build to owner's satisfaction, 340-
343
Is agreement that work shall be to
satisfaction of owner one, 338-343
Rescinded, powers of engineer, 397
Granting engineer power to determine
damages lor rescission, held valid
and binding, 744
Requirements of, in regard to en-
gineer's certificate, 470-480
Usually defines powers and duties of
engineer or architect, 370-390
Can engineer interpret it wrongfully,^
if honest, 404
Performance of (see also Perform-
ance ; Specific Performance ;
Substantial Performance) :
For completed works, must be per-
formed, before payment, 674-67T
(see also Entire Contracts).
Whose performance is impossible, 669^
670
Liability for destruction, 674-680
What is a substantial performance of,
702
Specific performance of, 705-707
Rescission (see also Breach of Con-
tract; Rescission; Termination):
May be rescinded by mutual consent^
719
Cannot be rescinded without liability
for breach, 719
Breach of, by owner, 681-696
Rights and liabilities of parties na
longer defined, 737
Effect of rescission, on liquidated dam-
ages stipulated for failure to com-
plete, 323
Statutes limiting (see also Statute op
Frauds; Statute of Limitations):
Promises to pay contractors' debts,
within statute of frauds, when. 111
Should always be in writing. 101
Required to be in writing by statute
of frauds, 98-111
Performance of which is impossible
within a year, 103-105, 801
Executed, not within statute of frauds,
104
To take down and re-erect a structure
not within statute of frauds, 101
For goods, materials, and merchandise
for more than $50, 98-102
For goods or materials to be manufac-.
tured. 101
846
INDEX.
References are to sections.
CONTRACTS— Continued.
Statutes limiting — Continued.
For an interest in lands within statute
of frauds, 106
For creation, assignment, and surren-
der of estates in land, 109
To pay the debt of another within the
statute of frauds, 110
Of employment (see also Employee) :
What is a performance of contract of
service, 813
For personal service, specific perform-
ance of, 709
Repairs to a building, 10
Construction work, 9, 10
Coat to order, 10
Lighthouse, 9, 13
Author of book, 10, n.
Terminate with death of contractor, 11
For services of engineer, 800-859
Undertaking on part of employee, 811
Determines rights of employee to his
inventions and designs, 819
Implied in law :
To prevent unjust enrichment, 67, 108
To pay for benefit conferred, 340, 697
None implied against public corpora-
tion, 143
None, when the law forbids the con-
tract, 53, 53, 138
Implied contracts to pay for workused
or appropriated would defeat object
of statute requiring competition, 53
Implied by law, when services are so-
licited and accepted, 811
Implied, that owner will see that en-
gineer does his duty, 421, 426, 438
Evidence of value of work, 691
Prices hold for alterations and extras,
when, 572-577
Required, in an action for extra work,
569
CONTRACT FORMS:
The introduction, 3, 200
Designation of parties, 206-207
Mutual agreements'expressed, 203-205
Description of subject-matter, 200-212
CONTRACTOR (see also Independent
Contractor ; Liability ; Post-Con-
tractor ; Recovery of Contract-
or ; Subcontractor) :
When he has followed erroneous lines
given by engineer, 421, 435
Cannot recover for extras ordered by
engineer without he had express au-
thority, 553
In case of engineer's fraud, what he
must allege and prove to recover with-
out certificate, 427
Must allege fraud of engineer in his
complaint, 427
May have relief in a court of equity,
426a
CONTRACTOR— Con tinned.
When his work has become more diffi-
cult and expensive, 678
For work done upon another's section,
602
Must be entitled to payment before he
can demand it, 687
Righc to recover depending upon acts
of public oflficers, 54
No recompense for his labors, prepar-
ing bids, plans, and specifications for
private work, 186
Paid with express understanding that
payment should go to material man on
account of building, 758
Forbidden by owner to continue work,
682-688
Prevented from performing, measure of
recovery, 690-696
In case of breach, has two lines of ac-
tion, 690-696
Must either hold to contract or repudi-
ate it, 691
Should prosecute work until prevented
by some act of owner amounting to a
breach, 719
May rescind contract if owner has
failed to perform, 670
Required to furnish belter n aterials than
called for by contract, 586
When engineer's certificate is kept from
him by order of owner, 438-440
Custom to charge a profit on men and
materials, 616
To be paid cost and a per cent profit, co%t
includes profits of subcontractor, 601
Fares better in American than in Eng-
lish courts, 748
His undertakings :
His undertaking described. 208-212
Warrants that he can do the work in a
workmanlike manner, 256
To understand plans and specifications,
242
Not to take advantage of errors, omis-
sions, and discrepancies in plans and
specifications, 225-233
To employ only skillful, competent
men, 649
Undertakes to employ and keep com-
petent foremen on works, 648
To make good all defective work, 332
If he neglects or refuses to replace de-
fective work, etc., owner mav do so,
278
To guard against defects in founda-
tions, etc., 281
To provide and protect material and
appliances, 260
To preserve and protect works and
materials, 466
To keep works in repair, 327-334
To provide facilities for inspection of
work, 279-280
INDEX.
841
Meferences are to sections.
■CONTRACTOB.— Continued.
To furnlsli weighing and testing ap-
paratus. 287
To provide offices and attendants, 284
To serve notices, secure permits,
licenses, etc., 632, 633
To increase his force in case of delay,
738
Not to interfere with owner's agents
and employees, 302
That delay of others shall not excuse
his delay, 324
To take every precaution to avoid in-
juries, 637
To insure works against fire, floods,
tempests, etc., 672, 673
To do an impossible act, must do it or
answer in damages, 669
To complete by day named, including
altera lions, 585
To prove his claims if engineer goes
wrong, 453
His bond to pay all claims for labor,
etc., 765
To pay claims of laborers and material-
men, 755
To indemnify owner from all claims
for labor and materials, 750-754
To indemnify owner for costs, losses,
etc., 635-646
Disputes claims when required by
contract to pay them before final
settlement, 758
His rights :
May iiave forsworn all his rights, 734
To claim upon old materials, 602
To materials of excavation from pub-
lic street, 266
To possession of works is not a ten-
ancy, 767
May not exclude owner from works,
767
Ordered to quit, need not allege that
he was ready and willing to perform,
682-688
Rights and conduct when ordered to
suspend work, 684
Denied rights reserved to city, 452-456
When he is the lowest bidder, 174, 175
Under orders by individual members
of the board, 39, 555-557
Bis liability :
For defective chimney, 256
For injuries to third persons resulting
from use of defective plans, 243
For defects of subcontractors, 644
For guarantee of sufficiency of plans,
237-248
As a non-judicial officer for negli-
gence in doing duty, as in making
repairs, 854
For unauthorized changes by engineer,
235
For work done by prior contractor, 242
CONTRACTOR— Continued.
His liability — Continued.
For liquidated damages, 311-326
When assured that penalty will not be
demanded, 326
Or owner liable for injury, 636-646
Directly to party injured, 638
Jointly with owner for injuries, 640a,
641
For injuries resulting, 'if he has agreed
to meet such damages, 638
Are not insurers of neighboring estates
against injury, 638
Who were to indenmify owner, need
not be made defendants in a suit
against owner, 638
Cannot be made liable for certain acts,
638
Rights and liabilities when in default,
697-704
For damages suffered by- owner from
breach, 704
For damages when he has voluntarily
disabled himself, 700
Required to do all that is necessary
to accomplish purpose intended, 600
For breach of contract when works
are destroyed, 674-680
May be required to reimburse owner
the expense of completion, 731
For work and materials that have been
inspected, approved, and certified,
467
May be held to terms acquiesced in, 580
As servant or independent contractor,
638
For trespass on adjoining estates, 275
For mistakes of, when he was to lay
out his own work, 839
Delay by him :
Excused for delay, 326
Delayed by failure of owner to do hia
part. 326
Delay caused by others, 324
Delay caused, one to another, 324
Delayed by incompetent and delin-
quent engineers, 734
If acquiesced in by owner, is not a just
cause for rescission, 687
Failure or neglect :
Breach of contract by, 681-689
Not qualified to do work, 615
His failure to pay wages cause of
strike, 326
Refuses to complete, power to require
him to proceed with work, 705
Power of court invoked to require him
to perform, 705-707
His relation to ow^ner :
Should be made independent, 652
An independent contractor or a serv-
ant, 652-668
May be a servant, though referred to
as a contractor, 659
848
INDEX.
Iteferences are to sections.
CONTRACTOR— Continued.
His relation to owner — Continued.
Furnishes workmen to owner, relation
of, to parties, 657
Owner must at his peril select one com-
petent, 644
Party to contract, determined by his
own act, 50
Consideration of promise of subscrib-
ers to pay, 62
His advantage over owner in undertak-
ing work, 651
An agent of owner in purchase of ma-
terials, 271
In difficulties, devices resorted to, 737
Not highly educated, 748
His relation to engineer :
Has no voice in selecting engineer, 341
Should verify estimates of engineer,
589
Is entitled to hearing by engineer,
when, 492-498
Should offer to arbitrate, if stipulated,
519, 595
Should ask for engineer's estimate, etc.,
378-875, 564-568, 785
Must demand engineer's certificate,
414. 437, 439
His recovery without engineer's certifi-
cate, 418-443
He alone bound by engineer's esti-
mate, 447-462
Bound by decision of engineer when
city is not, 447-462
At the mercy of engineer, 402
Should follow directions of engineer
only so far as they are authorized,
403
Must follow contract and specifica-
tions, notwithstanding engineer's or-
ders to the contrary, 388-390
Bound by his conlrnct though esti-
mates are wrong, 841
Action against engineer for want of
care and skill, 846-848
Must prove his declaration of fraud,
gross mistake, etc., 748
Cannot have engineer as a partner,
514-518A
IVIust take notice :
Must see that law Is complied with, 52
Precautions to be exercised, 55, 138
Must keep informed in regard to
work, 52
Must watch proceedings of congress,
legislature. council, or commissioners
re the work. 52
Must watch appropriation, 44-47
Must take notice of powers of agents
and public officers, 33, 85, 38, 44
Must ascertain rights of owner to con-
duct building operations, 275 .
Must have regarii for ordinance
authorizing work, 556
COl^T'RACTOIi— Continued.
Must take notice — Continued.
• His means of obtaining information of
work and parties, 41
Position to assume :
Should refuse to do work not included
in contract, 460
Should not assent to changes not
warranted by express terms of con-
tract, 577-580
Advice, when his rights are invaded,
578-581
Preserves his rights by giving notice
of their invasion, 578-580. 735
Should protest, when he has just
cause. 595
Required to object, protest, and give
notices, 578
Sometimes in precarious position, 578-
Epithets applied to him, 578
Recovery of:
Must prove his loss, to recover it, 696
Profits in other jobs cannot be shown
to lessen damages for owner's
breach, 696
Sometimes required to make reason-
able deductions, for relief from care
and anxiety of work, 695
Sometimes justified in furnishing what
owner has failed to provide, 689
Required to show cost of completion
of works v.hen he has abandoned
them, 731
When a substantial performance, 700
Must make an honest effort to com-
plete, 442, 698. 699
Must not willfully and obstinately-
refuse to complete, 699
CONTRACT STIPULATIONS (see also
Subject of Stipulation) :
Form of introduction, 3, 200
Designation or description of paities, 4
Description of subject-matter. 208-212
Agency, power of agent described, 29
Binding personal lepresentatives, 7
That public officers incur no personal
liability. 789
As to serving of notices, 790
Under seal may be waived by parol,
417 ^
Held void because there is a possibility
it may fail, 357
That written matter shall prevail over
printed, 231
Providing for custody of plans, 249-
251
That ardent spirits shall not be sold
upon works, 283
Should give control of workmen and
manner of doing work to contractor,
656
Interpretation of certain ones, reserving
eontrol and direction of work, 665-
667
INDEX.
849
Iteferences are to sections.
CONTRACT STIPULATIONS— Confd
That owner, city, or company may
or shall :
Occupy portions of site of works, 303
Make alteration, additions, etc., 551
Be indemnified from all claims and
costs, 635, 636
Replace defective work, 328
Retain a certain amount for repairs,
327
Not be responsible for correctness of
preliminary estimates, 588
Question engineer's certificate and re-
quire contractor to determine quan-
tities, etc., of work, 449
Reject certificate if improperly given,
448
Show amount of work to be different
from certificate, 449
Terminate contract in case of default
by contractor, 710-717
That contractor shall :
Kot assign or sublet, 389-292
Comply with all laws and ordinances,
630
Serve all notices, secure all permits,
licenses, etc., 632, 633
Keep foreman on works, 388
Furnish everything, 210-313
Use improved appliances, 211
Make work conform to plans and speci-
fications, 213
Keep the plans and specifications on
works, 250, 251
Guaranty sufficiency of plans, 336
Take no advantage of errors or dis-
crepancies, 335, 236
Prote( t works, etc., from injury, 630,
631
Preserve and protect works and ma-
terials, 466
Assumes risks and dangers, 671
Insure works, 673, 673
Replace poor and defective work, 338
Provide facilities for inspection, 379,
280
Responsible for defective work not-
withstanding inspection or certifi-
cate, 331
Not be relieved from li ibility to fur-
nish proper work and materials by
inspection and approval. 463. 466
Replace condemned materials or owner
may repair and charge to contractor,
278
Determine lines and levels, and be
responsible for accuracy thereof,
399
Provide offices for engineers, 384
Provide closets and lavatories, 285
Provide conveyances for engineers,
284
Furnish helpers to assist in laying out
work, 298
CONTRACT STIPULATIONS— (7on<U
That contractor shall — Continued.
Make tests, borings, and s(>undings,386
Provide weighing and testing ma-
chines, 387
Protect work and premises fi;om liens,
759, 760
Furnish certificate from register of
deeds that no liens have been filed,
760
Furnish proof that all bills on account
of works are paid, 750-754
Pay all claims for labor and material
before payment, 750-754
Indemnify owner from all claims for
labor and materials, 750-754
Make good all damages to works, prop-
erty, and persons, 634-636
Have no action for damages for delay
on part of owner, 307
Not interfere with others doing extra
work, 543, 544
Remove temporary structures and dis-
pose of waste materials, 374
Abide decision of a tribunal which city
repudiates, 449-452
Make repairs to municipal improve-
ments, objectionable, 334
That engineer shall or may :
Determine quantities, 367. 383
Determine quality, character, and
classification, 367, 383
Determine sufficiency and skill with
which work is done, 388
Explain plans and specifications, 325,
226
Determine value of work and mate-
rials, 891
Determine meaning and intention ex-
pressed in contract, 401
Determine all matters, 335-337
Decide all questions, 367
Be sole judge of all matters, 367
Determine every question arising out
of work, 393
Be a referee, powers defined under
different stipulations, 394-399
Adopt interpretation most favorable to
work and owner, 339, 230
Make alterations, additions, and omis-
sions, 551
Order alterations, etc., 534, 551, 571,
592-594
Determine questions as to additions,
omissions, and extra work, 393,
591-599
Determine whether work is or is not
included in contract, 593
Furnish, and contractor preserve, lines
and levels, 397
Proceed ex parte, if interfered with. 347
Have supervision and direction of
work, and may dismiss objectionable
workmen, 647-650
850
INDEX.
Jteferenees are to sections.
CONTRACT STIPULATIONS— Co/i^tZ.
That engineer shall or may — Cont'd.
Determiue what is due contractor on
account of changes and rescission,
743
Delegate certain duties to his assist-
ants, 499
Have certain interests in contract with
employer, 508
He engineer's certificate, decision, and
estimate :
Introduction to clause making en-
gineer's decision Una!, faulty, 369
That liability and recovery shall be
conditioned upon procuring engi-
neer's cerliflcute, 470, 472
That certiticate of engineer shall be a
condition precedent to partial and
final payments, 771-778
That payment shall be conditioned
upon engineer's certificate, 409
That make a condition precedent,
410-412, 415
jyiaking engineer's certificate a condi-
tion precedent, are binding, 414
Should not renounce all remedies at
law or in equity, 345, 406
Engineer's certificate, estimates, deci-
sions, etc., to be conclusive on both
parties to contract, 444
That the engineer's decision shall be
final and conclusive without re-
course or appeal, 335-837
That engineer's decision shall be con-
clusive on contractor, 447
That engineer's decisions and estimates
shall not be questioned upon any
. ground, 418
That certificates inconsistent with con-
tract terms may be rejected, 448
That neither partv shall revoke pow-
ers of engineer, 347
That estimates are approximate only,
588
That progress certificates shall not ex-
cuse defects, 464, 466
That progress certificates shall not ex-
cuse a full performance by con-
tractor, 779-781
That progress certificates shall be sub-
ject to revision in final certificate, 465
Making final certificate conclusive and
binding over progress certificates,
780, 781
That estimate and certificate may be
made without notice to parties, 492
That final certificate may be made
without notice to parties, 465
Providing for selection of arbitrators,
where either party fails to appoint,
519
That doubts and disputes shall be sub-
mitted to two arbitrators and an
umpire, 519
CONTRACT STIPULATIONS— Con<'<l.
Be engineer's certificate, decision, and
estimate — Continued.
That assistants may perform certain
duties, 499
Serve to do away with heavy bonds
that would otherwise be required,
744
In Pennsylvania courts, 744
English and American, in regard to
powers of engineer, '6^4
He commencement and completion :
As to commencement and completion
of work, 300-308
Making time essence of contract and
fixing damages for. delay, 311-314
Fixing lime of performance and de-
fining " working days," 305
Work to be completed by specified
time, though extnts be ordered, 324
That titne for completion may be ex-
tended, 307
That for delays occasioned by acci-
dents, strikes, etc., time may be ex-
tended, 307
That extension of time shall not be a
waiver of right to terminate contract,
725
That work shall or may :
Be done in a workmanlike manner,
253-258
Be performed according to true spirit,
meaning, and intent of plans, etc.,
258
Be prosecuted as directed, 303, 304
Be prosecuted day and niglit, 306
Be delayed or suspended. 740-742
Be suspended in whole or in part with-
out liability for damages, 740
Be pulled down or opened for exami-
nation and inspection, 280
lie materials :
That condemned materials shall be re-
placed, 277
For inspection and rejection of inferior
materials and work, 276-282
Provisions as to who shall furnish and
own materials, 260-264
Provisions for ownership of materials
and plants delivered, 267-273
Re alterations and extra work :
That extra work shall be ordered in
writing, 534, 539-542
That extra work shall be ordered in
writing, price agreed upon, and state-
ments rendered, 539-541
Limiting recovery to contract price,
536
That all claims for extras are waived.
536
That extra work shall be certified to
be for public good, 542
Modified or rescinded by subsequent
agreement, 69, 131, 560
CONTRACT STIPULATIONS— 6<>;i<V^.
Re alterations and extra work — Cont'd.
For alterations, permits what changes,
577
That contract shall not be affected by
alterations, 571
Xhat questions re extra work shall be
submitted to arbitration, 597, 598
That no extra or customary measure-
ments J^hall be allowed, 603, 604
R. payments :
That progress payments shall be made,
769-789
Providing for payment per unit meas-
ure, 782-784
Providing for payment per schedule of
prices, 782-784
Payments postponed until after en-
gineer's certiticate is obtained, 771-
776
That no payment shall be due until
works are completed, 788
Providing for payment after perform-
ance of all stipulations in manner
descril)ed, 785
That final payment shall operate as a
release of all claims, 787
Postponing final payment until all
claims are paid, sometimes required
by statute. 755
That failure to make payments when
due shall not be a just cause for
rescission, 687
For interest on unpaid monthly pay-
ments, 770
That payments, acceptance, nor occu-
pation and use shall not be a waiver
of full performance, 701
That payments shall be made out of
public funds, 789
That all moneys due to owner may be
retained or recovered by action. 786
lie breach, rescission , and termination
of contract :
Termination of contract for cause, 727
Naming damages in case of termina-
tion of contract by owner, 729
That gifts, bribes, or presents shall be
sufficient cause for canceling con-
tract. 513
That if any officer of city or company
be interested in contract, it may be
rescinded, 512
Result of lax enforcement, 535
CONTRACT WORK :
Object of, to avoid liability, 651
CONTROL OF CONTRACTOR
Wliat control should not be reserved,
663-668
Owner can not have the control of an in-
dependent contractor, 654-668
What degree of control may owner retain
over independent contractor, 663, 664
INDEX. 851
References are to sections, •
CONTROL OF CONTRACTOR— Con «
Must be proved to establish relation of
master and servant, 652-668
CONTROL OF WORK :
Should be given to contractor, 656
Who bad control when destroyed, 676
CONVERSATIONS :
Between owner and euiiineer, evidence
of, 491
CONVEYANCES :
Contractor to provide, 284
COOK:
Not entitled to a mechanics.' lien, 861
COPY (see also Evidence ; Expert
Witness) :
Sworn to, from oflice of engineer, are
competent evidence, 481
Of engineer's certificate in court, 481
Enlarged by photography, 880
COPYING DESIGNS, ETC.: •
Law forbids, unless sold or published,
816
COPYRIGHT :
What is tie subject of, 816-818
Necessary to protect published works,
816
Of plans and drawings. 816-818
Of map, etc., made from materials col-
lected by i thers, 822
Of photographs, 819
COPYRIGHT LAWS:
Have not destroyed author's incorporeal
rights in his creations, 816
CORPORATION, see Company.
CORRECTION OF AWARD:
Rules in regard to, by arbitrators, 483-491
Of mistakes in engineer's certificate,
482-491
CORRUPTION :
Of engineer, amounts to fraud, 428
COST OF PUBLIC WORK :
If it exceeds a certain amount must be
let to lowest bidder, 160, 161
COST OF WORK :
To contractor, includes profits of sub-
contractor, 601
COUNCIL :
Individual members, acts of, 39. 555-557
Members must act as a unit, 39, 40, 48„
555
COUNSELOR :
Expert to attorney, 895
COUNTY :
Sometimes held liable under implied
contract. 143
Liability for unguarded excavation in a
street, 645
COUNTY OFFICERS:
Compared with municipal, 852
Liability of, for lack of skill, 851
852
INDEX.
Meferences are to sections.
COURTS (see also Evidence ; Injukc-
TioN ; Mandamus) :
Contracts to pervert, 74
Require utmost diligeuce aud good faith
on part of engineer, 421
Limited knowledge of engineering, 360,
437
Cannot determine questions left to engi-
neer, 360, 437
Favor submissions to arbitration, 436 '
Appointing engineer as an arbitrator,
354
Are against arbitrary and extended pow-
ers of engineer, 401-405
Appeal to courts, engineer's estimate a
condition precedentx to, 412-415
Unwilling to construe stipulations as
conditions precedent, 411
Enforce contracts made by parties, they
should not make agreements, 744
Power to correct engineer's certificate,
486-491
Jurisdiction when engineer has acted
fraudulently, 424-426A
Will try cause in regular course of busi-
ness when fraud is proved, 437
Will not decree specific performance of
agreement to arbitrate, 351
Agreements affecting the right to resort
to, 344, 345
Parties seek to avoid courts, 366
To keep out of courts is express under-
taking of parties, 363
Ousted of jurisdiction by agreement to
abide by engineer's decisions, 339, 344,
345, 406-408
Ousted of jurisdiction, 402
Rights to come into, not a proper subject
of contract, 344
Contracts not to resort to courts, 86
Cannot by agreement be ousted of juris-
diction, 86
May inquire into reasonableness of
arbitrators' charges, 533
Comparison of decisions of American
and English, 387
Have different views of the law. 361
May declare what shall not constitute a
substantial performance, 702
Will not decree specific performance of
a construction contract, 705-707
Determine if plans nnd specifications
are part of contract. 222
Will take notice of notorious facts, 892a
Derive little aid from experts, 360
May have candid expert opinion, 873
Have little confidence in experts, 869
Expert should gain confidence of, 882
Expert must consider the understanding
of court and jury 869,
COVENANT (see also Condition ; Con-
tract Stipulations) :
Of contract^or to render receipted bills of
all claims, 750-758
COVENANT— Cbn^mwcd
Implied, that owner will have an esti»
mate made by a competent and honest
engineer, 421, 437, 438
That failure of contractor to perform
shall render contract void, does not
enable him to neglect the work, 721
Against liens :
Is for benefit of owner, 762
Is not a covenant to pay all claims,
761
CREATIONS :
Made from materials collected by
others, 822
Made from materials collected while an
employee, 821
CROSS-EXAMINATION :
Of an expert is largely within the dis-
cretion of trial court, 883
CROSS OR MARK :
In signing contract, 795
CUSTODY OF PLANS :
Provision that contractor shall have,
245, 251
Stipulation that engineer shall have, 249
CUSTOM AND USAGE (see also Con-
tracts ; Courts ; Work) :
Influence upon the common law% 605
Aid in interpreting contract, 603-629
Effect upon contract, 603-629
In engineering and architecture, 606,
609, 615, 629
In construction work, 603-629
Importance of, in construction, 606
What may constitute a usage, 607
Must be generally known, 610-612
Must be general, or it must be known,
610-612
Knowledge must be shown or implied,
611
Must be certain and uniform, 609
Must be established, 608
Time required to establish, 608
Not established by showing acts com-
mitted for courtesy, accommodation,
and indulgence, 609
Must be established, uniform, and gen-
eral, 612
Must not be interrupted, 609
To define duties of professional engineer
or architect, 811
Cannot enlarge powers of officer, 615
To show authority to employ assistants,
843
In delegating engineer's duties to his
assistants, 502
In measuring and calculating quantities,
381, 603-628
To ch^arge a per cent of estimated cost,
unreasonable, 616
In regard to charges 6i engineer or
architect, 616
INDEX.
Meferences are to sections.
853
CUSTOM AND USAGE— Continued.
To establish charges of architect held
unreasonable, bl4
Among surveyors to include more land
than described, 609, 615, 629
To employ surveyors to estimate quan-
tities, 616
To require bond of bidders, 615
To establish power to insert arbitration
clause in contract, 522
To luruish patterns and moulds, 616, 627,
629
That plans belong to architect, 815
In guarding against accidents in build-
ing operations, 627
Effect of, on ownership of materials, 624
Extra work determined by it, 590
Be inspection of ties or sleepers, 627, 629
Be tbickuess of doors, 618, 629
Contract with a tradesman embodies es-
tablished usages of his trade, 612
Cannot excuse from obligations imposed
by law, 616
Cannot excuse an unworkmanlike job,
257, 615
That are inconsistent with duties of fidu-
ciary, 616
Cannot vary standard weights and meas-
ures, 615, 629
Cannot determine mode of executing a
contract, 615
Cannot contradict terms of contract, 617,
618
Omitted from contract, 617
Quantities to be determined by actual
measurement, 603, 604
Must be reason able, lawful, and in keep-
ing with public policy, 614
Unreasonable practice cannot become,
615
"Must not subvert justice, 616
Must not be immoral, 618, 616
Of millers to appropriate culls and
refuse, 627
To employ incompetent persons, un-
reasonable, 615
Must be plea-'ed, 619
To explain ambiguous contract, 618
Parol evidence of, received, 123
To admit evidence of, meaning must be
doubtful, 619
Of wliat place, controls, 58, 628
Of a government department, 609
Notice required of change of, in busi-
ness, 609
DAM:
Failure of. and liability for destruction
of propel ty and lives, 642
^DAMAGES (see also Delay ; Liqui-
dated Damages ; Measure of Re-
covEiiY ; Owner ; Recovery of Con-
tractor ; Termination) :
What may be assessed as, 704
DAMAGE 3— Continued.
For unskillful performance of work, 835
Froni failure of overloaded floor, 644
Assessed for subletting work, 290
Assessed for refusal to arbitrate, 351
From refusal to submit to engineers' de-
cisions, 351
Recovered from owner and architect for
fraud and collusion in withholding cer-
tificate, 440
Contractor to make them good to owner,
634-636
Fixed in stipulation giving owner power
to terminate contract, 729
Owner not to be liable for, in case of sus-
pension of the whole or part of w orks,
740
Waiver of right to, by taking work from
contractor as provided in contract, 731
If owner can be compensated in dam-
ages, specific performance will nut be
decreed, 706
Power to apply moneys kept back, to
completion of w- rks, held a substitute
for damages, 731
Measure of, for loss of competitive plans
by express company, 815
Suffered by employee for wrongful dis-
charge, 809
For injuries while riding on a pass, 864
For delay :
Consequent to delay, 704
In completion, 326
Limited to those stipulated in contract,
320, 324
Liquidated, assessed for delays, 311-
314
Not liquidated, if they can be ascer-
tained, 317-319
Recovery of, when a penalty, 315-317
Suffered, must be shown when stipu-
lation for liquidated damages has
been waived, 726
For breach or rescission :
Engineer's power to determine for
breach by owner, 397-399, 596, 744-
746
Of contract, determination by engi-
neer, 397-399. 744-746
Power of engineer to determine, must
be expressly reserved, 745
To owner, by reason of contractor's
breach, 704
For breach of contract must have been
contemplated by parties, 681
In case of termination of contract, not
fixed, 728
DANGERS :
Assumed by contractor, 671-680
DATE OF COMPLETION (see also
Compi.etion) :
Should not be allowed to pass unnoticed,
724
854
INDEX,
Meferencea
UATE OF CO^aV'LTiTlOlii— Continued.
Impossible date named, 310
Wbeu works have been destroyed, 675
DATE OF CONTRACT :
Time of entering into contract, 59
Importance of date, 59
Date omitted, may be proved, 59
DAYS (see also Time op Performance
OR Completion) :
Calculation of number, for completion of
work, 310
Fair and rainy days, when working days,
310
Working days defined, 305, 310
DAY'S LABOR:
Hours in, fixed by statute, 136, 144
DAY'S WORK :
Overtime, no recovery for, without agree
ment, 580
DEATH (see also Executor and Admin-
istrator; Representatives) :
Representatives after, 7
Terminates contract for personal skill, 11
Of contractor discharges surety, 21
Of contractor before completion, 438
Of architect, contract for services does
not survive, 709
Of engineer, excuses certificate, 438, 506
DEBTS :
Contract to pay the debt of another, 110
DECISION (see also Engineer's and Ar-
chitect's Decision):
Of difficult questions by engineer, ob-
jectionable, 351-363
Of architect or engineer final and with-
out appeal, 335-469
DECLARATION :
Should contain an allegation of fraud of
engineer, 437-429
DECLARATION IN ACTION :
When changes have been made, 575
DECORATING :
Contract to do, and building burned, 676
DECORATIONS :
Copyright of, by artist, 816
DEFAULT OF CONTRACTOR (see
also Breach ; Rescission ; Termina-
tion OF Contract) :
Owner may employ others to complete
works, 710-717
Owner may terminate or annul contract,
710-717
Should not be willful, 699
DEFAULT OF OWNER:
May waive power to terminate, for con-
tractor's default, 733
DEFECTIVE APPLIANCE:
Furnished for hire, liability for injury,
657
are to sections.
DEFECTIVE MATERIALS (see also
Materials) :
Furnished by the city, 577
Used by subcontractors by request of
engineer, 553
Used, designated in specifications, 277a
Sold subject to inspection, with clauses-
that inspection shall not relieve con-
tractor trom liability for defects. 467
DEFECTIVE PLANS AND SPECI-
FICATIONS :
Difficult to prove, 239
Selection of, by city, town, or state, 245-
248
Liability therefor, of parlies to contract,
237-248
Owner's liability for, 239-248
Liability for injuries to third persons-
resulting from their use, 243
Contractor not liable for, 239
Liability of engineer, 837
DEFECTIVE SOIL:
Will not excuse delay, 678
DEFECTIVE WORK :
Liability for, done under inspectors, 23T
Contractor's linbility therefor, 120
Contractor not liable for.after acceptance^
446, 463-469
Contractor to be responsible for, though,
inspected and approved, 331
Are waived by progress payments, when,.
446, 463-469, 701
Cannot be accepted, though compensat-
ed, 390
To be replaced upon notice, 328
Inconsistent with a substantial perform-
ance, 702
Made good by owner and charged to*
contractor, 738
Whether a breach of contract, is a ques-
tion for court, 442
Not sufficient to impeach engineer's cer-
tificate, 443
Liability of engineers, 837
Liability of engineer for not detecting,
838-840 ^
Joint liability of engineer and contractor,
840
Failure of structure due to, 237
DEFECTS :
Builder liable for damages that result
from, 644
Must be unimportant, to permit a sub-
stantial performance, 702
Not apparent from inspection, contractor-
must remedy, 469
Pointed out, to be remedied, 442. 495
Inspection by owner and pointing out,
is not a waiver of others, 701
Payment for work on progress certifi-
cates, not a waiver of defects, 413
Fraudulent concealment of, 120, 121
446, 463-469
INDEX.
JSeferencea are to sectiong.
855
DEFECTS — Continued.
Concealed until statutory period of limi-
tations has passed, 119-121
DEFENSE (see also Courts) :
Of failure to procure engineer's certifi-
cate must be pleaded, 413
Not having read the contract, 794
DELAY (see also Damages; Liquidated
Damages ; Time of Completion) :
Occasioned by owner, 336
If caused by owner, time to be extended,
307
Caused by owner is excusable, 670
Caused by act of engineer or architect,
324, 326
Caused by incompetent engineers, 734
In making engineer's certificate, 439
Caused by inspector rejecting materials
is not chargeable to owner, 689
In acquiring title to lands for works, 684
Caused by defective materials furnished
by city, 577
Solicited by individuals of a committee,
556
By reason of changes in plan by owner,
522
Caused by alterations, 577
Alterations and additions an excuse for,
585
Not excused by alterations, 585
By extras, contractor must give notice,
to excuse himself, 578
What will not excuse delay of comple-
tion, 678
Not excused by destruction of works, 675
Caused by difficult construction or casu-
alty does not relieve contractor from
liquidated damages, 321
Performance impossible in time stipu-
lated, 324
Provision that work may be delayed or
suspended, 740-742
"What is unreasonable, in renewing work,
683
Power to increase contractor's working
force reserved, 738
Caused by acts of both parties, 326
Caused by other contractors, 324, 326
From strikes of contractor's men, 326
Liquidated damages specified for, 311
Liquidated damages therefor, 311-326
Damages resulting Iheiefrom, 704
Waiver of, and penalties attaching. 573
Not a breach of contract when liquidated
damages are stipulated, 326, 731
DELEGATION OF DUTIES :
Councils cannot delegate to members, 556
Arbitrators may not delegate, 529
By engineer or architect, 499-507 (see
also Engineer or Architect).
By engineer, reasons for, 501-504
Of engineer, stipulation for, omitted, 505
Of a public officer, 507
DELEGATION OF DUTIES— Con^d
Cannot be upheld by usage, when they
are pi rsonal, 616
To contractor, does not relieve owner
from negligent performance, 646
DELIVERY :
Of contract, 799
Of one copy of a contract executed in
duplicate, 796
Of mjiterial on ground, 271
Of certificate, questions in regard to„
held not a demand, 414, 437, 439
DEMAND :
Should be made by contractor for en-
gineer's certificate, 414, 437, 439
DEMOCRATIC SPIRIT :
Pervading decisions of American courts^
748
DEPARTURES AND OMISSIONS :
Must be unimportant or no substantial
performance, 701
DEPOTS, ETC. :
Must be kept safe, 645
DESCRIPTION :
Of work in contract, 208-212 (see also
Work).
Of public work required to be let to
lowest bidder, 154
DESIGNATION :
Of parties in a contract, 206, 207
Of engineer, not clear, 506
DESIGNS (see also Copyright ; Em-
ployee; Plans and Specifications) :
Property in, of artist, 815-825
Embodied by plans are protected by
law, 816
Exhibited in public, rights of author or
artist, 816
Rights of purchaser in, 817
Made by employee. 822
Rights of employee in, 819-825
Should be protected by copyright, 816
Of structures, right to copyright, 816-
.818
Imperfect, and structure falls, 237
DESTRUCTION OF WORKS (see also
Contractor ; Entire Contracts ;
Failure) :
Liability assumed by contractor, 671-'
680
Loss falls upon contractor, 674
Does not excuse completion of work*
within time fixed, 675
When undertaken by several contract-
ors, 676
To be paid for as they progressed, 677
DETAIL DRAWINGS :
Differ materially from original plans, 584
DETRIMENT ;
Detriment of promisee a consideration
of a contract, 61
856
INDEX.
References are to sections.
DEVIATIONS FROM PLANS :
By consent of owner, 242
And speciti cation, by orders of engineer,
888-390
DIAGRAMS :
May be used by expert witness, 892
DIFFERENCES :
Between engineer and his superiors or
associates, 518a
DIFFICULT :
Work becoming more so, 678-680
DIFFICULTIES :
Unforeseen and unknown, 584
DIFFICULT QUESTIONS:
Arise in construction work, 358-363
DILIGENCE :
Required of owner in selecting a con-
Iructor, 644
DIRECTIONS :
Regarding work, should be incorporated
in plans and specifications, so far as
possible, 663
Has not, usually, reference to means and
manner of doing work, 666
What direction and control should not
be reserved, 663-668
DIRECTION OF WORK :
Owner may not have. 654-668
Engineer to have, but not the control,
647
DIRECTLY :
Meaning of word, 310
DISCHARGE OF CONTRACT •
Law of what place governs, 58
DISCHARGE OF SURETY :
By alterations, 20, 22, 576
DISCHARGE OR DISMISSAL :
Of employee (see also Contract; Em-
ployee ; Employment) :
What is or is not, 808
Of an employee, 802-810
What will justify, 802-810
If the employee be incompetent, 804
For misrepresentation as to skill, etc.,
806
For willful disobedience, 803
For habitual negligence, 805
For disclosing business of employer,
804
Offense condoned, 807
Measure of damages recoverable, 809
Due to combinations, conspiracies, or
boycotts, 604
He may have an action against, who
maliciously procures his discharge,
804
Power to select and discharge evidence
of a servant's relation, 654-668
DISCOVERY OF FRAUD .
Clues should be followed up, 119
DISCREPANCIES •
Between contract, plans, and specifica-
tions, 225-233
In plans and specifications, 438
DISCRETION :
In terminating contract, must be hon-
estly exercised, 720
Of public officers :
Must be exercised iu good faith, 171,
173
In awarding contract, 138
To ignore bidder, who is in arrears to
city, 147
Exercised, must be based upon facts,
173
Is gone when manner of doing a
thing is once adopted, 138
Not to be controlled, 176-179, 844-859
Of engineer, in his duties, 440
Exercised by engineer, must be hon-
est, 429. 430
DISCRETIONARY DUTIES :
Liability for misconduct in the perform-
ance of, 179, 844-849
May not be delegated, 173, 600-504
DISFAVOR, IN :
Stipulaiions that engineer's decision
shall be final and without appeal, are
• so with courts, 342-345, 406-408
DISHONESTY :
In the practice of engineering, 518a
DISINTERESTED :
Engineer, company may insist upon,
514-518
DISMISSAL (see also Discharge) :
Of incompetent workmen, power re-
served to engineer, 647-650
DISOBEDIENCE :
That will justify the dismissal of an em-
ployee, 803
DISPUTES :
Must exist at time submission to arbitra-
tion is made, 525
To be decided by engineer or architect,
367, 368
Referred to two arbitrators and an um-
pire, 519-533
DISABILITIES :
Of persons to contract, 23-28
Social, to contracting, 27
Political, to contract, 27
Which prevent operation of statute of
limitations, 114
DISTANCE :
Made less than air-line, by engineer, 443
DOORS :
Qustom as to thickness of, 618
DROPPING :
Mortar and refuse upon neighbor's lot»
641
INDEX.
References are to sectiona.
857
DRUNKARDS :
Contracts of, 25
DRUNKENNESS :
A cause for dismissing an employee, 804
DURESS :
Parlies to contract under duress, 28
Angry and profane words not duress, 28
Parol evidence of, in written contract, 129
DUTIES :
Of engineer or architect (see also En-
gineer's Duties) :
Under a professional engagement, 811,
826-837
Implied contract by owner that en-
gineer shall do his duty, 421, 426,
438
Delegation of, to others, 499-507
That cannot be delegated, 500-504
As public officers, they are presumed
to do their duty, 40
Not assigned to any particular party,
506
Of employee to notify emp'oyer, 849a
Of owner :
To avoid acts dangerous to others, 644
To do no act imminently dangerous to
otliers, 842
To exercise due care and foresight, 644
To see that works are conducted with
care and skill, 643
Delegated to contractor, liability for
negligent performance, 646
EARTHWORKS (see also Excavations):
Rules for measurement of, 881, 382
Measurement of, in excavation, 623, 629
Tests for classification of, 385
Custom and usage of, 623, 629
Filling in between ties or'sleepers, 601
Embankments, xaeasurement of culvert,
601
Outside limits of tunnel, 587
Which have to be re-excavated, 679
ELEMENTS OF CONTRACT (see
also CONTKACTS) :
Four essentials, 1
Parties, 1-56 (see also Parties).
The consideration, 60-70 (see also Con-
sideration).
Subject-matter, 71-87, 208-212 (see also
Subject-matter).
Mutual assent, 90-97 (see also Mutual
Assent).
EMBANKMENT (see also Earth-
works):
Estimates of, allowing for shrinkage, 601
EMPLOYEE (see also Contracts ; Em-
ployment ; Engineer or Archi-
tect) :
Duties and Rights :
Rights of, in designs and inventions,
819-825
EMPLOYEE— Continued.
Duties and rights — Continued.
Rights of, to lileiary productions, 819
liight to things created outside of
office hours, 820
Cannot copyright charts made from
Government surveys, though con-
ducted by himself, 822
His right to his inventions, 823-825
In making inventions should assume
the cost, 825
His duty to give notice, 849a
Statute giving right to wages when
discharged, 144
Misunderstanding as to wages to be
paid, 90
His rights may not be arbitrarily de-
termined by officer of company em-
ploying him, 345
Overtime, when statute fixes hours iu
a day, 810
Term of service and statute of frauds,
105
Contracts for service for one year or
more should be in writing, 103-105,
801
Citizen on public works, 136, 144
Can have no secret interest in em-
ployer's business, 85
Contract to divulge employer's t)usi-
ness, 42, 85, 508-518
Of state, liable for negligence, 854
Discharged (see also Discharge) :
Measure of damages recoverable, 809
"Wrongfully dismissed may recover
reasonable value of services, 809
Discharged, is bound to seek only like
employment, 809
What he should do, 809
Employer must show that employee
could have had other employment
to reduce amount of recovery, 809
Must possess degree of care and skill
alleged, 826-837
Recovery for extra skill and service,
■ 825
Determination of skill, 830
Disrespectful conduct will justify dis-
missal, 803
Need not put up with indignities, 803
Criminal act of, a just cause for dis-
missal, 804
EMPLOYER (see also Owner) :
Remuneration of employee to be de-
termined by him, 340
May be the true inventor, 823
EMPLOYMENT :
Engineer or architect :
In regard to, 800-859
What is or is not, 812
What is proof of, 814
Does not alone make relation of
master and servant, 652-668
858
INDEX,
Meferences are to sections.
EMPLOYMENT — Continued.
Engineer or architect — Continued.
Eugagements for a salary and a part
of protits of business uot a partner-
ship, 801
"What is not an engagement, 813
As a professional man, 858
In a professional capacity, 811-814
Similar to that of other professional
men, 826
Undertaking of, in a professional
capacity, 811
Often very indefinite, 811
In connection with competitive plans
submitted, 812-814
Conditional on acceptance of plans,
812
In a judicial capacity, 844-849
Character of work changed, without
consent of employee, 808
By unauthorized persons, 814
Beyond power conferred by charter
upon company, 43
By two persons jointly, 814
May not delegate duties, 805
Confers no special powers upon him,
371, 552-554
Of an engineer known to be interested,
518
As an expert witness, 867-901
His right to designs and inventions,
819
Right to inventions made, 823-825
What is a performance of contract of
service, 813
Breach of contract of, 801-810
Recovery for services, 814
Recovery for services of assistants, 814
Who is liable for value of services, 814
No recovery for extra services volun-
tarily rendered, 810
Term of service, 801
By the year, month, or day, 80l
Period adopted for estimation of
wages, 801
Contracts for service not to be per-
formed within a year, 105, 801
Service by month and continuous for
several years is one hiring, 801
Term of service indefinite. 801
Yearly contract, long-continued ser-
vice, 801
Agreement to employ permanently,
801
Steady and permanent service, 801
For life or during ability to perform,
801
Term of service so long as works are
kept running, 801
Dismissal or discharge, 802-810 (see
also Discharge).
What will justify a discharge, 802-810
Overburdened with work, and dis-
missed for lack of control, 806
EMPLOYMENT— C(?w <intie<?.
Engineer or architect — Continued.
What amounts to a dismissal, 808
A demand for the resignation of, is a
discharge, 808
Dismissal for incapacity, 806
Incompetency or incapacity, 806
His liability for lack of cure and skill,
826-843
Misrepresentation as to skill and ex-
perience, 806, 256, 257
If careless and incompetent, he is
liable to employer, 828-843
Illness and absence a cause for dis-
charge, 805
Absence a cause for dismissal, 805
Gross moral misconduct, 804
Misconduct overlooked and condoned,
807
Waiver of right to dismiss, 807
Recovery of wages when wrongfully
dismissed, 809
Damages recoverable for discharge,
809
Duty when discharged to seek other
employment, 809
ENGAGEMENT (see also Employeb ,
Employment) :
Of engineer or architect, 800-859
Of professional man, implies capacity to
do what is undertaken, 826-837
ENGINEER OR ARCHITECT (see
also Agent : Arbitrator ; Con-
trol ; Delegation ; Employment ;
Engineer's Certificate, Decision,
Duties, Powers, etc. ; Expert Wit-
ness) :
An agent or officer :
When an agent or servant, 368, 834
Treated as an agent of owner, 426
An agent with special powers, 368,.
371-380, 552-554
Is not a confidential agent, 849a
Is trusted agent of employer, 42, 514-
518a
Is in position of trust. 514-518A
Held sometimes not an arbitrator,,
but the impersonation of company^
341, 509-511
An agent, his knowledge attributed to
owner, 446, 849a
May owe a double duty to his em-
ployer, as a referee and as a pro-
fessional man, 849
Referred to as an incumbent of an
oftice, 436, 438, 506
Liability when a public officer, 850-859
• As public officer may be required to
do his duty, 709
Not properly designated. 506
Successor appointed, 438
Acts ratified or adopted, 34
As politicians and lobbyists, 901
INDEX.
859
References are to sections.
ENGINEER OR ARCHITECT— Cow<.
An arbitrator :
Treated as au arbitrator, 495
Distinguished from au arbitrator, 496
Judicial status of, 846
Can administer justice with aid of
courts, y54
Appointed by the courts, 354
An arbitrator, umpire, or referee, 335-
469
As an arbitrator or judge between the
parties, 339, 351-366
A gwa^i- arbitrator, 3()8, 525
Compensation of, as an arbitrator, 533
Bis fraud, collusion, and arbitrary
conduct :
Must not act fraudulently, 847
Liable to owner for fraud and collu-
sion with contractor, 516. 847, 848
Responsible to contractor for his fraud,
426
Guilty of fraud, contractor may have
relief in court, 708
His arbitrary and oppressive conduct
relieved against by equity court, 747
Praud, collusion, or bad faith of, avoids
his certificate, 422-432, 437
Evidence of collusion, 149
What is not a sufficient allegation of
fraud on his part, 427-429
May refuse to hear evidence that as-
sistant's estimates are wrong, 528
Pledged that cost shall not exceed a
certain amount, 443
Not liable to a suit by conttactor for
refusing his certificate, 846
Liability of owner under certain
clauses reserving control of work,
665-667
Must be competent and honest, 421,
435, 437
Must have exercised an honest judg-
ment, 429-437
Determination to terminate contract is
final, if exercised in good faith, 745
If his interpretation of contract be
honest, it cannot be wrongful, 404
YaluM of honesty to, 518a
Liability of owner or company for his
misconduct. 549
Company should suffer from hisirreg-
ulaiities. 421, 435, 437
His delay in making estimate, 439
When none appointed, 596
His prolonged absence excuses certifi-
cate, 438
Dead or dismissed, 438 (see also
Death).
His unqualified refusal to make an
estimate, 439
An officer of a bureau, refusal to act,
regulations of bureau, 439
May be required by mandamus to ren-
der certificate, 426
ENGINEER OR ARCHITECT— Cbn«.
His fraud, collusion, and arbitrary
conduct — Gontinutd.
His add less not known to contractor,
an excuse for not having demanded
certificate, 439
Interested in work :
Interest in contract or work, 508-518A
Should be disinterested, 517
Can have no secret interests in con-
tract, 42, 364-360, 509-518a
A stockholder in the company, 343,
364-366, 509-511
A lessee of the works, 343, 364-366,
509-511
Employed when his interest with con-
tractor is known, 518
A secret partner of subcontractor, 514
Cannot be a subcontractor, 514
To receive a percentage of expense
saved, 514
Liability of :
Must be coippetent, careful, and skill-
ful, 826-843
Must have ordinary skill and care, 832
Miist give careful superintendence,
839, 840
Selected on account of skill, 528
Competency to determine difficult
questions arising, 851-363
Is most competent to determine
questions of construction, 359-363,
437
Is in possession of records, 353
His undertaking when he solicits or
accepts an engagement, 831
For inspection and defective design,
837
For omissions and defects made by
contractor, 839, 840
To employer for neglect or unskillf ul-
ness, 842
His oath as to accuracy of estimate,
518a
Use of erroneous tables by him, 433
For injuries resulting from adoption
of insufficient plans, 842
Incompetent and delinquent, 421, 734
Cannot recover for services when he
has been careless and unskillful,
838
To owner for failure to make investi-
gations, 838
For acts of assistants, 843
His helpers to be furnished by con-
tractor, 284
To his employer, but not to others,
848
To owner, with contractor or builder.
840
For cost of materials obtained through
misrepresentations, 856
Liable for extras ordered without
authority, 553
860
INDEX.
References are to sections.
ENGINEER OR ARCHITECT— (7ow«.
Xjiability of — Continued.
For many acts or omission when his
functions are judicial, 844-846
When his duties are judicial or dis-
cretionary, 179, 844-849A
For want of care and skill when act-
ing judicially, 846
Is under contract with owner to use
care and skill, and his judicial
status will not relieve him, 848
For misconduct of contractor, 840
To contractor for fraud, collusion,
and bad faith, 847, 848
"When codefendant with owner, and
charged with fraud, must reply to
charges, 847
Liable in damages for withholding
esiimate, 440
His failure to disapprove implies ac-
ceptanjse, 441
Pointed out defects to be remedied,
442
For contempt for disobeying court,
859a
When under an injunction, 859a
For assurances that contractor would
have his pay, 553
As a witness :
Ou the witness stand, 849a
Qualifications as an expert witness,
884-891
As experts, not needed to determine
certain questions, 885
A witness with knowledge of facts,
888
As an expert defending hasty and im-
prudent opinions, 868
Justice requires him to take witness-
stand as an expert at times, 874
Witness and referee, 511
No special privileges as a witness,
849a
Examples that are questions for expert
testimony, 891
A judge when he cannot be a witness,
505
Duties, Powers, and Rights :
Should be non-committal, 436, 442,664
Should keep reasons for his decision to
himself, 436
• Should not volunteer information to
bidders for public work, 155
Canvassing among bidders, 140
As an independent contractor, 843
Property in his creations, 817
Right to copyright of plans, 816-818
His property in plans and specifica-
tions he has supplied, 252, 815, 816-
822
Claims to a copyright of his plans, 818
Employment of (see also Employment) :
His engagement or employment, 800-
859
ENGINEER OR ARCHITECT— C<wf.
Employment of Continued.
As a professional man, 826-837
Abruptly leaves service of employer
is liable for damages, 709
Quits employer's service, cannot be re-
quired to return, 709
Action for his pay, when to be borne
equally by owner and coutnictor,
517
Means of collecting his pay, 860
Right to a lien for services, 861, 862
Entitled to lien for superintendence,
862
His relations to his work and right to a
lien, 862
His charges, a per cent of estimated
cost, held unreasonable, 616
His rights under stockholders' liability
acts. 863
Injured while riding on a pass, 864
ENGINEER'S APPROVAL :
Work to be done to, 341
ENGINEER'S AUTHORITY (see also
Engineer's Power) :
Limited to powers and duties expressly
conferred, 388-390
To pledge his employer's credit, 376,
552-554
To order extras, etc., 553
May not order extras without authority,
841
Authority to order extras established by
implication, ratification, or adoption,
558
To order extras implied from payment
of previous orders, 377
Established by usage, 609
Position on works under his charge. 353
Cannot change terms of contiact or
specifications, 379, 552-554
To employ assistants on account of com-
pany, 843
To employ a station agent, 379
May certify to contractor's failure to
perform, 710-717
Stipulation that he may terminate con-
tract and employ others to complete,
not authority to contract for owner,
736
Direction or control which may be re-
served to him, 665, 666
ENGINEER'S BAD FAITH:
A reason for punishing contractor, 449,
453
ENGINEER'S CERTIFICATE (see
also Certificate ; Engineer's De-
cisions ; Engineer's Estimates) :
What it shall coniain, 470-480
Its form nud sulistnncc, 470-491
Good and sufficient, what is, 470-480
Note-books sue not, 479
Analogous to an award, 485-491
INDEX.
861
Jteferenees are to sections.
ENGINEER'S CERTIFICATE— Co/i^
Distiuguished from an award, 425
Oath iu regard to, 472. 476, 518a, 526
Must not comprise matters not submitted,
479
Must meet requirements of contract and
speciticatioMS, 370, 381-390, 474-480
Requirement of contract in regard to,
470-480, 503
Uplield thougli not strictly correct, 443
Effects of insufficient or incomplete, 474r-
480
Must be certain and complete. 474-478
Is certain if amount can be determined,
475
Should be final and complete when ren-
dered, 480
Should make final disposition of all
questions, 474-480
luconipleie, a reason for owner's refusal
to pay, 475-480
Good in part and in part bad, 479
Should not give legal grounds of deci-
sion, 436
Should not contain explanations and
demonstrations. 436
Which is the final certificate, 473
Returned by contractor, and again de-
manded, but refused, 439
To be from personal inspections, item-
ized, subscribed and sworn to, 471-480
When work is not completed, 370, 382-
390, 442
Made without a hearing, 493-498
Certificate of work measured by prede-
cessor as evidence, 481
When made by a firm of engineers, 505
Made by assistant and O.K.-ed by chief
engineer, 504
Copy of, as evidence, 481 *
As evidence in court, 481
Unreasonably withheld. 439
Refused without good cause, 439, 443
Refused for small and unimportant de-
fects, 442
Withheld at request or order of owner,
438-440, 670
Refused because of an injunction, 438
Refused because subcontractors were
not paid, 370
Withholding of, when contractor has
had all that is due to him, is imma-
terial, 460
Made after delny but before action by
contractor, 349
Witliheld in bad faith, 415
Fraudulent, no release required, 763
When he has promised cost shall not ex-
ceed a certain amount, 443
Unnecessary, in case of fraud, 437
Not required when contract has been
rescinded, 440
Excused when contractor has terminated
contract, 728
ENGINEER'S CERTIFICATE— Coni.
Not required when engineer is dead. 438
Once rendered, cannot be revised or cor-
rected. 482-491
Equally coni lusive on owner and con-
tractor, 444-462, 549
JBinding notwithstanding it is repudiated
by city or owner, 445
Is conclusive on owner though work is
not fully completed, 442
Does not bind city unless stipulated that
it shall be final and binding, 461
Held binding upon both parties, though
not expressly stipulated, 445
To be conclusive on contractor only, 447-
462
When work is not strictly per contract,
445
Accepted by parties, binds surety, 473
To be rejected by owner if improperly
given, 448
Not to preclude owner from showing
amount of work, 449
A condition precedent to liability or re-
covery. 355, 470, 472, 771-779
A condition precedent to any right of
action under contract, 342-345
Liability may be postponed until after
their certiticate has been rendered, 343
Recovery by contractor without it, 418-
443
Dispensed with for certain causes, 422
Not waived by paying progress certifi-
cates, 413, 417
Expressly stipulated that they shall not
effect a waiver of defects, 461, 463-9
Of damages, per contract, must be made,
744
Entitles owner to terminate contract, 720
May include extra work not ordered in
writing, when, 549, 465-490
Liability for it being in excess of work
done. 838
ENGINEER'S DECISION (see also
Award ; Engineer's Certificate,
Estimate, Powers, etc.) :
Final and conclusive :
Decision and estimate to be final and
conclusive, without recourse or ap-
peal. 335-337
Made final, without appeal, 335-337
Need of making it conclusive upon
parties, 3-58
Practical reasons for sustaining them.
362
Held final and conclusive. 406
His decision confined to matters
strictly within the contract, 595
Conclusive, only when expressly so
made in the contract, 370
On questions of law, conclusive, 402,
486
Will be conclusively if honestly made,
429, 430
862
INDEX.
References are to sections.
ENGINEER'S 'D'BCISIOU— Continued.
Final and conclusive — Continued.
Conclusive ou both parties, 444-462
Bindiug ou sureties, subcoutractors,
and all parties to contract, 445
His chissiticalion final if in good faith,
387
Final as to termination of contract un-
less bad faith or fraud be alleged
and proven, 418-443, 746
Re damages from suspension or re-
scission to be final, 744-746
Final, noi withstanding other stipula-
tions requiring work to be per-
formed according to specifications,
443
Prevails over specifications in accept-
ing materials, 446
Prevails over specifications when, 370,
381-388, 446
Must be according to terms of con-
tract, 370-390
His determination re extras not con-
clusive unless so stipulated, 595
Cannot be founded entirely upon re-
ports of assistants, 505
Not final if tainted with fraud or col-
lusion, 423-432, 437
Made conclusive ou contractor alone,
447-462
Validity of clause making it final at-
tacked upon three grounds, 339
Does clause making it final, and with-
out appeal, possess essential features
of a contract, 339-343
When engineer is representative of
owner, 341
Clause making it final, and without
appeal, ousts courts of their jurisdic-
tion, 338, 344, 345
Contracts to abide by it are revocable,
339, 346-351
Compared to an award, 525
Not always an award, 348
Stipulation for, said to leave the deter-
mination of important questions to
incompetent persons, 339, 358-363,
437
Preferred to a court's, 363
If not made a condition precedent,
may not be final, 411
Must, be expressly made a condition
precedent, 416
Should be made a condition precedent
to liability of owner, 842-345,
410
Condition precedent to liability may
be waived, 413, 417
Instances not covered by sweeping
stipulation, 896
What matters should be left to* his
determination, 408
Be collateral or subsequent agree-
ments, 596
ENGINEER'S DECISION— Con ^mwed
Final and conclusive — Continued.
When engineer is to determine mean-
ing of contract, 405
If honest, cannot be wrongful, 404
When he is not named, but is an in-
cumbent of an oflice, 341
Protection of, must be pleaded, 417
Contractor should ask for it, 595
When he has made a mistake of law,
436
Can it be revised ? 482-491
Mistakes in, amounting to fraud, 429-
437
ENGINEER'S DUTY :
To report conditions and things to his.
employer, 849a
To give notice of contractor's default,
710-717
To guard against defects, 839, 840
In regard to personal inspection before
rendering certificate, 849
When he has made a mistake. 486-491
Involves discretion and judgment, 440
Should not include "sharp practices,**
511
To lay out work, contractor to preserve
his lines, 297
To explain plans and specifications, 225,
226
In inspecting and rejecting materials,
etc., 276
To determine amount due, 415
Not specifically assigned. 506
Not to be determined by a jury, 849
Presumption that he has done it, 840
As an emplovee not excused because of
his judicial status, 848, 849
That m^ be delegated, 500-504
Delegated to his partner, 505
Delegation of, to assistants. 499-507
Delegation of, when a public officer, 507
ENGINEER'S ESTIMATE (see also
Engineer's Decision ; Engineer's
Certificate ; Estimate) :
Not strictly an award, 425
Conclusive upon both parties, 444-462
Is conclusive only when made according
to terms of contract, 381-383
Cannot be i ejected on account of pure
mistake, 429-487
Erroneous and excessive does not ehow
fraud. 428, 429
Increased beyond what was due, 390
When he has made a mistake of law, 436
Right to revise, reserved, 448-462
Avoided by engineer's fraud or bad
faith, 422-432, 437
Contractor should make a demand for it,
414, 437, 439
Rendered impossible by act of owner,
438-440
Too low, owner's liability therefor, 841
INDEX.
References are to aeetions.
863
ENGINEER'S ESTLMATE—Confd.
Wlieu structure has burued, destroying
work, 395
City dissatisfied with, to require con-
tractor to make one and prove it cor-.
rect, 449, 453
ENGINEER'S FRAUD (see also
Fraud) :
Evidence of fraud, 54
Dispenses with his certificate, 437
ENGINEER'S INTEREST •
Cau have no secret interest in contract,
85
May be an umpire of work done under
his own plans, 511
ENGINEER'S KNOWLEDGE :
Imputed to his employer, 491, 849a
ENGINEER'S LIABILITY (see also
Engineer or Architect) :
For misconduct when period of limita-
tions is passed, 121
For making unauthorized changes in
plans, etc., 234, 235
For trespass of workmen in conduct of
work, 275
ENGINEER'S MISTAKES (see also
Mistakes of Engineer) :
A cause for rejecting contractor's work,
448-451
ENGINEER'S ORDERS :
Ratification of, by employer, 377
Must not contravene the contract stipu-
lations, 388-390
ENGINEER'S POWERS (see also En-
gineer's Authority, etc.) :
Are created by contract, 403
Confined to acts expressly authorized,
371-380, 552-554
Should be limited. 401-408
Extended by other clauses, 389, 712-717
He should not be able to enlarge them,
402
'Courts are against arbitrary and ex-
tended powers, 401-405
Provision that they shall not be revoked,
347
Curtailed by specializing. 400
Exceeded with regard to certain matters,
479
To determine quantities. 370, 381-390
To determine quality of work, 388
To make estimates and r nder certificate
without notice to parties, 492-498
To determine intention as expressed by
parties in contract, 401-405
To contract for parties, 30, 32, 38
To supervise, and direct work and order
changes, includes no more, 372, 552-
554
•Cannot order better materials than called
for by specifications, 586
To decide questions of law, 436
ENGINEER'S POWERS— Continued.
To dismiss incompetent workmen, 647-
668
To have supervision and direction, but
not control of work, 647
To make change in contract conferred
by power of attorney, 559-
Provision that he may proceed ex parte
if interfered with, 347
To declare contract terminated defined,
710-717
To terminate contract in their discretion,
734
To terminate contract is not authority to
hire or purchase on credit of company,
736
To order extra work, 553-558
To determine price and value of extras,
592-596
In regard to extra work, 392, 591-599
To determine extras, not power to deter-
mine damages, 596
Question re extra work and alterations
left to his judgment, 591-596
To determine what work is, or is not, in-
cluded in contract, 592-596
Affected by alterations, 577
Direction and control of, equivalent to
specifications, 244
To act as umpire re his own plans, 511
To delegate to his firm. 499-507
When his decision is final, 388-390 .
When contract has been rescinded or per-
formed, 397. 399
To determine damages suffered from re-
scission, 744-746
Under subsequent agreement, 398, 399
ENGINEER'S PREDECESSOR :
Measurements by, certified, as evidence,
481
ENGINEER'S PROMISE :
To make saving, to contractor, to com-
pensate him for extra work, 378
That contractor shall be paid, not bind-
ing on owner, 371-380, 552-554
ENGINEER'S SERVICES (see also
Employment of Engineer) :
No recovery for, if employment be ultra
vires, 43
ENGINEER'S SKILL (see also Engi-
NEER OR Architect) :
Lack of skill or attention, 237
ENGINEER'S STAKES :
Liability for injury from falling over, 428
ENGINEER'S STATEMENTS :
Do not bind owner, 380
ENGINEER'S TESTIMONY :
When his certificate was to be conclu-
sive. 481 (see Expert Witness).
ENGINEERING OPERATION :
Importance of. an element in determin-
ing the law, 361-363
864
INDEX.
References are to sections.
ENGLISH AND AMERICAN
COURTS :
Decisions compared, 387, 748
Decisions agreed as to interest engineer
can have in works, 510
Decisions as to powers of engineer, 405,
550
Views upon unlimited power to engineer,
405, 408
■Protection of individual rights, 748
Leniency of the latter, 699
The former construe contracts most
rigidly, 748
ENRICHMENT :
To prevent unjust enrichment, contract
to pay is implied by law, 108
ENTIRE CONTRACTS (see also Con-
tracts ; Contractor ; Destruc-
tion : Recovery of Contractor ;
Works) :
Distinguished from severable, 674-680
Intention of parties will prevail, 674
Defective plans, under, 240
EPIDEMIC :
Will excuse performance of work, 678
EQUITY COURT :
Compared with court of law, 561
Jurisdiction in case of fraud of engineer,
425-426A
May require engineer to render his cer-
• tiflcate, 426
Will correct a palpable mistake or mis-
calculation, 486-491
May grant a hearing when contractor is
oppressed, and order an accounting,
747
Will compel city to issue bonds to pay
en;^ineer's certificate, 445
ERRORS (see also Mistakes) :
In plans and specifications, 225-233
In computing quantities. 370
That will avoid engineer's certificate, 436
Revision and correction of, in certifi-
cates, 482-491
ESSENTIAL ELEMENTS :
Of a contract, in agreement to complete
work to satisfaction of owner, 338-
343 (see also Contracts).
ESTATES IN LAND :
Contracts for the creation, assignment,
and surrender of, are within statute of
frauds, 109
ESTIMATE (see also Engineer's Esti-
mate) :
Includes measurement and calculation,
381
Is approximate, 588, 589
Owner does not warrant it is correct,
588, 589
According to rigid rules of mensuration,
381-390 .
ESTIMATE— Continued .
Of quantities, engineer's most proper
duiy,
A random guess, evidence of fraud, 14^
May be employed to show character of
work when specifications have been
omitted, 216-219
Of engineer should not include materiala.
delivered unless contract provides they
shall belong to owner, 271
Made by assistants, 504, 505
ESTIMATED:
Distinguished from measured, 504
EVADING SUMMONS :
For the statutory period of limitations,
115
EVIDENCE (see also Expert Witness):
All that is mnterial should be heard by-
arbitrator 528
Refusal to receive, avoids award of arbi-
trators, 493
Of value of work is contract price, 691
Engineer's certificate, 481
Of work is in possession of engineer,
353
Of fraud and collusion of engineer, what
is, 428, 429
Of usage and custom, 627
Of prospective profits, 695
EXAMINATION :
Works to be opened for, if required, 280>
EXAMPLES :
Of expert testimony, 891
EXCAVATIONS (see also Earthworks^
Hardpan) :
Estimating quantities of, 381-390
Are included under term " building " or
"wall," 600
Allowing for shrinkage of embankment,.
three rules, 601
Extra, caused by engineer's mistakes^
421. 435
Tests for classification of, 385
Whether it includes the removal of soft,.
swampy soil, 387
Frozen by fault of contractor, 386
More ditficult than was anticipated, 679^
Outside limits of tunnel, 587
In public ways, 645
Afliecting foundations of neighbors^'
structures, 643
So as to undermine neighbors' structures,.
641
EXCEPTIONS TO RULE :
That an agent cannot delegate his duties,
502
EXCHANGING WORKS :
Relation of workmen to owner, 657
EXCLUSIVE RIGHTS OR FRAN
CHISES :
Contracts by public oflScer must not
grant, 81
INDEX.
865
Meferences are to sections.
SXCUSE :
Failure of usual means of performance
not an excuse for non-performance,
678
What will excuse production of en-
gineer's certiticate, 422
For delay of contractor, 326
EXECUTED CONTRACTS : \
Not within statute of frauds, 104
EXECUTION OF CONTRACT (see
also CONTKACTS) :
Signed, sealed, witnessed, and delivered,
798-799
Without reading it, 794
EXECUTOR OR ADMINISTRATOR :
Is the representative of a person after
death on all contracts, 8
Rights and liability under contract of
decedent, 8
Bound to complete contract, 8, 9, 10, 11
Takes benefits and burdens, 9
May complete old contracts but cannot
make new ones, 12
May make himself liable, 12
Contracts for personal skill of con-
tractor, 10
Named in the contract, 11
If named, contract not personal, 11
May submit to arbitration, 522
Liability for torts of decedent, 12
EXHIBIT :
Of plans, etc., to contractor when con-
tract was entered into, 217-218
Use of, by experts in court, 892, 893
Of designs by author, loss- of rights
thereby, 816
EXISTENCE :
Of subject-matter, implied in contract to
repair, 676
Of works guaranteed by owner when,
674-680
EXPENSE :
Whom to bear, of pulling down works
for inspection, 280
EXPENSES OF CONTRACTOR :
Of moving outfit to field of operations,
693
EXPENSIVE :
Work becomes more so, 678-680
EXPERIMENTS :
Expert witness may employ, 892
EXPERTS' OPINION:
May be adopted by arbitrators, 501, 529,
531
EXPERT TESTIMONY :
When will it be admittc^d, 884
Does not require other like testimony to
meet it, 889
Weight and value, for the jury to de-
termine, 889, 890
EXPERT TESTIMOIJY—Contimud.
As to professional methods and standard
authors, 891
Must be from recollection, not from
memoranda, 877-880
Admitted to explain custom and usage,
619, 627
Legislation needed to improve, 901
EXPERT WITNESS (see also Wit-
ness) :
Defined and described, 891
Who may he an expert, 891
Engineer or architect, as, 867-901
Treatment of subject, 867
The consultation, 868-874
Esteem in which they are held by
Bench and Bar, 870
Views of learned text-book writers re,
870
A champion of his client, 872
Bias and prejudice attributed to him, 870
Accused of having a biased and warped
judgment. 870, 871
Little help to a court, 860
Opinions of completed work. 360, 437
Expected to be impartial, 872
Is a hired advocate, 872
Candid opinion may be had, 873
His duly to seek to improve the situa-
tion, 901
Behavior of. in court, 882, 884
May take time before answering, 868
Is justified in taking stand. 874
Cannot decide question at issue, directly,
890
Cannot determine questions which are
for the jury to decide, 885, 886, 890
What questions he may be asked, 884-
891
Should seek confidence of court, 882
Qualifications of, 883, 891
Competency of, determined by trial
court, 883
Privileges of, are determined by trial
court, 882, 883
May be asked hypothetical questions,
■ 887, 888
Required to answer categoricall}', 874
Conduct upon the stand, 894
May employ practical illustrations and
experiments, 892
Use of memoranda and copies, 878
May use books, charts, or prepared mem-
oranda to refresh memorv, 877-880
Use of photographs, 879, 880
His right to use models and make tests
rests with trial court, 893
Use of books on stand, 876-878
May adopt statements of book as his own^
876-878
May be questioned re books, 876
When he may testify, 884-891
Need not have been a specialist in the
fcubject-matter, 891
S66
INDEX.
JReferences are to sections.
EXPERT WYTimiS^— Continued.
Must contiue his testimony to subject in
which he is skilled, ^91
Must have regard for the understanding
of his audience, 869
Position in trying to sustain untruths,
868
Not a deliglitful position, 873
Must undergo inquisition, 899
His knowledge, character, and experi-
ence may be gone into, 899
His preparation for the stand, 875-881
Must inform himself, 875
Should take time to investigate, 868
To carefully inspect scene of contro-
versy, 879
Must possess himself of all the facts, 879
Should make personal examination of
subject matter, 888
Wlien he has knowledge of facts of case,
888, 897, 898
Should be prepared to explain his con-
clusions, 881
Should be prepared to convince others,
875
Should fortify his opinions, 881
Need not prove certain things, of which
courts take notice, 892a
Not required to determine many ques-
tions, 885, 891
Not required to prove usage, 627
His aelvice to fellow-experts, 894
A-i counselor and adviser to attorney,
IV, 895-898
Recovery for services as adviser to at-
torney, 898
Recovery for services, 896
Right to extra pay for opinion, 896
His time and services should not be re-
quired without compensation, 896
His opinion his property, 896
If no extra pay, then no extra prepara-
tion, 900
In criminal and civil cases, 896, 897, 898
Sometimes compelled to testify in crim-
inal cases, 897, 898
If he knows facts, he must testify, 898
^EXPRESS PROMISE :
Starts statute of limitations anew, 118
EXPRESSIONS :
Made clear by parol evidence, 122-126
EXPRESS STIPULATIONS:
Ar(! rigidly construed, as re extra work,
552
EXTENSION OF TIME (see also Date ;
Waiver ; Works) :
Effect of. on contract stipulations, 724
Effect when no provision therefor, 574
Agreement for should be incorporated
into contract, 574, 724
By written consent of engineer, 326
Its effect on liquidated damages stipulat-
ed, 324-336
EXTENSION OF Timi\— Continued.
Implied from stipulation for liquidated
damages, 326
Not to 'amount to a waiver of right to
terminate contract, 725
Granted alter time for completion had
passed, 727
Releases surety, 20 (see also Surety)
EXTENT :
To which changes may be made, 572-577
EXTRA PAY :
For better work or materials than con-
tract requires, 680
For hard pan. contract having been re-
scinded, 737
EXTRA SERVICES :
Rendered by employee, no recovery
without express agreement, 810
EXTRA WORK OR EXTRAS (see also
Additions; Alterations; Changes;
Omissions ; Works) :
Stipulations to avoid :
What is extra work, 535
Should be avoided, 535
Stipulations to avoid, 534-544, 551, 571
Stipulations in regard to, 534-544, 551,
57.1, 588. 592-594, 597, 598
Express waiver of, an expensive stipu-
lation, 537
None whatever to be allowed, 535
All claims for, expressly waived, 586,
537
No recovery for if not authorized,
371-380, 552-554
Liability for, without written order,
564-569
Recovery for when not ordered in
writing, 549
Authority to order, 552-558
Who may authorize ? 554
Request is not an order for, 566
Necessary to completion, ordered by
owner, 557, 5(i7
Done to conform with city ordinance,
547
Engineer cannot render his employer
liable for, without special authority,
553
Engineer's authority in regard to, 595,
596
Ordered by engineer without special
authority. 371-380, 552-554
Ordered by engineer, authority im-
plied from previous orders being
paid. 377
Required, with promise to effect a
saving in other parts of the work,
378
Ordered by individual members of a
founcil or committee, 555-557
Ordered after date of completion, a
INDEX.
867
'References are to sections.
EXTRA WORK OR EXTRAS— Cowt.
Stipulations to avoid — Continued.
waiver of stipulation requiring it to
be done on time, 325
Payment for, recovered back, when
formalities stipulated have not been
observed, -545
When contract work is definite, 584
Plainly and clearly outside of contract,
559-569
Not mentioned in contract, 600
Limits of contract job not defined, 601
Much more difficult, and of a different
character, 584
Excavations below grade, 623
Ordered by new and supplemental
agreement, 559-569
Work under separate and independent
contract, 569
Subsequent promises to pay for, must
be for a consideration, 131
Contract prices prevail, 572-577
Promise to pay extra compensation for
work included in contract, is not
binding, 66, 378
Notice to owner that work ordered is
extra, should be given, 578-581,
689
Rights to, defeated by failure to make
claim for it, 238, 578-581
Done with knowledge of directors,
o57
Knowledge of owner a factor in fixing
his liability, 567
Orders in presence of owner, 567
When preliminary estimates are wrong,
588, 589
Caused by engineer's mistakes, 421,
435
Resulting from engineers mistakes,
421, 485. 587, 596
Work of another description, 595
Questions, re, left to engineer :
Engineer's decision in regard to, 393-
394. 592-599
Enorineer may determine value, 592-
596
Contractor bound by engineer's esti-
mate when he has acquiesced, 595
Engineer's decision, re, not conclusive
unless so stipulated, 395, 595
Engineer's determination of, confined
to kind expressly enumerated, 400
Not included in reference to engineer,
393-896
To be determined by mode provided
in contract, not by specifications, 228
Disputes re, submitted to arbitration,
597, 598
Claims for, submitted to arbitration,
ratified, 558
Power to determine, questions re. not
power to fix damages for owner's
breach, 596
EXTRA WORK OR EZITRAS-Coni.
Instances :
Examples of, due to changes, 577
Changes, presumed to be included in
contract, if no agreement for extra
pay, 566-568
Caused by changes in plans, 584
Caused by change of plan by owner
552
Change unbeknown to subcontractor^
567
Instances given in work, 599-602
Bill not presented until after final
payment, 521
Profits sometimes confined to, 535
Terms and expressions creating, 599-
602
Determined by custom and usage, 590
Contractor may refuse to perform, 460
Parties unable to agree upon a price
for, 543, 544
Contractor not to interfere with othera*
undertaking, 543
Must be done with care, 596
Must be completed within reasonable
time, 585
When necessary to complete withia
contract time. 585
An excuse for delay, 585
Not an excuse for delay, 675
No extra allowance of lime for doing,
314
An excuse for delay, and to escape
liquidated damages, 324
When appropriation is iusufladent, 47,.
580
When work is required to be let to
lowest bidder, 53
Value of, under contract required to
go to lowest bidder not recoverable,
157, 158
Cannot be ordered under contract re-
quired to be given to lowest bidder,
157, 158
Not named in advertisement for pro»
posals for public work cannot be
included in contract, 157
Orders for:
To be made in writing and claim pre-
sented, 539-542
No recovery for, if not made as re-
quired by contract, 460, 545
No recovery for, if not ordered as re-
quired by legislative act, 545
Must be made as required by contract,
though engineer has power to make
alterations, etc., 552
By owner or company, 559-569
Done at request of owner without a
written order, 546
Ratification of unauthorized orders^^
558
Ratified by part payment of estimate,
558
€68
INDEX,
Heferences
JE3XTRA WORK OR BXTHAS—Cont.
Orders for — Continued.
Progress certiticales are not written
orders, 548
Want of written order cured by final
certificate, 549
J'ACILITIES FOR INSPECTION
CouLraclor to provide, 379, 280
-FACTS :
Versus opinions in court, 884
Of wbicii courts will take notice, 892a
Kuovvn to expert witness, 888
FAILURE (see also Engineer) :
Of engineer, to do his part, 439
Of eugineer, to disapprove, 441
Of contractor (see also Breach of Con-
tract ; Contractor ; Rescission ;
Termination) :
Owner may terminate contract for,
711-717
Must not have been willful or ob-
stinate, 698, 699
Is liable for, though works were de-
stroyed, 676
Of enterprise :
Provisions for, 742
Of owner (see also Breach op Con-
tract ; Owner ; Rescission) :
To perform his undertakings, 326
Delay in doing his part, 326
To have surveys made, subcontractor
delayed, 755
To appoint engineer. 354
To make specific payments, 686, 687
To exercise power to terminate con-
tract a waiver of right, 726
Of structure :
From defective plans. 237-248
From negligence of city engineer, 248
After completion and acceptance, 239
JALLING BRICK :
Injuries from, liability therefor, 640a,
641
F'ALSE MEASURE OR WEIGHTS :
Mistakes due to the use of, 433
FALSE REPRESENTATIONS. See
Misrepresentations.
FAULTY INTRODUCTION :
To stipulation making engineer's deci-
sion final, 369
FIDUCIARY (see also Agent ; Engi-
neer or Architect ; Owner) :
Acts must not be inconsistent with
duties, 84, 85
Can have no interests in conflict with
tliose of his principal, 42
Can have no personal interest in con-
tract, 85
Usages that strain relations between him
and employer, 616
Engineer to company, 42, 514^518a
are to gections.
FINAL CERTIFICATE (see also En-
gineer's Certificate ; Estimate) :
Of eugineer, what is, 473
When is engineers decision, 335
Should be made conclusive, 482
Conclusive and binding over progress
certificates, 780, 781
"Withheld for defects discovered after
progress certificate given, 467
FINAL PAYMENTS (see also Pay-
ments):
Preliminaries to, 750-789
Not included in term " payments," 411
To execute a release of all claims before
it, 763
FINAL SETTLEMENT :
Not to be prejudiced by monthly esti-
mates, 781
FIRE:
Works destroyed by, 671-680
Liability of city for lack of water, 645
FIRE HOSE :
Contract for, to lowest bidder, 161
Must be advertised, 161
FIREWORKS :
Need not be advertised, 164
FIRMS :
As parties to contract, 5
FIXTURES :
Contract for, and building burned, 676
FLOODS :
Works destroyed by, 671-680
FLOOR :
Gave away from overloading, 644
FLOORING :
Not mentioned, but required to com-
plete house, 600
FOREIGNERS :
Employment of, on public work prohib-
ited, 144
FOREMEN :
To be kept upon works by contractor,
288
FORFEITURES (see also Liquidated
Damages) :
Stipulations for are not in favor of
courts, 315-317, 720
Failure to claim a waiver of right to it,
325
Should be acted upon before time for
completion has expired, 724
Certified check of bidder, 168
FORGERY :
For making unauthorized changes in
plans, etc. , 234, 235
FORM OF ACTION :
Changed by alterations, 574, 575
FORMS ;
Of advertisement for proposals, 133-
» 135
INDEX.
869
References are to settiona.
rORMS — Continued.
Of certificate (see also Engineer's Cer-
tificate) :
Should be agreed upon, 476
Of ceiiiticate required, 470-480
Wlien engineer designated is a firm,
505
Of contract (see also Contract Forms) :
The introduction, 200-202
Mutual agreements expressed, 203-205
Formal execution, signed, sealed, wit-
nessed uud delivered, 798, 799
For extension of time to be endorsed
on contract, 727
Of notice : ^
To bidders in regard to work, 145
Recommended for proposal, 151
Of proposal for public work, 185
rORTHWITH :
Meaning of word, 310
FOUNDATIONS :
Included under term "building" or
"wall." 600
Contractor to guard against defects in,
281
Imperfect, liability of engineer or archi-
tect, 837
Failure to bore for and investigate, 838
TRANOHISES :
Sale of must be for cash, 139
FRAUD (see also Engineer or Archi-
tect) :
Contract must not savor of, 419
Practiced to induce one to sign a con-
tract, 794
Parol evidence of, in written contract,
129
In absence of, no recovery from con-
tractor for defects after acceptance,
469
FRAUD AND COLLUSION :
Defined by the courts in divers terms,
428
What amounts to, in words of courts,
428, 429
Of engineer or architect :
When a quasi-arbitrator, 423-432, 437
Effect on his certificate or award, 422-
432, 437
Voids his certificate, 422, 426-432
Renders certificate null and void, 427
Terminates his powers, 437
Relieves contractor from producing
certificate, 423-432, 437
Charged to company as principal, 426
Must be alleged and proven, 427, 440
What is a good and suflicient declara-
tion of, 427
Cannot be presumed from mistakes,
430
Mistakes amounting to, 428, 429-437
Is diflicult to prove, 426
FRAUD AND COLLUSION— Co;/ f£?.
Of engineer or architect — Continued.
What is good evidence of, 149
Without connivance or collusion of
owner or company, 424-432
Action at law, dilficulties met 426
Action at law when he is strictly a
referee, 426
Between him and contractor, 512, 518a
FRAUDS, STATUTE OF. See Stat-
ute OF Frauds, 98-111.
FRAUDULENT WORK :
On part of contractor, what is? 120
FREE PASS :
Compensation for injuries while riding
upon, 864
So called, are given for some considera-
tion, 865
Without a waiver of damages from negli-
gence, 866
Statute laws forbidding the use of, by
public officers, 866
FURNISHED ON GROUND :
Meaning of words, 271
GARBAGE :
Removal of, need not be advertised, 161,
164
GARBAGE CREMATORY :
Patented, in bids for public works, 164
GAMBLING CONTRACTS:
Against public policy, 83
Money lent for gambling, 83
GARMENT :
Undertaking to make, 675, 676
GENERAL :
Meaning of word as used in custom and
usage, 610
GENERAL FUND :
Cannot be drawn from to pay for works
to be paid for out of a special fund,
789
GENERAL INSTRUCTION :
For bidders for public works, 136
GENERAL MANAGER :
Right to a lien for service, 861, 862
GOOD FAITH :
Powers of engineer must he exercised
in, 404, 429-437, 745, 746
GOODS :
Sale of, under statute of frauds, 98-102
To be manufactured :
Sale of, under statute of frauds, 101
GOOD WORKING ORDER :
Requires more than to be in that condi-
tion at the moment of completion, 257
GOVERNMENT :
A party to contract, exception made ia
rules for interpretation of contract, 280
Is exempt from operation of statute of
limitations, 116
870
INDEX.
References are to sections.
GRADING :
Meaning of term, 623
GROSS ERROR :
Gross error amounting to bad faith or
fraud, 422, 428-437
GROUNDWORK OF LAW :
Governing submissions to engineers and
architects, 445
GROWING CROPS OR TIMBER :
Contracts for the sale of, 106
GUARANTY :
In specifications, cannot be ignored by
engineer. 388
Of suificiency of plans, etc., 236-241
In regard to work, not to be controlled
by specifications, 228
Of perfection of plans, or of safety of
structure, not implied. 829, 858
Exacted from lowest bidder, 157
To perform an impossible act, 669
By owner that site of works is not dan-
gerous, 674
HARD-PAN (see also Excavations) ;
Defined and described. 679
Extra compensation for, 679
Determined by custom and usage, 590,
623. 627, 629, 679
HARDSHIPS (see also Contractor):
Considered by American courts, 748
Imposed on contractor lessens competi-
tion, 758
Of a contractor, alterations, 578-583
Of bidder to be preferred to a rule which
would injure the public, 157
No extra pay can be allowed by en-
gineer to relieve against, 385-386
Will not relieve from statute of limita-
tions, 115
HEARING :
. By arbitrators :
Parties are entitled, 493, 527
Arbitrators and umpires must grant,
494, 497, 526-528, 582
Of one party without the other, 527
Party absents himself, 528
Conduct of hearing, time, and place,
528
By engineer :
Intention re, should be expressed, 497
• Waived, if not stipulated for. 494, 496
Provided that he may proceed without
giving one, 347
Estimate and certificate may be made
without notice, 49"i-498
Wlien selected because of his personal
skill, 498
Contractor is continuously present, 498
Is continuous during construction, 498
At what stage of work shall it be
granted, 498
HEIR :
Is not the representative of a contractor,8
HIGHWAY :
Materials deposited in, liability for in*
jury, 663
Ownership of materials in, 266
HINDRANCE :
Of company, to excuse certificate, 422,.
438-440
HIRING (see also Employment, etc.) :
Of a servant, evidence of relation of
employer to employee, 654-668
Of engineer or architect, 800-859
Term of service not determined by cus-
tom, 616
HOLIDAYS, see Sundays.
HONEST JUDGMENT (see also En-
gineer or Architect ; Fraud) :
Engineer must exercise, 429-432
If engineer has exercised, it cannot be-
wrongful, 404
HONESTY :
Value of, to an engineer or architect,
518a
HORSE AND CARRIAGE :
Misconduct of driver furnished, liabilitjr
therefor, 657
HOURS (see also Day ; Wages) :
In a day's work fixed by statute, 136,.
144
HOUSE :
Cellar and foundations are part of, 600
HUSBAND AND WIFE (see also Par-
ties) :
Contracts between, 26
Promise by one to pay debts of the other,.
110, 111
As agent for one another, 26, 38
HYPOTHETICAL QUESTIONS (see^
also Engineer or Architect ; Ex-
pert Witness) :
,May be asked of experts, 886, 887, 888
Propriety of, determined by trial court,
883
Should embody all the facts, 887, 888
Cannot be based upon facts not shown,.
May be based upon disputed facts, 887,
Must be based upon facts deducible from.
evidence, 887, 888
IDENTIFICATION :^
Of papers, plans, etc., by parol evidence,
217
IDIOCY, INFANCY, INSANITY :
Disabilities to operation of statute of
limitations, 114
IDIOT :
Contracts of, are voidable, 25
IGNORANCE :
Of engineer is chargeable to owner, 446'
INDEX.
871
Meferences are to sections.
IGNORANCE— Continued.
Of usage must be shown to relieve party
from it, 611
ILLUSTRATIONS ;
Expert witness may make practical, 892
IMMORAL CONTRACTS, see Con-
tracts, 87
IMPLIED CONTRACTS (see also Con-
tracts Implied in Law) :
No implied contract, when the law ex-
pressly forbids one, 52, 53 •
On part of owner to keep structure in
existence, when ? 674-680
Condition precedent will not be, 416
IMPLIED WARRANTY:
Of sufficieucy of plauson part of owner,
238
IMPOSSIBILITY (see also Destruc-
tion) :
Of peiformance :
Of a construction of contract, 669, 670
Proved to be possible, 669
Surety released by, 22
Caused by act of owner, 670
An excuse for not producing en-
gineer's certificate, 422, 438
IMPROVEMENTS (see also Works):
In existing works and all destroyed, re-
covery, 676
INADEQUACY OF SPECIFICA-
TIONS. See Insufficient Plans.
INCAPACITY :
To contract, 23-28
Of contractor, no excuse for poor work,
257
INCOMPETENCY (see also Engineer) :
Of engineer to determine questions aris-
ing, 351-363
Of engineers excuses production of es-
timate, 435
Power to dismiss employees reserved to
engineer, 647-650
INCOMPLETE :
Certificates of engineer, 474-480
Recovery by contractor wh6n perform-
ance is, 697-704
INCORPOREAL PROPERTY (see also
Copyright; Employee; Invention):
In architectural and engineering de-
, signs, 816-825
Protected only so long as author retains
control of it, 816
Rights of purchaser in, 817
INDEBTEDNESS :
Limit of, of a city, 45-46
Should be created by promise only, 410-
412
Conditioned upon obtaining engineer's
certificate or approval, 342
INDEPENDENT CONTRACTOR (see
also Contractor; Master and Ser-
vant) :
Contract should create relation, 652
Distinguished from a servant, 652-668
Relation to owner. 65*^-668
Right to select, hire, and pay, sometimes
determines relation to owner. 661
Cannot be controlled as to means and
manner of doing work, 660, 663
Relation to owner destroyed by actual
control assumed, 664
May be directed in regard to results of
work, 660-663
Usually carries on an independent em-
ployment, 662
Liable for injuries when plans are sufli-
cient, 244
INDIVIDUAL MEMBERS (see also
Agents ; Extra Work ; Public
Officers) :
Acts of, do not bind the board, com-
mittee, etc., 555-557
Of city council, orders by, not binding,
555-557
INDIVIDUAL RIGHTS :
In English and American courts, 748
INDULGENCE :
Of contractor, discouraged, 535
In enforcing contract — example, 577
INEBRIATES :
Contracts of, 25
INEVITABLE ACCIDENT:
By which works are destroyed, 674
INFANTS (see also Parties) :
Capacity to contract, 24
Contracts are voidable, not void, 24
Necessaries, liability for, 24
As agent, may be one, 24
INFERIOR MATERIALS :
Inspection and rejection of, 276-283
INFORMAL BIDS (see also Bids) :
Failure to name sureties, 169
INFORMATION FOR BIDDERS :
To prepare bids, 133-140
As to work, should be full, 41, 154
As to powers of parties and their agents,
41
Additional, volunteered by engineer,
155
INJUNCTION :
Must be honestly obeyed, 859a
Engineer must obey, and be respectful
to court, 859a
Situation of engineer, 859a
Acting under advice of counsel, 859a
When court has exceeded its powers,
859a
When owner is about to annul contract,
747
Efifect on engineer's certificate, 438
872
INDEX.
Jteferences are to sections.
INJUNCTION— ContiiMed.
An excuse for n on -performance by con-
tractor, 556, 689
Delays caused by, and liquidated dam-
ages, 326, 689
Ag^aiust contractor, to prevent his inter-
fering with owner, 707
By contractor against trespassers, 326
Refused, to prevent an action at law by
contractor, 426a
INJURIES :
Which are a natural result of work un-
dertaken, the owner is liable for, 641,
652
Liability for, which results from per-
formance of work in manner required,
640a
Liability for, from improper and negli-
gent performance of work, 652
Resulting from use of defective plans
and specifications, 237-248
Resulting from negligence of two or
more persons, 244
Damages from, to persons, property and
works assumed by contractor, 634-636,
646
Contracts releasing common carriers from
liability for injuries, 86
INJUSTICE AND OPPRESSION :
Relieved against by American courts,
748
In stipulations of construction contract,
455, 456
INSOLVENCY OP CONTRACTOR :
Title to materials to pass to owner, 273
INSPECTION (see also Materials) :
Contnictor to provide facilities for, 279,
280
Work to be opened for, if required, 280
Acceptance or rejection of materials and
work, 276-280
An excuse with contractor for defective
work, 120
Liability for defects of work done under
inspection, 237, 467
By engineer relieves contractor from lia-
bility for defects of, no concealment,
446, 463-469
Not to excuse defective work, 256, 276,
417
Not to preclude subsequent rejection of
inferior work, 282
Of materials, when purchased, 277a
By engineer of materials delivered con-
clusive when, 467
Should prevent material errors and omis-
sions, 839, 840
Liability of engineer for, 837
Cannot be excused by showing presence
of owner, 838
Contractor to pay for, in case of delay,
312
Rendered impossible by owner, 440
INSPECTOR (see also Engineer or Ar^
chitect) :
His Knowledge is owner's, 849a
His decision prevails in accepting ma-
terials, 446
Rejects good materials, and new ones fur-
nished without protest, 580
Held liable for non-performance of duty,
839
His decision as to building permit final
and without appeal, 344, 404
INSTALLMENTS (see also Paymentb) :
Preliminaries to payment, 750-789
Not fully earned, cannot be recovered,
730
Work to be paid for in, destroyed, 674-
677
Failure to pay, a breach of contract, 686,
687
Payment of, without certificates, a waiver
of stipulation requiring them, 417
INSTANCES :
Of extra work, decisions, 599-692
Of material alterations of a contract. 577
Where important changes have beea
made, 580-583
Of substantial performance, 702
Where termination of contract by owner
or engineer has been upheld, 735
In which contractor has been held a ser-
vant of owner, 665
Of questions not for experts, 885, 886
Of invention, between employer and em-
ployee, 825
Of engineer's failure to do his duty, 837-
840
Of care and skill required of engineers,
837
In which engineer's certificate has been
held insufiicient, 475-478
Where certificates have been revised, 490
Of mandamus and injunction, 859a
Where specific performance of construc-
tion contracts has been decreed, 706
Of custom and usage :
Measurements of earthworks, 623,
629 .
Allowing for shrinkage, 601
Measurement of brickwork, 620, 629
Measurement of lumber, 625, 629
Measurement of plastering, 622, 629
Measurement of stcnework, 621, 629
INSTRUCTIONS AND CONDITIONS:
For bidders :
Defined and explained, 666
Should give full information, 139
Form for public works, 136, 145, 151,
165, 167, 170
INSTRUMENTS, WRITTEN (see also
Written Instruments) :
When a part of others referred to, 214—
219
INDEX.
873
Jteferencea are to sections.
INSUFFICIENT PLANS (see also Suf-
ficiency OF Plans; :
Liability of parlies lo contract, for, 237
Failure of structure after completion, 239
Liability for injuries lo third parties, 243
INSURANCE :
Taking out of insurance evidence of ac-
cepiunce of works, 557, 675
Of works undertaken by contractor,
672, 673
To be taken in names of owner and con-
tractor jointly, 673
INTENTION OF PARTIES :
Is to be gathered from study of whole
contract, 549, 730
"Will prevail when not contrary to public
policy, 127, 227. 446, 674
To be determined by engineer, 401-405
In contracts to perform impossibilities,
669
Re hearing, should be expressed, 497
To be bound, must accompany signature,
795
To pass title to materials to be ascer-
tained, 271-273
Rescission of contract, a question of, 573
In publication of designs, 816
INTENTIONAL :
Conti actor's default must not have been,
699
INTEREST :
On payments due and unpaid, 626
INTEREST OF ENGINEER :
Should be known to parties, 509-518A
On objection to his serving as an umpire,
364-366
When he has pledged the cost of works,
510
In contract, with employer, 508-511
In common with contractor, 512-518A
Of arbitrator, trifling and remote, 523
Of an arbitrator in cause he is hearing,
364-366
Public ofllcer in contract may invalidate
it, 42, 512-518
Of superior officers in contractor's work,
518a
INTEREST IN LAND .
Contract for work on land, or for im-
provement thereof, not within statute
of frauds, 106
Contracts relating \o use of lands, and
statute of frauds, 106
Special agreements in regard to, 107
INTERFERENCE ;
With engineer in charge, 535
Of third party, and certificate refused,
438
INTERPRETATION OF CONTRACT
(see also Contracts, Meaning and
Intention) •
xs for the court, 222
INTERPRETATION OF CONTRACT
— Continued.
All parts must be considered, 227
Must be from a study of all its clauses,
730
Evidence to assist in, 123-126
Meaning adopted by parlies, 580
Surrounding circumstances to be consid-
ered, 227
Contract terms construed against party
first using Ihem, 230
Most favorable lo work and owner to be
adopted, 229, 230
Written matter will be reconciled to
printed matter, if possible, 232
Tliat which is consistent with both
conlmcts and specifications will be
adopted, 228
Punctuation, grammar and bad spelling,
233
INTERPRETERS :
Cannot be compelled to serve witkout
compensation, 896
INTOXICATION :
Contracts made while intoxicated, 25
INTRODUCTION :
To clause making engineer's decision
final, faulty, 369
INVENTION (see also Patent) :
Defined and described, 824
Who is the inventor, 824, 825
What does it consist of, 824
Ownership of, 815-825
Instances of, by employee, 825
Rights of employee in his own, 819-825
By employee, use of employer's materials
entitles him to use it, 825
Power to invent may be the subject of
sale, 823
INVENTOR :
Not always natural-born. 823
May sell his inventions before they are
made, 819
INVITATION :
To bidders, form of advertisement, 132,
133-135
IRREGULARITIES (see also Award ;
Bids ; Bidders ; Contracts) :
In requirements of statute or charter by
which work is authorized, 139
In letting work to lowest bidder, 54
JEALOUSY :
Of courts, in regard to decision of engi-
neer being made final, 342-345, 406-
408
JOINED :
Plans and specifications to contract, 214-
220
JOINT CONTRACTOR :
Liability when works are destroyed, 676
Breach of contract by, 685
874
INDEX.
References are to sections.
JOINT OWNERS :
Breach or rescission by one of them, 685
JOINT PARTIES :
Liability as employers, 814
JUDGES (see also Courts) :
Who have been pioneers in construction
law, 366 ,
JUDGMENT :
Questions requiring the exercise of should
not be delegated to assistant, 500-504
Must be exercised in good faith, 171, 173
JUDICIAL ACTS (see also Minis-
terial) :
Distinguished from ministerial, 180
Of public officers, must be exercised in
good faith, 171, 173
May not be delegated to assistants, 501-
504
Liability for improper performance of,
179, 844-859
Selection of plan of public work, some-
times held one, 247
JUDICIAL DUTIES :
Liability for misconduct in the perform-
ance of, 844-849
JUDICIAL NOTICE :
Of well-known facts by court, 892a
JUDICIAL OFFICERS :
Distinguished from judges of courts, 845,
846
Engineer and architect are, 846
JUDICIAL POWERS :
Defined and explained, 844
Of engineer and architect, 846
JURISDICTION :
Of courts over parties to contract, 58
JURY :
To determine intention of parties in
making changes, 577
Cannot determine questions left to engi-
neer, 360, 437
Visiting scene of controversy, 892, 893
If they can fully comprehend case, ex-
pert evidence not admissible, 884, 890
Determines weight of expert testimony,
889
Experts cannot decide matters which are
for them to decide. 886, 890
Expert must consider understanding of,
869
KEEP IN ORDER :
Requires contractor to rebuild works
when destroyed, 673
KNOWLEDGE :
Of an order of the court, 859a
Of custom and usage must be shown,
610-612
Of customs and usages presumed, 612
Of members of council imputed to city,
555-557, S49a
KNOWLEDGE— Con</n«ed
If expert has, he must testify, 898
Required of an expert, 891
Of owner, that extra work is being done,
557, 567
Of owner, not a waiver of written order
for extras, 566
Of engineer, imputed to his emplo} er,
491, 849a
Of engineer's acts, a ratification thereof,
558, 849a
LABORERS :
Rights under clause requiring contractor
to pay all claims, 757
Right to sue on bond to pay wages, 765
May have a lien, when contractor has
covenanted against liens, 762
LABOR AND MATERIALS :
All claims for to be settled, 750-754
Bills for, required by law to be paid be-
fore final settlement, 755
Legality of provision requiring all claims
to be paid, 756
Claims for, disputed when contractor is
required to pay before final settlement,
758 .
LABOR LAWS AND LIMITATIONS:
Must be complied with. 144
Constitutionality of, in some states, 144
Legality of many is doubtful, 144
LACK OF SKILL :
Cannot excuse an unworkmanlike job,
257
LAND:
Owner who collects and keeps anything
likely to do injury must at his peril
confine it, 646
LANDSLIDE :
Destroys the works, 674
LANDLORD AND TENANT :
Owner and contractor are not, 767, 466,
469, 470
LANGUAGE :
That makes engineer's estimate a condi-
tion precedent, 410-412, 415
LARCENY ;
By servants of contractor, 767
Of plans by architect, 815
LATENT DEFECTS:
Of soil, liability therefor, 674
LATERAL SUPPORT :
Of neighbor's land cannot be removed
without preventing injury, 643
LAVATORIES :
To be furnished by contractor, 285
LAWS AND ORDINANCES:
Contractor must comply wiih, 680
Of what place controls," 57, 58, 628
Law of ])'ace where parties reside
governs, 58
INDEX.
875
JReferencea are to sections.
LAWS AND ORDINANCES— Ctfwe.
Law of place where contract is to be
performed coutrols, 58
Pioueer judges in fixing laws of coustruc-
lioii, 866
Forbidding public officers from accept-
ing or utjing pusses, ^66
Of sv>cieties, sects, and associations, 344,
526 .
liAWYERS :
Poor opinion of experts, 870
Sometimes make mistakes, 871
IiAX ENFORCEMENT :
Of contract, re alterations and its effect,
577
Of contract stipulations, 535
LEGALITY :
Representations as to, of a contract, 129
Of agreements for rescission of cotract
by owner for certain causes, 720
LEGAL QUESTIONS :
Difficult ones arise in work, 361
LEGAL PROCEEDINGS :
Against contractor a cause for owner to
terminate contract, 713-716
LEGISLATION :
Needed to improve expert testimony, 901
LEGISLATURE :
May ratify illegal contracts, 46, 141
May ratify contracts ultra vires a corpor-
ation, 142
LENIENCY :
Of American courts, 748
LESSEE :
Engineer a lessee of works, 343, 364-366
LETTER :
Acceptance of offer by letter, 95, 739
Proper mailing of, is evidence of receipt,
95, 739
LEVELS, see Lines and Levels.
LEX-LOCI :
Law of what place governs, 58
What custom or usage controls, 57, 58,
628
LIABILITY (see also Contractor) :
Of Contractor :
"What may be assumed, 638
Assumed by him does not relieve
owner, 638
Wlio can neither read nor write, on a
contract, 794
Por damages from default, 704
For destruction of works, 671-680
For injury to works, persons, and
property, 634-646
For injury to water- and gas-pipes, 638
For delay caused by another contrac-
tor, 324
And engineer for trespass on other
estates, 275
LIABILITY— Continued.
Of engineer or architect:
For lack of care and skill, 826-843
For not detecting defects and omis-
sions, etc., 838-840
To owner for mistakes, 838-840
For acts of assistants, 843
As an agent, for misconduct, 834
Limited to employer, 842
To his employer for false estimates,
516
In a professional capacity, 826-843,
858
As a public officer, 850-859
For extras ordered without authority,
553
Of engineer and contractor jointly,
840
In damages for withholding his cer-
tilicate, 440
When his functions are judicial, 844-
849
For discretionary acts, 176-180
Of owner, in damages (see Owner) :
For act committed by himself, 640
When injury results from carrying out
contract terms, 640a, 652
For injuries resulting from work, 639-
646, 652
For certain acts, 638
To escape, work is let to independent
contractor, 651
Frequently depends upon his having
selected skilful engineer or archi-
tect, 244-248
To escape liability employees must be
competent, 644
For unauthorized acts of architect, 44X)
For misconduct of engineer, 841
For underestimate of architect, 841
For acts of contractor, under certain
clauses, 665-667
For acts of incompetent contractors,
644
For unskilful, careless, or lawless
acts of contractor, 639
For misconduct of contractor. In-
stances, 665, 666
Or contractor to contract, for defective
plans and specifications, 237-248 ^
For negligence of contractor, exists
only when relation is that of master
and servant, 652-668
For misconduct of servant furnished
to operate a machine, or drive a
conveyance, 657
For injuries resulting from failure to
cover sidewalk as required by ordi-
nance, 641
Imposed by charter, for negligence or
misconduct, 646
For injuries cannot be measured by
his pecuniary ability to pay damages.
653
876
INDEX.
References are to sections.
LIABILITY— Continued.
Of owner to pay for work :
Caused by uuforeseeu and unknown
difficulties, 584
Often dependent upon events that have
no necessary conneclion with work,
343
May be made contingent on engineer's
certificate, 409
Postponed until contractor shall fur-
nish engineer's certificate, 342, 525,
771-779
Contingent on engineer's decision, 335
Condition precedent to, may be waived,
413. 417
Measure of, to which he has assented,
407
Of owner, when a city :
For injuries resulting from the adop-
tion of defective plans, 245-248
For damages from insufficient plan
when the services of a skilful en-
gineer have been secured, 246-248
For acts of its officers in rejecting low-
est bid, 178, 179
Does not depend upon bond or con-
tract between it and contractor, 638
Does not relieve contractor, 645
Of Public Officers (see also Public
Officeks) :
On contracts executed, 855
For rejecting lowest bid, 176-180
For acts of assistants, 853
Mistake of city engineer, 858
LIBEL :
Charge that architect had received com-
missions from contractors held not, 514
LIEN (see also Mechanics' Liens) :
"Waived, by agreement, 761
None to be had on public works, 766
None can be had for damages from
breach of contract, 767
Right of engineer or architect to, 861,
862
Of arbitrator, on award, for services,
532
None for preparing plans, 861, 862
Superintendents, general managers, and
cooks not entitled to, 861
Contractor can have none, if surety has
covenanted none shall accrue, 761
Of subcontractor, when he knows con-
tractor has waived his rights to a lien,
762
Of subcontractor when contractor has
covenanted against liens, 762
Of materialman when contractor has
covenanted against liens. 762
Of materialman when he is assignee of
contractor who has covenanted against
liens, 762
Covenant against by contractor who is
also the owner, 762
LIEN — Continued.
Certificate of no liens to be furnished by
contractor before final payment, 760
LIEN LAWS :
Of diflierent states, 764
Objects to be attained, 862
Constitutionality of, attacked, 765, 862
To protect materialmen and laborers, .
273
Do not forbid agreement waiving rights
to a lien, 761
LIGHTS AND GUARDS :
In public streets, city must maintain, 645
LIMITATION, STATUTE OF, 112-121
(see Statute of Limitations) :
LIMIT OF COST :
Above which, work must be advertised,
160, 161
LIMIT OF INDEBTEDNESS :
Must not be exceeded, 44-47
Indebtedness includes what, 47
LIMITS OF WORK:
Not propt^rly defined, 601
LINES AND LEVELS :
Not promptly given, 326
Owner fails to furnish, 689
To be furnished by engineer, 297
To be preserved l)y contractor, 297
Contractor to be responsible for accuracy
thereof, 299
To be determined by contractor, 299
LIQUIDATED DAMAGES (see also
Damages ; Forfeiture ; Penalty) :
Fixed by contract stipulation, 311-314
Should be so denominated, 322
Stipulation of little use, when actual
damages can be ascertained, 317
Wlien actual damages cannot be ascer-
tained, 317-319
Amount of must be reasonable, 318
Must be commensurate with damages
suffered, 317, 319
Will be construed as such though called
a penalty, 316
Certified check with bid may be, 168
Stipulation for is good when actual
damages cannot be ascertained, 318
To recover or withhold owner must show
that actual damages cannot be as-
sessed, 318
To diminish, contractor must show ac-
tual damages suffered, or that amount
stipulated is unreasonable, 319
Instances where actual damage could
not be ascertained. 318
Matters to be considered in fixing amount
of, 320
For delay in completing certain stages
of work. 313,
Or a Penalty :
Often treated as penalty, 315-317
Is a penalty when, 322
INDEX.
References are to sections.
877
lilQUIDATED DAMAGES— Co7i<.
Or a penalty — Continued.
Will be held a penalty if circumstan-
ces permit. 315-317
If damages can be ascertained, will be
held a penalty. 315-317
Payable for any breach, however mi-
nute, 318
Stipulation for should not be inserted
to terrorize contractor, 319
Waiver of :
Stipulation for waived by ownei*, 335,
726
Subsequent agreements in regard to,
326
Assurance by owner that stipulation
will not be enforced, 326
When time for completion has been
extended, 324, 325
When work has been taken from con-
tractor, 323
Period, for which to assess when
owner has taken possession of works
To retain, termination of contract must
have been properly exercised, 731
When owner has, or has not, termin-
ated his contract, 732
Owner's failure to do his part, 324-326
When delay was caused by injunction,
326
Avoided by reason of alterations and
extra work, 324
Delay caused by other contractors, 324
Should not be a means of dissolving
contract, 319
For delay or failure to complete works,
311-326
Stipulation for, raises presumption that
delay was anticipated, 326
None assessed when owner has com-
pleted in time specified, 326
Assessed for assigning or subletting,
290
Not relieved by difficult construction,
casualties, etc., 321
Release of contractor from supported
on a consideration, 131
Contractor refuses to proceed unless
relieved from penalties, 705
Refusal to release contractor from
will not justify abandonment of
contract, 324
LIQUOR :
Not to be sold in works, 283
LITERAL COMPLIANCE :
With plans and specifications not re-
quired, 700-704
LOCATION :
Of railroad lines or depots, for personal
profit, forbidden by public policy, 81
LOCATION OP STRUCTURE, see
SiTB OF Structure.
LOSS OF PROFITS :
When profit-paying work is omitted, 582
LOT, BY :
Award may not be determined by, 531
LUMBER :
Custom and usage of, 625, 629
LUMP SUM :
When quantities and prices are given, 160
LOWEST BIDDER (see also Bids and
Bidders) :
For Public Work:
Party to contract, 50
Charters or acts requiring work to be
let to lowest bidder are imperative,
51, 138
Work " may" be let to, construed to
mean " shall " be let to him, 138
Requirement that he shall have con-
tract for works, 137
Right to contract for public work, 176-
178
Entitled to the award of contract, 17&
May not reject his bid, 140
Work divided between him and an-
other, 177
May prevent illegal awarding of con-
tract to another by injunction, 177,
178
When can he require the contract to
be awarded to himself, 176
Power to determine who is respon-
sible is discretionary, 172, 173, 845
"Responsible" has reference to other
qualifications than pecuniary, 173
Record as a contractor and builder may
be investigated, 173
Recovery of profits, when contract was
awarded to another, 179
Evidence that bid accepted was not
the lowest, 174
Lower offer made after bids have beea
opened. 171
Irregularities in awarding contract^
54
Work under contract contrary to law,^
no recovery can be had, 53
Conspiracies to prevent competition,
141
Work required to be let to lowest bid-
der, 51
What work must be let to him, 161
What contracts must be advertised ind
let to lowest bidder, 138
Contracts for a sum exceeding a cer-
tain amount to be let to, 160, 161
To determine, there must be a standard
for comparison of bids, 139
Requires a preliminary estimate to be
made, 53
Advertisement should include all the
work, 53
Should include nothing in his bid but
878
INDEX.
Jteferences are to sections.
IjOWEST BIDBEB,— Continued.
For public works — Continued.
what is culled for in advertiseQieut,
155
May be required to take certain ma-
terials at a valuation, 162
Right to make changes in his work re-
served, 158
Should undertake extra work with
cautio;i, 157, l58
Bids reconsidered after having been
rejected, 174, 175
Failure to acceptbid in lime siipulated,
174
Fails to enter into contract, 175
Abandons the work, 174, 175
Should have notice that his bid is low-
est, 183
Allowed to withdraw his bid, 175
Right to reject any bid, 171, 172
His contract is assignable, 15, 148
For private work, 186-188
Rights are subjects of express agree-
ment, 186-188
Implied agreement that contract will
be given to him, 188
MAGNETIC NEEDLE :
Variation of, judicial notice of, 629
Local attraction and mistake, 433, 629
MAJORITY :
Of arbitrators sign award, 530
Of a board or committee may act, 555-
557
MANDAMUS (see also Injunction) :
To require that a contract for public
work be awarded to lowest bidder, 176-
178
Requiring engineer to give certificate,
426
Position of engineer under, 859a
To compel comptroller to meet payments
on engineer's certificates, 445
To require parties to name arbitrators,
351
To require contractor to prosecute work,
705-707
When owner seeks to terminate contract,
747
MANNER :
Of doing work may be prescribed in
plans and specificctions, 663
MANUFACTURER :
Is liable to purchaser only, for defects,
842
MAPS :
Referred to in deeds, 224
For use of expert witness, 876-880
MAPS AND CHARTS (see also
Plans) :
Use of by expert witness, 879, 892
Subject of copyright, 816-818
Copied from others, 822
MAPS AND CHARTS— Continued.
Made from surveys and materials col-
lected while in employ of another, 821
Made from surveys for the government,
copyright of, 822
MARGIN :
Words written in are part of the instru-
ment, 477
MARK OR CROSS :
In signing contract, 795
MARRIAGE :
Contracts in consideration of marriage
within statute of frauds. 111
A disability to operation of- statute of
limitations, 114
MARRIED WOMEN :
Parties to a contract, 26
MASONS :
Liability for injuries to carpenter from
his defective work, 644
MASTER AND SERVANT : (see also
Independent Contractor) :
What makes the relation, 652-668
Is responsible for acts of servant, 652-
668
Right to select an important element in
determining relation, 661
Instances, in which general supervisioa
and direction do not create rela-
tion, 666
MATERIALS :
Inspection and rejection *.
Specifications for, 277a
Inspection, acceptance or rejection
of, 276-282
Engineer cannot ^rder better than con-
tract calls for, 586
Good ones rejected and new ones fur-
nished without protest, 580
Rejected which conformed to specifi-
cations, 446
More expensive than contract re-
quired, ordered and furnished, 586
No extra pay for better than contract
requires, 680
Cheaper ones used by consent, 568
Condemned, to be removed and re-
placed, 277
Designated in specifications proved
defective, 277a
Should be approved before using, 414
Bought subject to inspection, 415
Inspection of, not to prevent subse-
quent rejection, 282
Not warranted, if open to inspec-
tion, 256. 277a
When purchased with opportunities for
inspection no implied warranty as
to quality, 256
Property in :
Who to provide them, 260-262
Often a matter of intention, 265
INDEX-
References are to sections.
879
MATERIALS— C(9nfmw«<f.
Property in — Continued.
Ownership of old materials, 265-266,
602
Old cues, to become property of con-
tractor. 264-266
Old ones, lo be tuken by contractor at
a valuation, 263
When inspected and certified by en-
gineer, 271
Including in engineer's estimate does
not change title, 271
Of excavation of a public way, 266
Materials for ship, 272, 273
Belong to contractor until wrought
into structure, 271
To attach to and belong to premises
when delivered, 269
To pass to owner on bankruptcy of
contractor is contrary to English
Bankruptcy Law, 273
Brought upon premises, to belong to
owner, not a bill o^" sale, 273
Equitable interest of owner when de-
livered, 272
Furnished on credit of owner, 271
Contractor assumes responsibility for
loss or damage of them, 267
Prepared for works which are de-
stroyed, no recovery for, 676
Furnished for a building, but not used,
lien of materialman, 762
If suitable and prepared by contractor
should be used by owner in com-
pleting works, 738
Purchase or sale of :
Under statute of fiauds, 98-102
To two different parties, 97
The supply of which is a monopoly,
specific performance of a contract
to furnish, 707
Patented for public work, 163, 164
Bid to furnish when ordered, 184
Failure to deliver not excused by
burning of mill, 678
Disposal of:
Of waste and rubbish, 274, 275
To be deposited where directed by
engineer, 274, 275
Of excavation deposited upon another
contractor's finished work which had
to be opened, 602
Failure of owner to furnish, a cause
for rescission by contractor, 689
Deposited in highway and injury re-
sults, liability therefor, 663
Collected while in the service of an-
other and incident to it, 821
MATERIALS AND LABOR ; see La-
bor AND Material.
MATERIAL ON GROUND :
Meaning of words, 271
MATERIALS AND PLANT :
Property in, when delivered upon works,
267-273
To belong to owner during construction
of works, but contractor to be respon-
sible for their safe-keeping, 267-270
MATERIAL DEPARTURES :
From plans, etc., effect, 572-577
MATERIAL MEN:
Promises to, by owner, to pay contractor's
debts must be in writing, 110, 111
Paid money from owner, and applied to
contractor's general account, 758
Rights of, under stipulation requiring
contractor to pay all claims, 756, 757
May have lien, though contractor has
covenanted against liens, 762
Distinguished from subcontractor, 762
MEANING OF CONTRACT (see also
Construction ; Intention ; Inter-
pretation) :
Is for the court to determine, 126
Sometimes determined by jury, 619
Witness cannot testify in regard to, 126
Determined by custom and usage, 606
Must be doubtful ; to admit custom and
usage, 619
To be determined by engineer, 401-405,
428
May be determined without a hearing,
495
Engineer's decision and estimate, etc.
extra work, not ordered in writing,
549
Adopted by parties will prevail, 580
MEASURE :
Distinguished from estimate, 504
MEASUREMENTS (see also Custom
AND Usage ; Engineer or Archi-
tect) :
Rules for, in determining quantities, 381
Payment by, and works destroyed, 677
Rule of to be adopted, 381-390
Not according to contract, evidence to
show it. 382
By engineer incorrect, employer's loss,
421, 587, 596
Made by assistants. 501-507
Of brickwork, affected by usage, 620,
629
Of stonework, custom and usage of,
621, 629
MEASURE OF RECOVERY (see Con-
tractor ; Owner ; Recovery op
Contractor) :
By contractor :
For breach by owner, 691, 696
What is rule of recovery, 691-696
When prevented from performing his
contract, 690-696
880
INDEX,
Meferences are to sections.
MEASURE OF RECOVERY— Co7ii.
By contractor — Continued.
For expenses incident to preparation
for work, 693
When work is only partly performed,
692
When contract has been terminated
by owner, 728
He must either adopt contract or repu-
diate it, 691
Two lines of action he may pursue,
690-696
When contractor is in default, 697-
704
Contract price, less amount to com-
plete it, 443
MECHANICAL WORK:
May be performed by assistants, 501-504
MECHANICS' LIENS (see also Cove-
nant AGAINST Liens ; Liens) :
Provisions against, 759-768
Laws of different states differ, 764
Public buildings are exempt from, 766
For work, done by order of strangers,
768
MEMBERS OF BOARDS, ETC.:
Cannot act individually, 555-557
Cannot request delay pending an injunc-
tion suit, 556
MEETING OF ARBITRATORS :
Certain ones, parties need not be present,
• 527
MEETING OF MINDS :
Wbeu one party refuses to sign contract
prepared, 797
MEMORANDA ;
Of dates, quantities, and calculations for
use of expert witness, 877-880
Must have been made at time of occur-
rence, 877-880
Lost, and copies used by witness, 878
Use of by witness, 877-880
MEMORANDUM OF SALE :
What is a sufficient memorandum, 102
Of auction sale, not attached to contract,
215
METHODS ;
Prescribed in contract, must be em-
ployed. 381-383
MINISTERIAL DUTIES (see also
Engineer ; Judicial ; Public Offi-
cers) :
Distinguished from judicial, 844-849
May be delegated to assistants, 501-504
Liability of public officers for neglect in
performing, 180
MISCALCULATIONS :
Apparent in certificate, 484-491
MISCONDUCT :
Of arbitrators, may be shown by one
who dis.sented, .491
jm.SCO'ti-DTJCT— Continued.
Of servants of contractor, 652-668
Of driver of a hired livery, 657
Of employee, that will justify a dis-
cbarge, 802,810
MISFORTUNE :
Beyond control of either party, prevents
completion, 674
MISREPRESENTATIONS :
As to legal effect of contract terms, 122
As to legality of an instrument, 129
As to value, merits, etc., of an inven-
tion, 129
In soliciting subscriptions, 129
Of an employee to secure employment ;
liability therefor, 835
To secure a final settlement, 763
Liability of public officers for, 856
Claims of, a consideiations for promise
for extra pay, 69, 563
MISTAKES (see also Fraud) :
Of engineer or architect •
Are not frequent, 871
Not confined to industrial world, 871
Responsibility of owner for, 421, 435^
437
In his certificate, what may be done,
486-491
lu certificate can they be corrected,
482-491
Court of Equity will refer certificate
back to correct, 486-491
Pure and simple, may be a ground for
correcting his estimate, 434
In certificate, must ai)pear on its face
to be corrected, 486-491
What kind will avoid his estimate, 433
Must be such as prevented the exercise
of his judgment to avoid his esti-
mates, 429-437
Due to use of false measures, weights
or tables, 433
Must have deceived or misled en-
gineer, 433
Alone, not a ground for rejecting his
estimates, 429-437
In computing quantities, when work
was undertaken for a lump sum, 370
In his estimates, not a ground for re-
jecting them, 429, 430, 433
Extra work caused by, 421, 435, 581,
596
In bench-mark, affecting quantities,
434
In questions of law, 436
That amounts to fraud, 428-437
Burden of proving is on contractor,
432
A reason for rejecting contractor's
work, 448-451
Of parties :
In terms of contract, 88-97
As to terms of contract must je rea-
INDEX.
881
References are to sections.
MISTAKES— Continued.
Of parties — Continued.
son able, to excuse party from his
contract obligulion, 91
As to terms of contract must be shown
conclusively, 90
As to subject-matter of contract, 90, 91
As to price of subject-matter, 90
As to quality of subject-matter of con-
tract, 90
As to persons or parties to contract, 90
As to wages to be paid employee, 90
Of public officer :
In advertisement for proposals, 135
In awarding contract not according
to proposals, 90
His liability therefor, 32, 35. 36 ^
Of county surveyor and liability of
county for same, 248
MISUNDERSTANDING (see also Mis-
take) :
Of parties as to terms of contract, 88-90
MODE OR METHOD :
Adopted by umpire in arriving at con-
clusions cannot be questioned, 531
Of doing work may be prescribed in
specifications and plans, 663
MODELS :
Structure to be built after, 223
Brought into court, 892, 893
MONEY (see also Payment) :
Withheld to pay for labor and materials,
rights of assignee of contractor, 765
Reserved to insure completion, recovery
of when contract has been terminated,
730
Received from owner, paid to material-
man on contractor's general account,
758
MONOPOLY :
Contract must not create, 81
Articles, in bids for public work, the
mfinufacture of which is a monopoly,
163. 164
Exclusive rights in public franchises not
allowed, 81
Of certain materials, specific perform-
ance of a contract to furnish, 707
MONTHLY ESTIMATES (see also En-
gineer's Certificate and Esti-
mate) :
May be revised, 413, 463, 465, 482
May be corrected in final certificate, 489
When sub-contractors have been paid,
482
Made by assistants, 482
MONTHLY PAYMENTS (see also Pay-
ments) :
Provisions for, 769-789
Preliminaries to. 750-789
Must be paid when due, 730
Withholding of, an excuse for delay, 326
MORAL OBLIGATION :
A consideration of a contract, 64
Of engineer forbids any secret interest
in works, 511, 518a
MORE OR LESS :
In a contract to furnish materials, 184
MORTAR :
To be mixed as specified in specifica-
tions, 384
MUNICIPAL CORPORATION, see
City ; Owner
MUTUAL ASSENT (see also Mistake):
Necessary to a contract, 611
Must be evidenced by overt acts, 89
Must consist of physical as well as men-
tal act, 89
May be evidenced in other ways than by
signing, 796
Must exist when contract is made, 88-97
Manner of arriving at, 92
Misunderstanding must be proven, 91
Postponed until draft of written con-
tract, 91, 97, 183, 797
In executed contracts, 90
MUTUAL PROMISES :
Consideration in rescission, 560-563
Consideration one for the other, when
changes are made in written contract,^
131
MUTUAL UNDERSTANDING:
Essential to a binding contract, 88-97
MUTUAL UNDERTAKINGS:
Consideration in a construction con-
tract, 203
NAME OF PERSON :
Might be changed at common law, 795
Assumed name. 795
Middle letter of, 795
NATURAL RESULT :
If it be a nuisance and injury result,
owner is liable, 641, 652
NECESSARIES (see also Infants) :
Contracts for. 23-26
NECESSITY :
For an independent tribunal in con-
struction work, 366
The reason for sustaining many engi-
gineering stipulations, 744
NEEDLE, see Magnetic Needle :
NEGLIGENCE (see Jilso Agents ; En-
gineer ; Owner ; Public Officer) :
Of parties to contract :
defined and explained, 644
Of contractor to replace defective
work, 278
Of owner to provide materials, labor,
lines, levels, etc, 689
Of both parties, liability for damages
resulting, 244
882
INDEX.
^References are to sections.
NEGLIGENCE— Continued.
Of parties to contract — Von tinned.
Will not always justify a rescisssion,
687
Party asserting must prove it, 830
In signing contract, 794
Of engineer or architect :
On the part of agent, 834
Liability for injuries resuUing to third
persons, 842
Is chargeable to owner, 446, 463-469
As a professional man, 835
May prevent his recovery for services,
838
A cause for discharging employee, 805
Not to give notice of any fact affect-
ing the performance of engineer's
duty, 849a
Of a carrier's servants, waiver of dam-
ages resulting, 866
For public otficers to perform duftes
of expert in selection of plans for
public improvement, 246-248
NEW AGREEMENT :
Powers of engineer under it, 397, 398
NEW PROMISE :
Interrupts running of statute of limita-
tion, 118
NEW YORK CONTRACT :
For public works discussed. 447-462
Clauses not in favor, 457-462
Stipulations in use in other cities, 457-
462
When adopted ekewhere they have been
modified, 457-462
NONPERFORMANCE OF CON-
TRACT :
Breach of owner or company, 681-696
Breach or rescission by contractor, 697-
704
Impossibility of performance, 669, 670
Power of owner to terminate contract
for cause, 710-717
NOTES (see also Signature) :
Given to induce bidder not to bid on
public work are invalid, 148
NOTE BOOKS :
Are not a certificate, 478
NORTH (see also Magnetic Needle) :
Meaning of terjn, 433, 629
NOTICE (see also Advertisement) :
What constitutes a notice, 739
Form of notice, 145
.'Sometimes is notice to his employer, 380,
849a
^y letter, not sufficient, 739
To be sent to contractor's place of busi-
ness. 790
"May be made through post-office, 712
Xetter properly mailed is presumed to
have been recdved, 95, 739
NOTICE— Continued.
What is a proper publication of a notice,
135, 139
To be posted in conspicuous place, 135
Should be given full number of days
before time of completion, 724
Should be given that work ordered is
extra, 578-581
When required, must be given, 135, 139
Between contractor and subcontractor,
of engineer's dissatisfaction, 739
To be served by contractor, 632
Should be given by contractor of neglect
on part of owner, 735
Of things, to be given to employer by
jigeot or engineer, 849a
Failure to take notice a waiver of right,
325
Failure to notice default, a waiver of
right to take advantage of it. 325
Of award cf contract to bidder, 183
To bidders, as regards the notice, 135
Of hearing by eugineer, 493-498
Of hearing of arbitrators, 527
Not required when award is drawn up,
498
Of award, when required, 498
'lo neighbor of operations dangerous to
his property, 643
To neiiihbor of building operations re-
moving lateral support of his laud, 643
Of au injunction, 859a
Of intention to terminate contract and
employ others must be given as re-
quired by conlraot, 739
Of termination of contract, 710-717
Of termination, object of it, 739
From owner of his election to complete
work does not prevent contractor from
continuing, 721
NUISANCE :
If the natural result be, then owner is
liable, 641, 652
OATH AS TO TRUTH :
Of statements in a proposal, 145, 150
Form of in proposal, 185. art. 21
Of arbitrator or engineer, 472. 476, 518a,
526
As to accuracy ^nd truthfulness of en-
gineer's estimate, 518a
OBJECTIONS:
Raised to finality of engineer's decisions,
352-363
OBLIGATION OF CONTRACT:
Should be mutual, 455
Of owner cannot depend upon his will
or fancy, 340
OBSCURE CONTRACTS :
Explained by parol evidence, 123-134
OBSTACLES :
Unforeseen and unknown, 584
INDEX.
863
References are to aectiona.
OBSTRUCTION :
Of public ways, 645
OCCUPATION AND USB :
And turuing structure to the purpose
iuteiided, 699
Not an acceptance of itself, 697. 701
Though not an acceptance may be ad-
verse to the owner, 701
Of structure destroyed before comple-
tion, 675
A waiver of certificate, 417
Does not waive written order for extras,
545
Of structure not a ratification of orders
for extras, 557
OFFER AND ACCEPTANCE (see also
Acceptance of Offer, 94-97 ; Rev-
ocation OF Offer, 97) :
Together make a binding contract, 93,
97
What is an offer ? 93
An offer is a conditional promise, 93
Conditional offer, condition must be per-
formed, 94
'• Will you or would you take " not
an offer, 98
An offer may be revoked, 97
Offer of reward for service to be ren-
d> red, 94
Revocation of offer when consideration
is partly performed, 94
Destioyed by death of offeree, 94
What constitutes an acceptance ? 94
Acceptance must be in terms of offer,
93-97
Acceptance need not be communicated
to offerer, 94
Acceptance of offer by letter or message,
95
Acceptance, how expressed, 94
OFFICE HOURS :
Work done outside of by employee, 820
OFFICERS (see also Agents ; Public
Officers) :
Acts must not be against interests of
their company, 84
Of company are not its servants, 863
May not submit government matters to
arbitration, 523
OFFICES :
Contractor to provide for engineer's, 284
OFFICIAL NEWSPAPER :
Designation of, for advertisements, 135
OFFSET :
Of owmer against engineer's claims for
unskillfulness, 838
OLD MATERIALS :
Ownership of, expressly provided for,
263-366
OMISSIONS :
In plans and specifications, 225-233
Supplied by parol evidence, 123
O^aiSSlONS— Continued.
No advantage to be taken of, 792
In work must not have been willful, 442
OPENING OF BIDS :
Bidders should be invited, 183
Not necessary to awaid contract at it,
183
OPINIONS (see also Expert Witness):
Not generally admissible as evidence,
884
Of witness as to legal effect of contract
are incomi etent, 658
Of an expert, giving of, 868
Of expert may be adopted by arbitrators,
501, 529, 531
Witness entitled to pay for, when ? 896 '
OPPRESSION :
Relieved against by American courts,
748
OPTION (see also Revocation op Of-
fer) :
On materials for time specified, 97
ORAL AGREEMENTS (see also Parol
Agreements) :
Independent oral agreements, 130
ORDERS (see also Agent, Engineer,
Public Officers) :
By committeemen and engineer, 39, 352-
558
Ratification of unauthorized, 84, 377,
557, 558
ORDINANCE (see also Laws):
Authorizing work must be respected,
556
Extra work done to conform to, 547
Prohibiting abutting owners from taking
materials of street, 266
Requiring sidewalk to be covered along-
side of building, 641
Making decision of building inspector
final. 344
Requiring that all claims on account of
work shall be settled before final pay-
ment, 755
ORDINARY:
What is ordinary care, 643
ORNAMENTATION:
Is of substance, in a substantial perform-
ance, 701
OUSTING COURTS OF JURISDIC-
TION :
Feeling of courts discussed, 406-408
In contract, that engineer's decision
shall be final, without appeal, 339,
344, 345, 406-408
OUTSIDE WORK (see also Extras) :
By employee, rights of employer, 820
OVERTIME :
When hours in a day are fixed by statute,
810
884
INDEX.
Iteferences are to sections.
OWNER'S APPROVAL. See Owner's
Satisfaction.
OWNER (see also Breach of Con-
tkact) :
His breach of contract. 681-689
Renders perforuiaiice impossible, 670
Forbids or stops the full performance
of work, 683-688
By failure to furnish his part of con-
trucl, 689
His duty;
To give instructions through architect
or engineer, 664
To see that plans, specifications, etc.,
are appropriate and sufficient, 663
His failure or neglect :
To get permit, 326
To furnish plans, etc., 326
To do his part to prevent delay, 324-326
To finish his work in time, 326
To carry out contract, 682, 689
To perform liis undertakings a ground
for rescission, 670, 689
Neglect of. should be noticed by con-
tractor, 735
That works were destroyed, 674
OWNER'S LIABILITY (see also Lia-
bility) :
To contractor :
To pay on performance of conditions
and rendering engineer's certificate,
776
To pay depends upon promise and not
upon performance of work, 342
Created by promise only, 342
To provide materials, 261
For extras without written order, 564-
569
For extras from mistakes of engineer,
421, 587, 596
For negligence, obstruction, and mis-
takes of his engineer, 435
For acts of engiyeer's assistants, 843
For unauthorized changes in plans,
etc.. 235
For difficulties unforeseen, 584
For erroneous estimate > of work, 588,
589
For the preservation of the structure,
676
To contractor, for underestimate of
arch tect, 421, 435, 549, 841
Delay from changes in plan by. 552
For delay caused contiactor, 326
For rendering inspection impossible,
440
For orders to engineer not to make cer-
titioate, 438-440
Not liable to subcontractor, 17
To third persons ;
If ordinary and material result of work
is injurious, or a nuisance, 640a, 641,
652
OWNER'S IjIABIIjITY— Continued.
To third persons — Continued.
For dangerous condition of his prop-
erty, 642
For safety of works after acceptance,
643
Cannot escape it by delegating certain
acts to contractor, 644
Is not relieved by contractor under-
taking to indemnify him, 638
When work is lawful and given to an
independent contractor, 652
When he has selected competent en-
gineers and architects, 244-248
For injuries to third paities, resulting
from defective plans, 243
Does not guarant}' that contractor is
skillful, 644
His liability for injuries to contractor's
emplo3'ees, 244
For injuries resulting from certain acts,
638
He or contractor liable for injury, 636-
646
Contractor may be jointly liable for
injuries, 640a, 641
For acts of contractor under various
clauses, 665-667
For damages that result from con-
tractor's mistakes, omissions or neg-
ligence, 644
For the unskillful, careless or lawless
acts of contractor, 639
Fdr injuries caused bymeans employed
by independent contractor 640a
When he furnishes tools, 662
Determined by actual interference or
control exercised, 664
For unauthorized acts of engineer, 440
Kesponsible for mistakes of its engi-
neer, 421, 435
To others for engineer's misconduct,
549, 841
His obligations :
To employ competent parties to do
work, 643
To exercise due care and foresight, 644
To adopt good plans and to employ
competent contractor, 242, 243, 644
To meet progress payments, 687
To have certificate made, 421, 437, 438
To furnish honest and competent en-
gineers, 421, 435, 437, 438
Implied undertaking that engineer will
do his duty and act fairly, 421, 426,
438
Is bound by engineer's estimates ex-
cept in case of f i-aud, 445
To complete works, will not be re-
quired by court, 708
To complete works economically, 738
To act. to terminate contract, 721
To stipulate for proof that claims are
paid if he will require it, 758
INDEX.
885
JCeferencea are to teetiona.
OWNER'S IjIABITuITY— Continued.
His obligations — Continued.
To pay claims agaiust contractor,
should be in writing, liO, 111
His position :
When be bas assured contractor that
penalty will not be enforced, 326
Re liquidated damages, with power to
terminate contract, 733
As contractor, with covenant against
liens, sub-contractor's position, 763
Povrers reserved :
To control bis property, 303
To employ others to complete work,
in case of default of contractor, 710-
717
To terminate, annul, or rescind con-
tract, 710-717, 723
To waive power to annul contract, 721
To direct as to ultimate result of un-
dertaking without making contractor
his servant, 660
To waive his rights by failing to ob-
ject, 581
To employ more men, etc., must be
exercised in good faith, 738
To take work and complete it, held to
be a substitute for damages, 731
Cannot have direction and control of
an independent contractor, 654-668
May not terminate contract and refuse
to relet it to others, 720
His recovery :
He is entitled to all profits of his busi-
ness, 515
Can ciiarge for completion only the
reasonable cost, 738
For damages suffered from aVchitect's
inattention against sums due for ser-
vices, 838
From contractor for damages suffered,
638
His rights :
Cannot complain if he has knowingly
employed an unskillful engineer, 838
To retain moneys due equal to claims
unpaid reserved, 750-754
To complete works at contractor's ex-
pense in case of his default, 713-717
In soil, etc.. of streets of which he is
an abutting owner, 266
OWNER'S SATISFACTION (see also
Satisfaction of Owner) :
Work to be completed to, 359, 337
Binding effect of clause requiring work
to be done to, 340
Held by courts to mean to his reasonable
satisfaction, 340
OWNERSHIP (see also Materials) :
Of materials and tools is in contractor
until they become attached to works,
371-373
Of materials and plant delivered on
works, 267-373
OWNERSHIP— Cbn^mwcd
Of old materials, 362-266 '
Of materials, when it should be defined,
273
Of materials for a ship, 372, 373
Of materials in public way, 366
Of blinds fitted to house and taken to
paint shop, were held to belong to con-
tractor, 271
Effect oi usage, 624
OWNERSHIP OF PLANS, ETC., see
Incorporeal Property, 816-825
PAINTING :
Contract to do, and structure destroyed,
676
PANEL :
Undertaking to carve, and building
burned, 676
PAROL AGREEMENTS :
To be subsequently embodied in a writ-
ten contract, 91, 97, 183, 797
To rescind or change written agreement,
122-131, 560-563
To pay the debts of another, 110, 111
To rescind specialty should have a con-
sideration, 69, 131, 561-563
May be consideration for written agree-
ment and vice versa, 130
PAROL CHANGES :
Of contract terms, 69, 121-131, 560-563
Of written contract, evidence of, 130
May reduce written to a parol agreement,
574
Powers of engineer under, 398, 399
PAROL EVIDENCE (see also Evi-
dence) :
Of written contract not admissible, 123
To identify, describe, or explain a con-
tract, 133, 317
To explain obscure and ambiguous con-
tracts, 134
When it will be received to explain
written contract, 133-136
To connect parts of contract, 316
Of fraud or duress in written contracts,
139
Not admissible to change written con-
tract, 131-131, 560-563
Of terms of written contract is not ex-
cluded in suits between strangers
thereto, 128
PART OF WORK :
Only, undertaken, and all destroyed, re-
covery therefor, 676
PARTIAL FAILURE :
What is and what is not, 723
PARTIALITY :
Of arbitrators, evidence of, 533
May be shown by dissenting arbitrator,
491
Of engineer, may amount to fraud. 438
886
INDEX,
References are to sections.
PARTIAL OR PROGRESS PAY-
MENTS :
Provisions for, 769-789
Conditions imposed, 750-789
At certain stages, each stage must be
' entirely completed, 677
For work which is destroyed, 674-677
When contract is terminated by owner,
728
Failure to make, a breach of contract
when, 686, 687
PARTIES (see also Contracts) :
To a Contract :
Designation and description, 4
There must be two parties, 5
As regards the parties, 5
Only the parties are bound, 6
Legal representatives of, 7-16
Persons members of both parties, when
companies or firms, 5
Agent should not be made a party, 30
Agent's power to contract, how con-
ferred, 56
Alien enemy in time of war, 27
Artificial parties, corporatebodies,43-47
Bankrupts, 27
Beneficiaries under contract, 17
Boards, 39
Committees and councils, 39
Contractor determined by his own
act, 50
Director can not be a party to com-
pany's contract, 42
Engineer a shareholder of one party, 5
Guarantor, parol promise by him, 17
Husband and wife, 26
Idiots, inebriates and infants, 24-25
Idiots, or weak-minded persons, 25
Third parties, laborers and material
men under contractor's bond to pay
for labor and materials, 17
Married women, 26
Seamen, 27
Strangers to contract, 17
Subscribers to a project, 49
Third parties to contract, 17
Third party, citizens when city is
party, 17
Third party, property owner on street,
17
Third party, purchaser at Sheriff's
sale, 17
Third parties, subcontractors, 17
Third parties— sureties, 18 (see also
Surety)
Third part, suretv not liable to, 19
Third parties, wife of contractee, 17
Disabilities of persons, 23-28
Restriction excluding persons from
bidding for public work. 147
Qualifications required of bidder, 146
Duress of either party, 28
Must ascertnin authority of public
agents at their peril, 855
PARTIES— Continued.
To a contract— Continued.
Are bound by meaning of contract
adopted, 580
Seek to avoid court trials, 363
Only one signs, 796
Those who sign but are not named m
contract are sureties, 796
Domicile of parties, given in contract,
57
Precaution with regard to on part of
con:racior, 55
Should agree upon form of certificate^
476
Misunderstanding of terms of contract,.
90
Consideration must pass between, 68
To an arbitration :
Who may be, 522
Who cannot contract, cannot submit
to arbitration, 522
PARTNER :
Cannot bind copartner by a submission to-
arbitration, 522
PARTNERSHIP :
Firm having common partner, 5
Agreements for, by bidders for public
work, 148
Of engineer's, making the certificate^
505
PART PAYMENT (see also Payment) r
Is an acquiescence in what has been done,.
701
Sometimes a ratification, 558
PASSER-BY :
Liability for injuries to, 644
PASSES (see also Fkee Pass) :
Stipulations endorsed releasing company
from liability, 86, 864
PATENTS (see also Invention) :
Secured by employer when employee i»
inventor, 823-825
Who is entitled as between employer
and employee, 828-825
PATENTED ARTICLES:
Competitive bidding for in public work,
163, 164
A pump for public works. 164
Pavements for public works, 164
Lathing for public work, 164
PATTERNS :
Furnished for experimental article, 256
Custom for contractor to furnish, 616,
.627, 629
PAY (see also Money ; Wages) :
Wages at certain intervals required by
law, 136, 144
PAYMENTS (see also Final. Monthly^
Partial and Progress Payments) :
Sections of book on the subject, 789 note..
As regards payment, 789
INDEX.
887
'References are to sections.
PAYMENTS— Continiied.
Preliminaries to payment, 750-789
To be subject to a condition precedent,
771-777
Made contingent on engineer's certifi-
cate, 409
Made to depend upon certificate of en-
gineer, 407
Not due until certificate is rendered, 777
Witliout engineer's certificates a waiver
of stipulation requiring them, 417
Made without objection a waiver of
strict performance, 701
Made after default a waiver of certain
rights, 326 /
Sometimesamountstoan acceptance, 701
To contractor with knowledge that sub-
contractors are not paid, 765
Manner of making, 771-779
According to measurement and works
destroyed, 677
A certain percentage of work completed,
and all destroyed, 677
In stocks or money for extras, 601
In full if works are in good repair at end
of time stated, 330
For extras, at contract prices, 572-577
Of other claims for extras a ratification
of order, 558
Of prior orders a ratification of unau-
thorized acts, 558
Representatives named, 785
Failure to make, a breach of contract,
686, 687
PENALTIES (see also Liquidated
Damages) :
Cannot be concealed behind words
" liquidated damages," 316
Compared with liquidated damages,
315-317
For delay excused by act of owner, 670
Fixed when contract is terminated by
owner, 729
Forfeiture of certified check of bidder,
168
PERCENTAGE :
Of omissions that will permit a recovery
for substantial performance, 702
PERCENTAGE RETAINED :
As liquidated damages, may be recovered
when, 323
If not designated as liquidated damages,
it may be recovered, 730
Recovery of, when contract has been
terminated, 730
PERCH :
. In measuring stone, 621, 629
PERFORMANCE (see also Substan-
tial Performance) :
Does not usually create indebtedness,
410-412
Law or custom of place of, controls, 628
PERFORMANCE— Continued.
Of service by engineer, 813
Forbidden or prevented by owner, 682-
688
Prevented by agent of owner, 682
Of contract, impossible, 669, 670
Prevented without fault of either party,
674
Prevented by law, city or state, 438
Day set for completion falls on Sunday,
310
Recovery of contractor when incomplete
or defective, 697-704
PERILOUS :
To owner, to reserve too much control of
work, 668
For contractor to contract with unauthor-
ized parties, 43-55
PERIOD (see also Statute of Limita-
tions) :
Of advertising for bids, 135
Of limitations, 112-121
PERMITS, LICENSES, ETC. :
Owner fails to secure, 326
To be obtained by contractor, 633
Owner failed to get necessary permits,
689
Determination of building inspector final,
344
PERSONAL REPRESENTATIVES
(see also Representative) :
Clause describing them, 207
PERSONAL SERVICE :
Specific performance of contracts for.
709
Fireworks, contract to make, 164
Light-house, contract to build, 13, 164
PERSONAL SKILL (see Contractor;
Engineer or Architect) :
Death of contractor, 438
PHOTOGRAPHS :
Some of the uses of, 880
As evidence, 880
Advantages of in a trial, 879, 880
To enlarge minute objects, 880
Deceptions contained in, 880
The subject of copyright, 818
Publication of without permission of the
person, 818
PHYSICIAN :
His contract of employment, 811-814
As an expert witness, 895-901
PICTURE :
Rights of purchaser in, 817
PIER MASONRY :
Classified as ' ' bridge masonry, " 387
PILES :
Cut off, and recovery for full length, 581
PIONEER JUDGES :
lu establishing law of construction, 366
888
INDEX.
References are to sections.
PIRACY :
Of books and charts, 822
PLACE :
Custom of what place controls, 628
PLAIN AND WORKMANLIKE MAN-
NER :
Agreement to perform in a, must be
faithfully performed, 256-258
Work not so performed, contract res-
cinded, 257
PLANS AND SPECIFICATIONS (see
also Drawings ; Insufficient Plans ;
Specifications ; Sufficiency of
Plans) :
A part of contract when :
Should be made a part of contract,
213-218
Made a part of contract, 213a, 791, 792
Whether part of contract is question
for court, 222
A part of a bid, 188, 214-233
Referred to in contract, 221-224
Should make clear reference to con-
tract, 215
Referred to as signed or attached, not
signed or attached, 219
Exhibited to contractor when contract
was made, 217, 218
Identified by parol evidence, 123, 217,
218
To be registered with contract, 220
Conflict V7ith other parts :
Conflict of with contract, 227-233
Subordinate to contract, 219, 227, 228
If followed in construction will pre-
vail over contract, 580
Conflict, one with the other, 228
Control engineer's decisions, 219
To be followed instead of engineer's
instructions, 388-390
Meaning of, to be determined by en-
gineer, 401-407
Contractor must understand them, 242
Ownership and control of:
Ownership and control of, 815-825
Ownership of plans, etc., 252, 815,
816-822
Provision for custody of same, 249-251
Possession of while works are in prog-
ress, 249-251
Possession of disputed, 815
Lost by common carrier, 815
To be prepared by contractor, 219
Failure of owner to furnish, 326
Character of work shown when there
are none, 216-219
Designs embodied are protected by
law. 816
Copying or using without permission
of author, 816-822
"Copyright of by author, 816-818
Prepared and submitted in competi-
tion, recovery for, 812-814
PLANS AND SPECIFICATIONS—
Continued.
Ownership and control of — Continued.
No lien for labor in preparing, 861, 862
Sufficiency of:
Insuihcient, liability of parties to con-
tract, 237-248
Defective, and proof of, 239
Cities, towns, and states are required
to exercise care and skill in selection
of, 245-248
Adoption of, without professional ad-
vice held negligence of public offi-
cers, 246-248
Selection of, for public improvement,
245-248
Adoption of, by council in ordinance,
220
Departure from by contractor, 242
Unauthorized changes in, 234, 235
Provisions that work shall conform to,
213. 213a, 223
True spirit, meaning, and intent of, 258
Must be complied with, or no substan-
tial performance, 701
May prescribe manner of doing work
without making contractor a ser-
vant, 663
PLASTERING :
Recovery for, when house is burned, 676
Improperly done, but acquiescence not
shown, 469
Custom and usage in measurements, 622,
629
PLEDGE :
By engineer that cost of works shall not
exceed a certain amount, 443, 510
PLUMBING :
Contract to do, and building destroyed,
676
POOR WORK:
Not excused by inadequate price, 256
Concealed by fraud, its effect on statute
of limitation, 119-121
PORTRAIT :
Undertaking to paint, 675, 676
POSITION :
Of a public officer, 850
POSSESSION (see also Acceptance ;
Occupation) :
Of works :
Owner retains control, 302
By contractor is not a tenancy, 767
Delay to give, not to vitiate contract,
301
Taking possession by owner, effect on
liquidated damages, 326
Taking possession not a waiver of en-
gineer's certificate, 417
Not a ratification of engineer's unau-
thorized acts in regard to them, 558
INDEX.
889
References
PO SSE S SIGN— Continued.
Of plans :
Provision for, 249-251
Duriug construction of works, 815
After completion of works, 815
POST CONTRACTOR :
Liability for work of prior contractor,
242
POWERS :
Conferred in charter, not to be delegated,
64G
Of city to require bond for benefit of
laborers, 765
To terminate contract must be exercised
in time and manner expressed, 723
To terminate contract restricted, 718
To enter upon lands and make a survey,
delegated, 507
To revise certificate, reserved in con-
tract, 448-462
To revise certificate should be exercised,
.461
Of corporation :
To require contractor to pay all claims
before he is entitled to payment for
work, 756
Of engineer (see also Engineek's Pow-
Eits) :
Power of attorney to make change in
contract, 553
Limited to those expressly conferred
by contract, 370-390
Are not to be implied, 370-380, 553-
559, 736
To delegate to assistants, 499, 507
As a public officer cannot be enlarged
by usage, 615
PRACTICAL REASONS :
For upholding many contract clauses,
744
For allowing owner a general control of
work, 666
PRACTICAL TESTS :
By expert witness in court, 892, 893
PRECAUTIONS :
To be taken by contractor in undertaking
public work. 55, 1 38
Recommended before acceptance of
works, 643
Required of owner, 646
PREFACE, see pages iii-ix.
PREJUDICE :
Of engineer, may amount to fraud, 428
PRELIMINARY ESTIMATES (see
also Engineer's Estimate ; Esti-
mate) :
Should be made. to enable bidders to bid,
53
Are approximate only, 588, 589
Incorrect, contractor's loss, 589
Contractor should verify, 589
are to sections.
PRELIMINARY NEGOTIATIONS :
To be embodied in a contract, binding
effect of, 797
To be reduced to writing, will not be en-
forced, 797
PREMISES :
Certificate required that they are free
from liens, 759-762
PREPARATION :
Of expert, none can be required without
extra pay, 900
By expert witness, for the witness stand,
879
PRESIDENT (see also Parties) :
Party to a contract, 30, 32, 38
Can have no interest in company's con-
tract, 42
PRESUMPTION :
That engineer or architect has done his
duty, 840
PRICE :
Distinguished from value, 391
To be in full compensation, 782-784
Of contract, apply to extra work, 572-
577
Of extras, engineer to determine, 591-596
Grossly inadequate, no excuse for poor
work, 256
Extraordinary in bids, 54, 149, 156
PRIOR CONVERSATIONS :
Merged in written contract, 122-126. 222
PRIOR PROMISE :
By engineer, to make certain classifica-
tions, 390, 482
As to what materials would be accepted
cannot be shown, 390
PRIOR UNDERSTANDINGS :
May not be shown to vary terms of writ-
ten contract, 121-131, 5.60-563
PRINTED MATTER :
Of contract, is controlled by written mat-
ter, 231-232
PRIVATE WORK :
Lowest bid for work under, 186-189
Bidder's rights are such as he has stipu-
lated for by express agreement, 187
PRIVILEGED COMMUNICATIONS :
Between owner and architect, 849a
PRIVILEGES OF EXPERT WIT-
NESS :
Determined by trial court, 883
PRIZE PLANS :
For best plans submitted, custom re, 616,
814
Recovery for work in preparing, 812-
814
Lost by express company, 815
PROCESSES :
Patented, in bids for public work, 163,
164
890
INDEX.
References
PROFESSIONAL ENGAGEMENT :
Of engiueer or architect, 811-814
Requires of a person, what ? 826-837
PROFESSIONAL MAN :
Must exercise care aud skill, 832
Must be competent and skillful, and have
due care, 826
Is responsible for want of ordinary skill,
care, and atteniion, 829
PROFESSIONAL SERVICES:
When charter requires that all work be
advertised, 164
PROFITS (see also Recovery) :
Of extras in a job, 535
In other jobs, not to be considered in
awarding damages, 696
Must be shown, not a matter of conjec-
ture, 695, 696
Made by engineer in employer's business
belongs to latter, 515
PROFIT-PAYING PART ;
Of work omitted by owner, 582
PROGRESS CERTIFICATES (see also
Certificates ; Engineer's Certipi-
CATES) :
Distinguished from final certificate, 549
Subject to correction in final certificate,
482. 780, 781
May be revised and corrected, when,
413, 463, 465, 482
Are not written orders for extras, 548
Giving of, is a waiver of defects in work,
when ? 446. 463-469, 701
PROGRESS PAYMENTS :
Conditions imposed, 750-789
Aud works destroyed, 677
Not to lessen liability of contractor for
defects, 461, 464-469, 701
PROGRESS OF WORE :
If unsatisfactory, owner may employ
others to doit, 713-716
PROLONGED ABSENCE :
Of engineer excuses certificate, 438
PROMISES (see also Agreements ;
Contracts ; Consideration) :
Must be for some consideration, 61
In consideration of an act or thing dis-
tinguished from promise for a promise,
67
To pay extra compensation for work in-
cluded in contract is without a consid-
eration, 66
Must be contemporaneous with consider-
ation, 67
Made prior to written contract, 121-131,
560-563
By owner to pay for extras, binding, 564-
569
By engineer, to make certain classifica-
tion not kept, 390
are to sections.
PROMISE TO PAY :
Should be subject to the condition pre^
cedent, 410-412, 771-779
Must be made contingent on engineer's
certificate, 415
Only on presentation of engineer's certi-
ficate. 771-779
Omitied from contract, 778
PROOF :
Of alterations and changes, 577
PROOF OF CONTRACT, see Statute
OP Frauds, 98-111; Statute of Limi-
tations, 112-121.
PROPERTY :
Title to, is a question of intention, 266,
271-273
Of neighbor injured by negligence of
contractor, 641
Should be maintained in a reasonably
safe^conditiou, 642
Subject to liens by persons who have not
authority to act for owner, 768
PROPERTY RIGHTS (see also OWner-
ship) :
In materials, determined by intention^
266
In materials and plant delivered upon
works, 267-273
In materials excavated from a public
way, 266
In plans and specifications, 252, 815, 816-
822
In designs and inventions, 815-825
PROPOSALS (see also Bids and Bid-
ders) :
Acceptance of, 170, 171, 182-184
Made a part of contract, 791, 792
Form of, for public work, 185
PROTECTION OF WORKS :
And properly undertaken by contractor^
466, 630, 631
PROTESTS (see also Notices) :
Contractor should not hesitate to make^
578-581
PROVISIONS (see also Contract Stipu-
lations) :
General are controlled by special, 400
As to payments for work, 769-789
PROSPECTIVE PROFITS (see alsa
Damages) :
Recovery of for breach of contract, 694-v
696
When is contractor entitled to them, 687
What are, and what are not, 694-696
When neither party is in default, 440,
690-696
Value of impossible to determine, 694-
696
Are supposed to have been in the con-
templation of the parties when they^
made contract, 695, 696
INDEX.
Jteferenees are to sections.
891
PUBLICATION OF DESIGN :
What is and is not, 816
Destroys author's rights to exclusive use
of it, 816
PUBLIC FUND :
Payments to be made from, 789
Diversion from purpose for which they
were raised, 46
PUBLIC IMPROVEMENT :
Parts of, must be advertised, 161
What is, and within act requiring adver-
tisement for bids, 138
Contract to keep in repair sometimes
' objectionable, 334
PUBLIC OFFICER (see also Agents ;
Engineer or Architect) :
Power and liability of :
Liability for assurances in English
courts, 855
Liable for false representations, 856
Liability on contracts improperly
executed, 31, 35
Not liable under void contracts, 35
Liability upon contracts executed in
official capacity, 855
Should disclose the fact that he is an
officer or agent. 855
To incur no personal liability, 789
Signatures to notes, bonds, etc., 855
County and municipal compared, 851,
852
Fewer requirements than of a profes-
sional man, 857, 858
Positi(m of explained, 850
Not liable for blunders, 36, 45
Liability of engineer as one, 850-859
Liability for acts of assistants, 853
Willfully exceeding powers are liable,
180
Who disobey an injunction must stand
expense of contempt proceedings,
859a
Non- judicial held liable for negligence,
854
Ministerial acts of, 180
Employees of state held liable for
negligence, 854
Acts must not be fraudulent, 176
Evidence of fraud or collusion in, 149
Care required in selecting ' plan for
public improvements, 246-248
Are required to secure the services of
engineers and architects on ques-
tions of design and construction,
246-248
Negligence of in attempting to per-
form duties requiring the services of
• experts, 246-248
Power of to determine lowest responsi-
ble bidder, 172
Power of to determine good and
sufficient surety, 172
Awarding contract for public work to
PUBLIC OFFICER— ConUnued.
Power of and liability of — Continued.
another than the lowest bidder, 176-
180
Acts must not be against interest of
public, 84
Can have no interest in contract for
public work, 42, 148
Agreements by, contrary to public
policy, 73
Contracts to influence public officers
not binding, 73
Contracts ultra mres by public agents,
35
Unauthorized acts do not bind princi-
pal, 35
Contractor must ascertain powers of,
at his peril, 35
May be enjoined from illegal acts,' 177,
178
Acts cannot be controlled when they
are discretionary, 176-179, 844-859
May prescribe any reasonable formal-
ity for bidders, 146
Act of awarding contracts is fre-
quently discretionary, 171, 172, 173
Bound by discretion exercised, 138
In awarding contracts, must exercise
good faith, 171. 172, 173
Cannot permit alterations in proposals,
181
Cannot excuse default, and relieve
against forfeiture of certified check,
168
Act of giving contract to one not en-
titled to it a crime, 179
Presumed to do their duty, 40
PUBLIC POLICY (see also Contracts) :
Contracts which are against public
policy, 71-87
Defense of to contract obligations, 87
PUBLIC RIGHTS :
Not lost by lapse of lime, 116
PUBLIC WAY (see also Highway;
Street) :
Rights of public in it, 266
Must not be obstructed, 76
Must be kept safe, 645
Ownership of materials in, 266
PUBLIC WORKS (see also Bids and
Bidders ; Lowest Bidders ; Con-
tracts) :
Restrictions and regulations in contracts
for, 137
Must be let to lowest bidder, as required
by law, cannot leave part of work the
subject of a post-private agreement,
157
Comprised in statute requiring it to be
let to lowest bidder, 161
Information in regard to should be fur-
nished bidders, 154, 157
Certain things to be furnished by city ot
state, 162
892
INDEX.
S,eference8 are to sections.
PUBLIC WOKKS— Continued.
Bids for cannot be withdrawn, 181
Noi always required to be advertised
and let lo lowest bidder, 171
Precaution to be taken by contractor in
bidding for public work, 55
A-greemeuis between contractors not to
bid against each other for it, 82
Selection of plans for, a judicial act,
245-248
Competent professional advice in re-
gard to must be secured, 246-248
Encouraged by proper interpretation of
construction contracts, 366
Act of legislature authorizing the inser-
tion of a clause in a contract for a
speedy adjustment of all questions,
345
Validity of clause requiring contractor
to pay claims, 756
Liens for labor, etc., upon, 766
PUBLISHING;
Notices pursuant to law, 135
PUNCTUATION :
In interpreting contracts, 233
PURCHASE :
Of materials, specifications, 277a
PURCHASER OF PLANS ;
Right to use and copy, 817
PURGING:
Oneself of a contempt, 859a
QUALIFICATIONS :
Of an expert witness, 883, 891
Of bidder for public work, 147
QUANTITIES (see also Engine er) :
Power of engineer to determine, 370,
H81-390
Engineer's decision in regard to, 391
Character and value of extra work left
to engineer's determination, 392-396,
592, 596
QUANTUM MERUIT :
Or action on contract, 575
When there is a breach of contract, 690-
696
When ehanges have been made, 573-577
What chnnsres will permit a recovery on
a, 572-577
When contractor is in default, 703
To recover upon, contractor must have
been prevented from completing, 721
QUASI-ARBITRATOR (see also Arbi-
TRATOK ; Engineer or Architect) :
Siibinission of questions to engineer, so-
called 445
QUASI PUBLIC WORKS :
Exempt from mechanics' liens, 766
QUESTIONS (see also Expert Wit-
ness) :
Which do not require expert testimony,
885, 891
QUE STIONS— Continued.
To be determined by court or jury can.
not be asked witness, 885, 886, 890
RAILS :
Sold, inspected, delivered, and partly
laid found defective, 467
RAILROAD COMPANIES:
Quasi-Y)ub\\c corporations liable for
safety of public avenues, 645
RAILROAD TIES OR SLEEPERS :
Custom and usage j'e, 627, 629
RATIFICATION (see also Contracts) :
Of agent's, architect's, and engineer's
• acts, 34, 377, 557, 558
Of invalid contracts by congress or
legislature, 46
Of individual members of a council, 557
By council, of engineer's employment,
557
Of acts of engineer, by employer, 34,
377, 557, 558'
By payment of similar prior orders, 598
Not implied from silence, 5i8
Of contract stipulations by bringiiig suit
on them, or pleading them as a de-
fence, 522
RE ADVERTISE, 174, 175, see Adver-,
TISEMENT.
READING :
Contract executed without reading, 794
REASONABLE :
Requirements of bidders, 153
REASONABLE CARE :
Must be exercised in selection of skilled
engineers on public works. 246-248
REASONABLE SATISFACTION :
Of owner when contractor must build
to his approval, 340
Of engineer or commissioner, 459
REASONABLE TIME (see also Time
OF Completion) :
What is a reasonable time, 310
Is usually a question for jury, 723
In deciding what is, capacity of mill
may be considered, 310
Work must be completed within, when
time is not specified, 310
To complete cannot be changed by
usage, 618
REASONS :
For en forcing arbitrary and penal clauses
in construction contracts, 744
Why an engineer may delegate certain
duties, 501-504, 529
RECEIPT IN FULL :
Precludes further recovery, though esti-
mates are disputed, 417
RECEIPTS AND PROCESSES :
Right to between employer and em-
ployee, 819
INDEX,
893
Mefereneea are to sections.
RECEIPTED BILLS:
Required before settlement, 750-768
RECOVERY :
Of employee :
Of engineer or architect for services in
preparing plans not used, 812
For extra work, 810
By owner :
Of damages for injuries incident to
coustruction, 638
Of moneys, paid for defective work,
469
Of liquidated damages if regarded as
a penalty, 315
RECOVERY BY CONTRACTOR (see
also CONTRACTOB, ; MEASURE OF RE-
COVERY) :
For extra work :
Required to make work conform to
ordinances, 547
Ordered by engineer without express
authority, 553
For extra services outside of contract,
559-567, 810. 835
When contract must be let to lowest
bidder. 157, 158
For work unforeseen, 584
Ordered by engineer without au-
thority, 871-380, 552-554
For alterations, at contract prices,
572-577
For work caused by engineer's mis-
takes, 421, 435
Under illegal or unauthorized contract:
For work done under an illegal con-
tract, 71-87, 138
None for public work under a void con-
tract, 138, 148
When contract has been awarded to
one not lowest bidder, contrary to
law, 143
Cannot recover for work and ma-
terials furnished under a contract
not executed according to law, 52,
138
No recovery for work done not pur-
suant to charter or statute, 43, 138
Cannot recover when contract is for-
bidden by statute or charter, 52, 138
For work done outside limits of com-
pany's territory, 76
For work done on property of a
stranger to a contract, 76
For work done by mistake on an-
other's job, 602
When contract for repairs was not au-
thorized. 834
Ratification implied when there is a
strong equity in his favor, 557
When he has bribed engineer, 514-518
For part performance :
Without a complete performance, 441-
443, 697, 698-702
RECOVERY BY CONTRACTOR—
Continued.
For part performance — Gontinned.
When work is only partly performed,
692
Must show acceptance, substantial
performance, or waiver, 701
For substantial performance is for
benefit conferred, 703
For benefits conferred and to prevent
unjust enrichment, 108, 138
When work is not completed in con-
formity with contract, 697-704
Upon the special contract, 691-696
On quantum meruit when perform-
ance is prevented by owner, 439
No recovery if work is not done in
workmanlike manner, 256, 257
When completion has been prevented
at contract prices. 440
When work is stopped by city, 239
In case of owner's breach. 690-696
When contract has been terminated
in manner provided, 728
When works are destroyed before
completion, 676
When profit- paying part of work has
been omitted, 582, 583
When he has done the easiest part of
work, 583
Rights to recover depend upon no-
tices, protests, etc., 578-581
Of prospective profits, 694-696
Of expenses incident to preparation
for work when contract has been
rescinded, 693
None for labor preparing bids unless
by express agreement, 186-187
Measure of recovery when he is in de-
fault, 442. 708, 704
He must* have made an honest effort
to complete his contract. 698. 699
For his work in case of fraud of en-
gineer, 423-427. 549
REDUCTION:
Of amount of work by changes, 568
REFEREE (see also Arbitrator; En-
gineer AND Architect; Umpire):
Engineer or architect a referee between
parties, 385-469
REFERENCE :
To ordinances and regulations in con-
tract, 221
Between written instruments must be
clear, to connect them, 218-219
To plans and specifications in contract,
215-219
To maps, deeds, etc., 224
To engineer not specific, 506
REFRESHING OF MEMORY :
Of a witness on the stand, 877, 878
By witness depends upon trial court,
883
894
INDEX.
Meferences are to sections.
REFUSAL :
Of engineer to act, avoids his certificate,
422, 489
Of contractor to replace defective work,
278
REGISTRY :
Of plans and specifications with con-
tract, 220
REGULATIONS :
Necessity for, in contracts for public
work, 137
Work to be completed according to those
of building associations, 223
REJECTION (see also Bids) :
Of bids or proposals :
Right of public oflicers to reject any
and all bids, 171, 174
May reject all bids, 171-175, 179
Of work and materials :
After approval, provided for, 276-282
Made to depend on good faith of en-
gineer, 448-451
RELATION (see also Independent Con-
tractor) :
Of master and servant :
What makes, 652-668
Not a question of intention, but of fact,
659
Depends upon control reserved or
exercised. 658
Must exist to charge one person with
the conduct of another, 652-668
Of owner to contractor :
Is determined by court, 654
When he carries on an independent
employment, 662
RELEASE (see also Liens) :
Of all claims :
To be executed before final payment,
763
Final payment to operate as, 787
RELIEF FROM RISKS:
Anxiety and care, a mitigation of dam-
ages to contractor, 695
RENTING OF OFFICES :
Need not be advertised, 164
REPAIRS :
After acceptance must be made by
owner, 446. 463-469
Works to be kept in complete repair for
a period named, 329, 330
Agreement to repair does not insure
existence of structure, 673
To works, which are destroyed, recovery
therefor, 676
Which endanger property of others must
be made with extraordinary care, 643
Liability of state employees in making,
854
Contract to make, when plans were de-
fective, 241
Must be advertised, X61
HBFAIRS— Continued.
Application of laws to covenant to repair,
333
Cost of, should not be added to cost of
improvement unless authorized, 834
Contract to repair, separable from con-
tract to build, 334
To machinery, with guaranty, it need
not be returned a second time tor re-
pairs, 331 n.
To streets, may employ materials of
street. 266
REPRESENTATIVE BODIES :
Of corporations, towns, counties and
cities may submit matters to arbitra-
tion, 522
REPRESENTATIVES :
Of parties to contract, 7
REQUEST :
Not an order, for extras, 547, 566
By owner to suspend operations is not a
rescission, 684
REQUIREMENTS :
Imposed by public officers are discre-
tionary acts, 155
Of bidders, propriety of certain ones, 153
Of a professional man, 826-837
Of a public officer less exacting than of a
professional man, 857, 858
Of contract in regard to engineer's certi-
ficate, 470-480
RESCISSION OF CONTRACT (see
also Breach of Contract ; De-
fault ; Termination) :
Without notice by owner, 739
Justified without notice, 740
What does not amount to, 684
Rights and liabilities of parties, 737
Status of parties after, 727
To justify, breach by owner must have
prevented performance, 687
Justified by abusive conduct of owner,
688
A just cause for, may be acted upon,
though owner request a continuance
of work, 688
May be made if other party has rendered
performance in manner contemplated,
impossible, 670
When owner refuses to perform, 684
Changes that are not a rescission, 572-
577
Either part may rescind, subjecting him-
self to damages, 681-688
Engineer to determine damages suffered,
743
Powei; of engineer to determine damages
must be expressly reserved, 745
By contractor for good cause dispenses
with engineer's certificate, 440
Its effect on stipulation for liquidated
damages, 323, 728-733
INDEX,
Meferences are to aeetiona.
895
HESOISSION OF CONTRACT— Cbw^.
Of au executed contract, requires a con-
sideration, 69
By one of several joint contractors, 685
RESERVATION :
Of right to owner to revise engineer's
certificate, 448-463
RESIDENCE OF PARTIES :
Described in contract, 57
RESIGNATION OF EMPLOYEE :
A demand for, is a discharge, 808
RESISTANCE :
Of contractor to owners taking posses-
sion of works, court of equity to re-
strain him, 747
RESPONSIBLE :
Significance of term when applied to
lowest bidder, 173
RESPONSIBILITY (see also Liability):
Of one party for the conduct of another,
652-668
For mistakes, efforts to shift liability on
to others, 234, 235
For unauthorized changes by engineer,
235
RESTRICTIONS :
Imposed on bidders :
Propriety of certain, 152
For public work, 146
For private work, 186
Necessity for in contracts for public
works, 137
Preventing certain persons from bid-
ding. 147
By public officers are discretionary, 155
RESULTS :
If lawful and not injurious, owner es-
capes liability for injuries, 640a, 641,
652
Owner may direct independent contrac-
tor in regard to, 660
REVISION :
Of certificate by owner provided for,
448-462
REVOCABLE :
Submission to arbitration is, 527, 492-498
REVOCATION :
Of award :
Of a contract, 183
Of offer :
What will effect it, 97
Requires physical manifestation, 97
Before time for acceptance has ex-
pired, 97
Cannot be revoked after acceptance,
97
Must be communicated to offeree. 97
When offer was to remain open for a
certain time specified, 96, 97
By selling to a third party, 97
\ Of submission to arbitration, 519
RIGHTS (see also Contracts):
Certain rights cannot be made subject of
contract, 86
Of contractor when in default, 697-704
RIGHT AND PROPER :
What is as applied to pay for work
done, 340
RIGHTS OF WAY:
Contracts for and statute of frauds, 109
Delay in securing, 326
RISES :
Assumed by coniractor, 671-680
ROAD:
"Between two cities," defined, 601
ROAD OR TRACK:
Use of terms, ambiguity arising, 601
ROCK EXCAVATION (see also Earth-
works; Excavation):
Included in earth excavation, 623, 629
Extra compensation for, 679
ROOF:
Not specified and not furnished, 400
RUBBISH :
Removal of, by contractor, 274. 275
RULES AND REGULATIONS :
To govern an arbitration, 526
RULES OF MEASUREMENT;
To be employed in ascertaining quanti-
ties, 381-390
RULES OF RE CO VERY (see also Mea-
SURE OP Recovery) :
When owner has terminated con-
tract, 728
Different ones adopted, 703, 704
SALES (see also Statute op Frauds) :
Statute of frauds, effect of on sale of
goods and materials, 98-102
Of growing crops or timber, 106
Of materials, to two different parties, 97
Of franchise, must be for cash, 139
SAMPLES (see also Bids) :
Furnished with bid for public work can-
. not be used for comparing bids unless
they were invited, 155
SATISFACTION (see also Owner's Sat-
ispaction) :
Of owner or company :
Chattel to be made to satisfaction of
customer, 340
Work to be completed to, 259, 335-347,
406-411
Of Engineer : (see Engineer's Certi-
picATE, Decision, Estimate, etc.) :
SCHEDULE OF PRICES (see also
Prices) :
Provision for payment according to,
782-784
Prices to include everything, 782-784
SCOTCH :
Decision, as to power of enginqer, 405
896
INDEX.
References are
SEALED CONTRACTS :
Changed by parol agreements, 69, 131,
561-563
SEALS :
Object of the use of, 561, 799
Necessity of seals, 799
What amounts to a seal, 799
Seal of principal or agent, 33
Failure of sealed instrument, simple
contract sustains, 33
SEAMEN :
Parties to contract, 27
SECRET INTEREST (see also Inter-
est) :
Arbitrator should have none, 365, 508-
515, 523
Avoids engineer's certificate, 423
Of engineer or architect in contract or
work, 365, 508-518a
Of superior officers in contractor's suc-
cess, 518a
Public officers, in public work, 148
SECRET PROCESSES :
Employee prevented from using or dis-
closing such, 819
SECRETARY :
Power to contract, 30, 32, 38
SELECTION OF PLANS :
By public officers, 245-248
SERVANT (see also Independent Con-
tractor : Master and Servant) :
Distinguished from an independent con-
tractor, 652-668
Master is liable for his acts, 652-668
Furnished with a tool, conveyance, etc.,
liability for misconduct, 657
SERVICE OF NOTICE :
Of an order of the court on party en-
joined, 859a
SERVICES :
Gratuitous, must be performed with
care and skill, 826
Eight to a lien for, 86
SETTLING:
In estimating quantities, 381, 383
SEVERABLE CONTRACT:
Distingni-^hed from an entire contract,
674, 680
SHARP PRACTICES :
No part of engineer's duties, 511
SHIP :
Property in materials for, 272, 273
SHORING :
Up a neighbor's wall, liability for in-
jury, 641
SICKNESS :
Will not excuse performance, 678
to sections,
SIDEWALK :
Coal-hole left open by contractor, in-
jury results, 641
Negligence for not keeping clean, 644
To be covered by a roof, 641
SIGNATURE :
What is or is not one ? 795
Stamped or printed, 795
By one of two joint contractors, 796
Of agent to contract, 80
Agent affixing title to signature, 30
Of one party only, 796
Made by another at signer's request, 795
SIGNING OF CONTRACT :
Must be with intent to be bound, 794
Through mistake, 794
A paper with unfilled blanks, 794
Without knowing contents party must
not be negligent, 794
Raises a presumption that it was read,
794
SILENCE :
Not a ratification, 558
SITE OF STRUCTURE :
Not promptly determined, 326
Possession of, to be given, 301-302
Changed and cost increased, 577
Changed by members of board, 556
Implied undertaking on part of owner
that it is free from danger, 674
SKILL (see also Care ; Employee) :
Undertaking a job warrants skill to per-
form it, 256
Determination of skill posse sed by en-
gineer, 830
SLABS (see also Custom and Usage) :
Custom of mills to appropriate, 627
SOUNDINGS :
To be made by contractor, 286
SPECIAL FUND (see also Payments)
Payments for work out of, are limited
to it, 789
SPECIALIST (see also Expert Wit-
ness) :
Opinions maybe adopted by arbitrators,
501, 539, 531
Skill and care required of, 836
SPECIALIZING :
Effect of if not carried out, 400
SPECIALTY, see Seals.
SPECIFIC PERFORMANCE :
Of contract by contractor, 705-707
Discretion rests with court, 707
Instances where it has been decreed,
706, 707
Sentiments favoring, of construction con-
tracts, 706
Will not be required if owner can be
compensated in damages, 706
Of agreements to arbitrate, 351, 519
When alterations have been made, 575
INDEX.
897
References are to sections.
SPECIFIC PERFORMANCE— Co7i<.
Of contracts for personal service, 709
Of contract to sell maps and drawings,
707
Will not be decreed against owner, 708
SPECIFICATIONS AND PLANS (see
also Plans and Specifications, 213-
253) :
Of public work must be made for bid-
ders, 154
Of contract must be same as for bids,
156
What is good and sufficient for public
work required to be let to lowest
bidder, 154
Shown to bidder will bind contractor,
155
Standard for competition adopted must
be followed strictly, 155
A letter may be part of, 216
Of materials, quality required, 277a
Defective, liability for, 237-248
Are controlled by contract, 228
Prevail over plans sometimes, 228
Meaning of determined by engineer
without a hearing, 495
Prevail over engineer's decision when,
370. 381-388, 446
STAGES OF WORK :
Payments upon certain stages, each must
be completed, 677
Liquidated damages for delay in com-
pleting, 313
STANDARD (see also Bids, etc.) :
For comparison of bids, 153
Departure from, in contract for public
work, fatal to its validity, 156
When quantities and character cannot
be determined, 157
STATE :
Should maintain public ways in a safe
condition, 645
STATUTE LAWS (see also Laws) :
Re public works :
Must be strictly observed, 143
That they shall be let to lowest bid-
der, 141
Includes whilt work, 161
Use of statute to escape a burdensome
contract, 148a
Prostituted to purposes not intended,
148a
Making work more expensive, 678
Prohibiting public officers from bav-
in ir any interest in contracts, 148
Making it a penal offense for public
surveyor to be concerned or inter-
ested in the contract, 518
Forbidding the employment of alien
labor, 136, 144
Relating to carving and dressing stone
by citizens of the State, 136, 144
STATUTE "LA^rrS— Continued.
Re public vrorkB— Continued.
Relating to hours of labor and rate of
wages, 136, 144
Prohibiting importation of foreign
labor, 136, 144
Forbitlding * ' store-pay " to em-
ployees, 144
Conferring power to correct errors
in awards, 489
STATUTORY UNITS :
Not affected by custom and usage, 615
STATUTE OF FRAUDS :
Its application to construction work, 111
Executed contracts not within the sta-
tute, 104
What is a sufficient memorandum of a
sale to satisfy, 102
Sale of growing crops or standing tim-
ber, 106
Contract for an interest in lands, 106
Contracts which cannot be performed
within a year, 103-105, 801
Contracts for creation, assignment or
surrender of estates in land, 109
Contracts to pay the debts of others, 110
Contract in consideration of marriage,
111
Meaning of contract, to be determined
by engineer, 401
Verbal promise by architect that con-
tractor should have his pay, 553
STATUTE OF LIMITATIONS :
Objects of, and reasons for, statute, 113
Does not operate against the govern-
ment, 116
Agreements to waive its protection, 117
Does not destroy contract obligation,
but affects the remedy only, 113
Disabilities which prevent operation of
statute, 114
Running of, interrupted by new prom-
ise, 118
Right of action, concealed by fraud,
119-121
Liability of engineer for misconduct
after statutory period has elapsed, 121
Rigidly applied, regardless of hardship,
115
STEAMBOAT :
Built under inspection, found defective,
467
STENOGRAPHER'S NOTES :
As evidence at former trial, 878
STIPULATIONS (see also Contract
Stipulations) :
That no damages shall be claimed for
injuries while riding on a pass, 864
STOCKHOLDER :
Engineer a stockholder in company,
343, 364-366, 509-511
Engineer's or architect's rights under
stockholders' liability acts, 863
898
INDEX,
Iteferences are to sections.
STONE :
Used of inferior quality, 277a
Fell upon a passer-by, liability for in-
juries, 666
Property in, taken from street, 266
STONEWORK :
Custom and usage of, 621. 629
Actual stoue measured in the wall, 618,
629
Defects in, not apparent, 469
STORE PAY :
Statute forbidding, to workmen, 144
STRAW BIDS :
Certified checks to prevent, 168, 169
STREET (see Highway) :
Term includes the sidewalk, 266
Must be kept in a safe condftion, 645
Ownership of ma'erial iu, 566
STREET CLEANING :
Contract for to lowest bidder, must be
advertised, 161
STREET IMPROVEMENT :
Undertaking to keep in repair sometimes
objectionable, 334
STRIKE :
Encouraged by owner, 326
Caused by failure of contractor to pay
wages, 326
Caused by reduction of wages and de-
lay, 326
Outside of contractor's shops, 326
STRUCTURE (see also Works) :
To build, includes excavations and foun-
dations, 600
Removal of temporary, 274-275
Contracts to erect structures, the use and
maintenance of which are contrary to
law or ordinance are void, 76, 87
Equal in strength, value and convenience
is not a substantial compliance, 701
Not erected in a workmanlike manner,
256-258
Failure of from defective plans and spe-
cifications, 239
False by reason of unskillful work, 237
Fell from latent defects of soil, 674
SUBCONTRACT :
When subletting is prohibited, 293-296
SUBCONTRACTORS :
Not liable to owner for negligent work,
17, 257
Changes ajffecting cost of works made
unbeknown to him, 567
Delayed by company's failure to make
surveys, 755
Bound by engineer's estimate, 445
His right to a lien, 762-764
Right to a lien when contractor has cov-
enanted against liens, 762
Cannot have lien for more than con-
tractor's price. 765
Distinguished from materialman, 762
SUBJECT MATTER (see also Consid-
eration ; Contracts ; Works) :
Of contract described, 208-212
Must be lawful, 71-87
Compared with consideration, 71
Destroyed before completion, 674-676
Of controversy, bringing it into court,
892, 893
SUBLETTING (see also Assignment) :
Of contract work forbidden, 289-2^6
Clause prohibiting may be waived, 294
SUBMISSION TO ARBITRATION,
see Arbitration.
SUBSCRIBERS (see also Subscrip-
tions) :
Liability is several in the ordinary form,
49
Partnership, when, 49
SUBSCRIPTIONS :
Stipulations and conditions imposed, 49
Not revocable at will of subscriber, 49
Payment may be enforced by whom, 49
Amount set opposite each name is limit
of liability, 49
Consideration in subscription papers, 62
Misrepresentations in soliciting, 129
SUBSEQUENT AGREEMENTS :
Modifying or rescinding contract, 131,
560
Cause of extra work, 535
Contract modified by engineer's powers
under, 398, 399
To complete work or do extra work
may amount to a waiver of time o2
completion, 726
Must be founded on a consideration, 131
By owner, engineer's decision re, 596
SUBSIDENCE :
In estimating quantities, 381, 382
SUBSTANTIAL PERFORMANCE
(see also Recovery of Contractor):
Recovery of contractor for, 441-443,
698-702
In good faith entitles contractor to re
cover, 697-704
What is or is not, 702 "
Held a mixed question of law and fact,
442, 702 '
Deviations and omissions must be slight
and unimportant, 701
Ratio of omissions to work performed,
702
If works are adapted to purpose intend-
ed, 700
When work has become more difficult
and expensive, 678
When works have been destroyed, 677,
678
Delay does not prevent a, 326
Power of engineer to determine cannot
be implied, 370, 591-596
INDEX
899
Jteferences are to sections.
SUCCESS :
Not a test of skill or capacity, 829, 858
SUFFICIENCY OF PLANS, ETC.
(see also Insufficient Plans, etc.):
Under contract for work and materials,
240
Under contract for a complete structure,
240
Who warrants it, 237-248
Warranted by owner, 239
Provision by which contractor guaran-
tees it, 236
Contractor guarantees them if he makes
unauthorized changes, 242
SUFFICIENCY AND SKILL :
With which work is done, engineer to
decide, 388
SUFFICIENT :
What is a sufficient certificate, 474
SUNDAYS (see also Days):
Are reckoned in computing number for
performance, 310
Time of completion falls on a holiday,
310
SUNDAY CONTRACTS :
Are invalid in most states, 59, 79, 95
Contracts for employment to work on
Sunday, 59
Necessary work, what is, 59
Contract drafted on Sunday but deliv-
ered on week day, 59, 95
SUPERFICIAL FOOT :
Of stone work, defined, 621, 629
SUPERINTENDENCE :
Should prevent material errors and omis-
sions, 839, 840
Not excused by presence of owner, 838
Engineer or architect liable for neglect
in, 838
Contractor to pay for in case of delay,
312
SUPERINTENDENT (see also Engin-
eer or Architect ; Foreman):
Contractor to keep one on works, 288
Right to a lien, 861, 862
SUPERVISION OF ENGINEER :
Work to be done under, effect of such a
leservation, 663-668
SUPERVISION OF WORK :
Engineer to have, but not control, 647
SUPPLEMENTAL CONTRACT :
Extiiiguishinir prior contract, 572-577
SUPPLY-MAN (see also Material-
man):
Liable to purchaser only, 277a
SECURITY :
Form of, prescribed by public officers,
169
SURETY (see also Alterations) :
For faithful performance, 168, 169
Contract of, within statute of frauds,
110, 111
Assumes burdens and takes benefits
* when he undertakes to complete work,
18
Obligations limited to those assumed in
bond, 20
Liability to third parties, 19
Liability to contractor's creditors, 19
Liability to subcontractor, 19
Good and sufficient, required by statute,
139
To be named in bid, 169
Offered by bidder, responsibility deter-
mined by public officers, 169
Power to determine good and sufficient,
172
Refusal to qualify as, 169
Released by unauthorized changes, 20
Release of, need not suffer injury, 20
Released by overpayments to contractor,
20
Released not by offsetting claims, 20
Released by payments without engineer's
certificate, 20
Released by extension of time of com-
pletion, 20
Released by changes in plans, 20, 21
Effect of alterations on, 20-22, 576
Should be consulted before making
changes, 576
Released by a change of parties, by as-
signment, death or dissolution, 21
Released by change of architect, 20
Released by performance becoming im-
possible, 22
Not released by giving notice of inten-
tion to terminate contract, 739
Bound by engineer's estimate, 445
On bond of contractor, enforcing lien,
755
Covenants against lien, contractor can
have none, 761
SURVEY :
Delegation of power to enter lands and
make, 507
As evidence in a trial, 879
Mistake in, by city engineer, 858
Custom in making, to allow or add to
length of chain, 609, 615, 629
SURVEYOR :
May speculate in property of employer,
515
SURVEYORS STAKES :
Liability for injury from falling over,
842
SUSPENSION OF WORKS :
Reasons foi- providing for, 742
In wliole or in part, without liability for
damages, 740
Not always a breach, 683, 684
900
INDEX.
^References are to sections.
SUSPENSION OF WOBKS— Cont'd.
By owner, he is liable for difficulties
arising in consequence, 683, 684
And contractor not allowed to complete
when resuoied, 577 •
By mutual consent, 684
TABLE OF OASES :
Pages xxxvii-lxxx.
TAKING AWAY WORK, see Termi-
nation.
TAKING POSSESSION :
Of incomplete works, 701
TAXPAYER :
May enjoin performance of public work
under an illegal contract, 157
May restrain public officers from award-
ing contract for public work illegally,
177, 178
TECHNICAL AND TRIVIAL :
Omission will not prevent recovery by
contractor, 697-704
TELEGRAPH MESSAGE :
Stipulation on its back not read, 794
Acceptance of offered by, 95
TEMPEST :
Works destroyed by, 671-680
TENANCY :
Possession of contractor is not, 767
TERMINATION OF CONTRACT (see
also Breach; Rescission):
Binding effect of agreement for, 719, 720
Power reserved to owner for certain
causes, 710-717
Should be an act of last resort, 737
Stipulations for are not in favor with
courts, 718
Owner cannot terminate unless power
has been reserved, 722
Right reserved if work be not completed
by specified time, 727
Effects to be considered, 718
To accomplish it owner must act
promptly and positively, 718, 721
Power must be exercised before time for
completion is passed, 724
"When date of completion is not men-
tioned, 724
Power to terminate reserved without re-
gard to time of completion, 726
Notice must be given, 739
Contract is not terminated when notice
is given but when time of notice ex-
piies, 739
Act or failure to act by contractor does
not itself render contract void, 721
Power reserved to owner does not confer
power upon contractor to abandon and
require owner to complete, 721
Power must have been properly exer-
cised or liquidated damages cannot be
withheld, 731
TERMINATION OP CONTRACT—
Continued.
Power to terminate is not authority to
hire men and purchase materials, 736
Engineer to determine what is due con-
tractor, 743
Mandamus and injunction to prevent,
747
Completion by owner, who is required to
show what it cost, 731
TERMS AND PHRASES :
Explained by parol evidence, 122-126
TERMS OF CONSTRUCTION:
Defined and applied, 599-602
TERM OF SERVICE (see also Employ-
ment) :
Permanent, 801
Does not determine relation of owner and
contractor, 655
TESTIMONY (see also Expert Testi-
mony) :
Of engineer not admissible, though he
be an umpire, 505
Of arbitrator in regard to his award, 491
TESTS :
To be made by contractor, 286, 287
For classification of excavation, 385
That determine relation of master and
servant, 654-668
TESTING APPARATUS :
To be provided by contractor, 287
THIRD PARTIES :
Not bound by acceptance or approval of
inspectors, 468
THOUSAND :
Unit of measure of brickwork, 620, 625,
629
TIMBER ;
Custom and usage of, 625, 629
TIME BOOK :
Evidence of value of services and work,
693
TIME (see also Time of Completion) :
Made essence of contract, 311
For offer to continue or remain open, 97
No extra or additional time allowed for
extra work, 314
For delivery of materials sold, 310
Required to establish a usage, 608
TIME OF COMPLETION (see also
Days ; Delays ; Liquidated Dam-
ages) :
Fixed in contract, 300-308
Determined by contract rather than
specifications, 228
Should be clearly stated, 309
Falls on Sunday or a holiday, 310
Not specified must be in a reasonable
time, 310
May be changed by parol agreement, 130
INDEX.
901
References are to sections.
TIME OF COMPLETION— (7o/i<mt^ed.
Extension of and effect on liquidated
damage named, 324-326
When works have been destroyed, 675
Owner need not wait for before under-
taking to complete, 738
Power to terminate contract must be
exercised before, 724
Extras ordered after it has passed held
a waiver of right to require work
done by time, 325
Calculation of period, 310
TITLE :
To materials delivered, 367-273
TOOLS :
Delay in furnishing by owner, 326
TO PREVENT ALL DISPUTES :
Introduction to contract stipulation, 369
TORTS :
Executor not liable for torts of person he
represents, 12
TOWN :
Liiible for injuries from defective con-
struction, 645
TRACK:
Distinguished from road, 601
TRADE SECRETS:
Protectioti of to firm, 819
TRADE USAGES, sec Custom and
Usage.
TREASURER :
Power to contract, 30, 32, 38
TRESPASS :
By contractor in performance of work,
275. 767
Liability of engineer for trespass of
workmen, 275
TRIAL COURT :
Determines what practical tests may be
made, 898
TRIBUNAL :
Parties can resort to none other than pro-
vided in their contract, 410-412
Created to decide all disputes, 367, 368
Character of may be destroyed, 454
TRIPLICATE :
Contract to be executed, 791
TRUE SPIRIT, MEANING AND IN-
TENT :
Of the plans and specifications, 258
TRUTH :
Of statements in proposal, oath as to,
145. 150
TRY TO COMPLETE :
By a certain date, 310
TUNNEL WORK :
Recovery for excavation outside of shell,
421, 435
ULTRA VIRES :
Contracts by corporation, 142
UMPIRE (see also Aubitbator ; Engin-
eer AND Architect) :
Power of arbitrators to call in, 531
Between two arbitrators who cannot
agree, 519-533
Must grant a hearing, 494, 530-583
Must hear the cause, 531
Decides matters of disagreement only,
531
May not be selected by lot, 531
Should have no secret interest in cause,
343, 364-366
Engineer to be an umpire between the
parties, 335-469
UNAUTHORIZED ACTS :
Of engineer, owner's liability for, 37,
39. 370-380, 553, 768
Changes in plans, etc., and liability
therefor, 234, 235
Established by implication, ratification,
. or adoption, 34, 377, 557, 558
Of individual members of board, ratified
or adopted, 557
Not ratified by acquiescerfce, 557
UNBALANCED BID (see also Bros
AND Bids and Bidders) :
Profit -paying work cannot be omitted
under it, 584
UNDERMINING :
Neighbor's structures, liability for, 641
UNDERSTANDING :
Manner of ciuning to, 92
Of court, expert must consider, 869
UNDERTAKING :
As regards the undertaking, 71-87
Of professional man, 826-837
Is a guaranty of ability to perform, 826-
837
To construct an article requires it shall
be suitable for purpose intended, 256-
258
UNDUE ADVANTAGE :
When meaning of contract is to be de-
termined by engineer, 401
UNFAIRNESS :
Of engineer, amounts to fraud, 428
UNJUST ENRICHMENT :
The law will not allow, 697
UNRESTRICTED BID :
To furnish materials, 184
UNSETTLED CLAIMS :
Power of city to require contractor to
pay. 756
Money may be retained to meet, 754
UNSIGNED SKETCH :
Not a written order for extras, 547
USAGE see Custom and Usage.
902
INDEX.
References are to sections.
USE, see Acceptance and Use ; Occu-
pation AND Use.
UTILITY :
Of structure erected, responsibility for,
241
VALIDITY OF CONTRACT :
Determined by laws of what place, 58
VALUE :
Distinguished from price, 391
To be determined by engineer, 391
Of extras, engineer to determiue, 592-596
Of extras must be determined as re-
quired by contract, 595
Shown by custom and usage, 626
Of prospective profits, impossible to de-
termine, 694-696
Of competitive plans lost by express
company, 815
VALUERS :
Distinguished from arbitrators, 525, 348
VERBAL AGREEMENTS :
To pay the debts of another, 110-111.
VERBAL EXPLANATION :
Cannot include items not mentioned in
advertisement for proposal, 161
To be reduced to writing, 797
VOID AGREEMENTS (see also Con-
tracts, Infants, Imbeciles, Luna-
tics, Mabried Women, Public Pol-
icy) :
Not made void by default of contractor,
721
WAGES (see also Employee) :
Do not determine relation of owner and
contractor, 655
Minimum price for labor cannot be
fixed in advertisement for public
work, 157
On public works fixed by statute, 136,
144
Statute requiring wages to be paid when
man is discharged, 144
' Payment of required at certain intervals,
144
Payment of wages in store pay forbidden
by statute, 144
Not agreed upon, 809
Mistake in regard to wages to be paid
employee. 90
To be paid before final payment to
contractor, 750-754
WAGE-BOOK :
Evidence of value of services and work,
693
WAIVER (see also Contract Stipula-
tions) :
Of express terms of contract, 580
Of strict performance of contract, 417,
701, 721, 726
Is a question for jury, 413, 417, 494
WAIVER— Continued.
Of contract stipulations by not enforc-
ing tbem, 53.5
Of owner's rights by failiig to object,
581
Of one condition does not affect others,
572
May be proved by acts and conduct, 417
Not to be implied from silence, 726
Burden of proof of, is on party asserting^
it, 417
Of lime of completion and penalties,
323-326, 573, 726
Of stipulation for liquidated damages,
325, 326
Of rights, by permitting contractor to
continue at work after date of comple-
tion, 726
Of right to completion on date named,
by ordering extra work, 325
Extension of time not to affect a waiver»
725
Of written order for extras, 565, 566
When amount of work has been les-
sened, 586
Of right to hearing by engineer or arbi-
trator, 494, 527
Of notice of hearing, 496
Of stipulation that engineer's decision
shall be condition precedent to lia-
bility, 413, 417
Of right to appeal to court, 86
Of form of certificate required by con-
tract, 474
Of right to object to engineer's miscon-
duci, 525
By contractor of engineer's interest, 510
Of provision prohibiting subletting, 294
Of misconduct by contractor, 687
Effect of. when works have been de-
stroyed, 675
Of defects cannot be implied from occu-
pation and use, 701
Of right to terminate contract, all cir-
cumstances will be considered, 720
Of right to terminate contract, 723-726
May lose power to terminate contract,
733
If power to terminate is not exercised
before time for completion, 724, 726
Of right to damages by exercise of
power to take work away from con-
tractor, 731
Of lien, by agreement, 761
Of subcontractor's rights to a lien does
not prevent contractor from acquiring
one, 762
Of right to discharge employee, 807
WALL:
Includes excavations, 600
Measurement of masonry in wall, 620,
621. 622, 629
Taken down to point designated by
architect, 389
INDEX.
903
Meferencea are to aectlona.
WALL COUNT :
la 'brickwork, 620, 629
WANT OF CARE AND SKILL :
Judicial officer uot liable, 844-849
Of a professional man. 835
Liable to employer only, 842
WAR:
Effect upon parties to a contract, 27
A disability under statute of limitations,
115
WARRANTY :
None implied when materials are open to
inspection, 277a
Cannot be considered in comparing bids
for public work unless it was invited,
155
Exacted from lowest bidder, 157
Of accuracy by professional man, none
implied, 829, 858
WASTE MATERIALS :
Who must care for, 274, 275
Provision for removal of, 274, 275
Disposal of by contractor, 274, 275
WATER :
For fire purposes, city to provide, 645
WATER CLOSETS :
To be provided by contractor, 285
WATER AND GAS PIPES :
Injiiied by contractor, 638
WATER-TIGHT ;
Not so when automatic apparatus are re-
quired to keep it so, 257
WEATHER :
Unsuitable for progress of work no ex-
cuse for delay, 678
WEIGHT AND VALUE :
Of expert testimony for the jury to de-
termine, 889
WEIGHING AND TESTING ;
To be done by contractor, 287
WHARF ;
Built under inspectors found defective,
467
WIFE, see Husband and Wipe.
WILLFUL MISCONDUCT :
Of eugineer or architect, 595 .
Amounting to fraud of engineer, 428
WITHDRAWAL OF BID :
Before and after it is accepted, 181, 183
WITH REASONABLE PROMPT-
NESS:
Meaning of expression, 310
WITNESS (see also Expert Witness):
To execution of contract, 799
Cannot testify as to meaning of contract,
126, 885
Cannot give his understanding of con-
tract terms, 590
Must know papers are correct in order
to testify to them, 878
WITNESS— Con tinued.
May have read to him evidence at a for-
mer trial, 878
WORDS AND PHRASES :
Meaning of many, 629
Meaning explained by parol evidence,
122-126
WORK (see also Acceptance; Engineer
OR Architect; Contractok ; In-
spection ; Payment ; Plans and
Specifications; Workmanlike):
Description of in contract, 208-212
Done by several contractors, 673
No liquor to be sold about works, 283
Contract for, not within statute of frauds,
106
Not to be sublet, 289-296
Performance of does not usually create
indebtedness, 410-412
Time and delay in completing :
Commencement and completion, 300-
308
Suspended until after time for com-
pletion, 684
To be delayed or suspended without
liability for damages, 740-742
Suspended, contractor not allowed to
complete, 577
Inaccessible, excuse for delay, 678
Taken from contractor, its effect on
liquidated damages for delay, 323
Extras and omissions :
Embraced by contiact work, 578-581
Clearly outside of contract, 569
Not specifically mentioned in contract,
600
Implied but not mentioned, 600
Limits of not defined, 601
Defined by boundaries or dividing
lines, 584
No extra pay for better work than
contract requires, 680
No extra pay for work included in con-
tract, though promised by engineer,
378
Caused by engineer's mistake, recovery
for, 435
Made more difficult by alterations, 582
Becoming more diflacult, 678-680
Done without claims for extras held
within contract, 580
Amount of reduced by changes, 568
Profit-paying omitted, 582
The easiest part thereof done, 583
Inferior and defective :
Inspection, acceptance or rejection of,
276-282
To be pulled down and opened for
examination, 280
To be done in a workmanlike manner,
253-258
To be performed according to true
spirit, meaning and intent, 226
904
INDEX.
References are to sections.
WORK— Continued.
Inferior and defective — Continued.
Unskillf uUy or negligently performed,
237
Defective, to be replaced, 328, 331
Completed and accepted, contractor
not liable for defects, 446, 463-469
Inspected and approved by inspectors
whose decision is not final, 468
Rejected as defective, accepted if de-
ficiency is made good, 467
Defects that prevent a recovery on a
substautial performance, 702
To be kept in repair for period named,
327-384
Liability for its protection :
Contractor to protect, 630, 631
Damages to, contractor liable, 634-636,
646
Destroyed without fault of either
party, 674
Destruction of, loss to fall upon con-
tractor, 671-680
Divided among several contractors,
and destroyed, 676
Let in parts, owner should insure, 673
Destroyed, money advanced recov-
ered. 675
Destroyed, before completion, lia-
bility, 671-680
Safety of, owner liable after accept-
ance, 643
Owner may direct as to results, with out
making contractor his servant, 660
Owner should not control the manner
of doing it by an independent con-
tractor, 654-668
Harmless and lawful liability for in-
jury resulting, 640a
The performance of which will result
in injury to others, 646, 652
To satisfaction of owner or engineer :
To owner's satisfaction, agreement in-
valid, 340
To satisfaction and approval of en-
gineer, 841
All questions in regard to submitted
toengineer, 393-396
Engineer to have direction and super-
vision but not control, 647
To acceptance of engineer, but not ac-
cording to plans and specifications,
370, 381-383. 446
Must conform to contract and specifl-
CMtions or engineer should not ac-
cept it, 388-390
Insufficiently done does not avoid en-
gineer's certificate, 446
Preliminary estimates of incorrect,
588, 589
Difficult to estimate it when com-
pleted, 360, 437
To be rejected when engineer has
gone wrong, 451
WOUK—Coniinued.
Payment for :
Out of budgeted appropriations or a
special fund, 789
After certificate that it is free from
liens, 759-762
Labor and materials applied to a
chattel, 675
Acceptance of, a waiver of complete
performance, 701
WORKING DATS :
Stipulation defining, 305
WORKING FORCE :
To be increased by owner or engineer.
738 . & .
WORKING PLANS :
Make increased cost, 584
Diflier materially from originals, 584
WORKMANLIKE MANNER :
Meaning of the words, 257
Provision that work shall be done so,
253-258
Words not affected by custom and usage,
257
WORKMEN :
Furnished by contractor, relation to
owner, 657
WRITING :
Why contracts are in writing, 799
WRITINGS :
Of an author, copyright in, to when an
employee, 819
WRITTEN CONTRACTS (see also Con-
TRACTS) :
Certain contracts required to be in writ-
ing by statute of frauds, 98-111
Embodiment of prior parol agreement,
91, 97, 183, 797
Cannot be changed by prior under-
standings, 560-563
Cannot be changed by parol proof, 122-
126, 560-563
Modified by parol agreements, 130-131,
. 561
Reduced to a parol agreement by
changes, 574
To be executed later, 797
WRITTEN CERTIFICATE .
Of engineer when required, 473-480
WRITTEN INSTRUMENTS :
Attached to contract, are embodied
therein, 222
Referred to as attached to contract not
attached, 219
Unauthorized changes in liability there-
for, 235
WRITTEN MATTER :
Of a contract prevails over printed
matter, 231
INDEX.
905
WRITTEN ORDER :
For extra -work :
Required by contract, 539-553
None needed for work outside of con-
tract. 569
Required by ordinance, 647
£tefereneea are to sections,
WRITTEN OBjyER— Continued.
For extra work — Continued.
To be attached to contract, 546
Progress certificates are not, 548
An unsiirned sketch or plan is not, 547
May be waived, 535, 565
LIST OF LAW BOOKS
REFERRED TO, AND ALLIED TO THE SUBJECT OF
ENGINEERING AND ARCHITECTURAL JURISPRUDENCE.
LAW PUBLISHEES AND BOOKSELLERS.
Baker, Voorhib and
Damages, Measure of, by Theodore
Sedgwick. 8th Ed. 3 vols., 2320 pp.
1891. $18.00
Expert Testimony, by Henry W. Ro-
gers 589 pp. 1891. $5.00.
Mechanics' Liens (N. Y.), by Cummings
& Gilbert. 521 pp. 1897. $4.50.
Company, New York.
Negligence, by Shearman & Redfield.
5th Ed. 2 vols. 1898. {In Press.)
Negligence of Municipal Corporation*.
byD. A. Jones. 656 pp. 1892. $6.00.
Street Railways, by Henry J. Booth.
767 pp. 1893. $6.00.
Ultra Vires (Brice's), by Ashbel Green,
924 pp. 1880. $6.00.
Banks and Brothers, New York.
Boundaries, Fences, etc., by R. H.
Tyler. 620 pp. 1870. $6.00.
Contracts, by Frederick Pollock (Eng.).
Amer. Ed. by Franklin S. Dickson. 747
pp. 1888. $4.00.
Evidence, by John Pitt Taylor (Eng.).
1592 pp. 1887. $10.00.
Insurance, by George Richards. 690
pp. 1893. $3.75.
Liens, by D. Y. Overton. 865 pp. 1883.
$6.00.
Mandamus, by S. S. Merrill. 542 pp.
1892. $5.00.
Municipal Corporations, by Christopher
O. Tideman. 1026 pp. 1894. $6.00.
Master and Servant, by C. M. Smith
(Eng.). Amer. Ed. 802 pp. 1887. $4.00.
Negligence, by Edward B, Thomas.
1565 pp. 1895. $7.50.
Principal and Agent, by Wm. Evans
(Eng.). Amer. Ed. by J. C. Bedford.
686 pp. 1888. $4.00.
Real Property, by James M. Kerr. 3
vols., 2765 pp. 1895. $16.00.
Sales, by Lord Blackburn (Eng.). 464
pp. 1887. $3.00.
Usages and Customs, by J. H. Browne
(Eng.). Amer. Ed. by S. S. Clarke. 418
PP4 1881. $4.00.
Callaghan and Company, Chicago
Agency, by Floyd R. Mechera. 1070
pp. 1889. $6.00.
Damages, by J. G. Sutherland. 3 vols.,
2624 pp. 1882. $18.00.
Injunctions, by James L. High. 2 vols,,
1546 pp. 1890. $12.00.
Public Offices and Officers, by Floyd
R. Mechem. 866 pp. 1890. $6.00.
Railways, by David Rorer. 2 vols.,
1737 pp. 1884, $12.00.
Railway Decisions, by John F. Lacy.
2 vols., 1389 pp. 1884. $16.00.
Edward Thompson Company, Northport, L. I., N. Y.
American and English Encyclopaedia of Encyclopaedia of Pleading and Practice,
Law. 32 vols , about 1200 pp. ea. 1887- Several vols. 1895—.
97. {2d Ed. in Press.) Railway Decisions, A Digest of, Several
vols. 1895—.
Prices and terms of above books may he had on application to puhlislier.
LAW PUBLISHERS AND BOOKSELLERS.
F. H, Thomas and Company, St. Louis.
Expert and Opinion Evidence, by John
D. Lawson. 667 pp. 1883. |6.00.
Negligence, by S. D. Thompson. 2
vols.. 1561 pp. 1880. $12.00.
Usages and Customs, by John D. Law-
son. 621 pp. 1881. $6.00.
Little, Brown and Company, Boston.
Agency, by Joseph Story. 720 pp, 1882.
$6.00.
Arbitration and Award, by John T.
Morse, Jr 741 pp. 1872. $6.00.
Contracts. Summary of, by C. C. Lang-
dell. 277 pp. 1880. $2.50.
Contracts, by William W. Story. 5th
Ed. 2 vols., 1800 pp. 1874. $12.00.
Copyright, by Eaton S. Drone. 828 pp.
1879. $6.00.
Corporations, by Victor Morawetz. 2
vols. 1886. $11.00.
Easements and Servitudes, by Emory
Washburn, 4th Ed. 875 pp. 1885. $6.00,
Highways, by J. K. Angell and Thomas
Durfee. 665 pp. 1886. $5.00.
Marine Insurance, by Theophilus Par-
sons. 2 vols., 1400 pp. 1868. $12.00.
Mechanics' Liens, by Samuel L. Phillips.
878 pp. 1883. $6.00.
Municipal Corporations, by
Dillon. 2 vols., 1696 pp. 1890.
Patents, by George T. Curtis.
1873. $6.00.
Patents, by W. C. Robinson.
1890. $19.50.
Railroads, by Edward L. Pierce,
pp. 1881. $6.00. (Out of Print.)
Railways, by Isaac F. Redfield. 6th.
Ed. 2 vols., 1680 pp. 1888. $12.00.
Real Property, by Emory Washburn.
5th Ed. 3 vols., 2467 pp. 1887. $18.00.
Watercourses, by J. K. Angell. 1877.
$6.00,
John F.
$12.50.
4th Ed.
3 vols.
658
The Boston Book Company, Boston.
Evidence, by John Pitt Taylor (Eng.).
Amer. Ed, by Chas. F. Chamberlayne.
8 vols. , 1930 pp. 1897= $18. 00.
Mandamus and Prohibition, by H. G.
Wood. 278 pp. 1891 $3.50.
Master and Servant, by H. G. Wood*
990 pp. 1886. $6.50.
Railroads, by H. G. Wood. 3 vols.,
2386 pp. 1894. $15.00.
The Bowen-Merrill Company, Indianapolis.
Railroads, by B. K. and W. F. Elliott. Roads and Streets, by B. K. and W. F.
4 vols., 3565 pp. 1897. $24.00.
Elliott. 818 pp. 1890. $6.00.
Books that may be Ordered through any Law Bookseller.
Architectural Jurisprudence, by Elmes.
1827. {Out of Prim.)
Architect, Owner and Builder before the
Law, by T. M. Clark. 418 pp. 1894. $3.50.
Awards, by Francis Russell (Eng.). 7th
Ed. 1024 pp, 1891. $9.00.
Building and Building Leases, by Judge
Emden (Eng.). 3d Ed. 733 pp. 1895.
$5.50,
Building and Buildings, by A. Partlett
Lloyd. 669 pp. 1888. $5.00.
Building, Engineering and Ship-build-
ing, by Alfred A. Hudson (Eng ). 2 vols.,
1226 pp. 1895. $15.00.
Civil Engineers, Architects and Con-
tractors, by McCassey & Strahan (Etig.),
430 pp. 1898. $3.50.
Contracts, by C. G. Addison (Eng.).
9th Ed. 1491pp. 1892. $1500.
Contracts, Digest of Law of, by S.
Martin Leake. 1440 pp. 1892. $9.50.
Engineering and Architectural Juris-
prudence, by John C. Wait. 1000 pp.
1898. $6.50.
Master and Servant, by W. F. Bailey.
647 pp. 1894. $6.00.
Railway Companies, by Godefroi &
Shortt (Eng.). 953 pp. 1869. $9.50.
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