GIFT TO THE LIBRARY CIVIL ENGINEERING DEPARTMENT UNIVERSITY OF CALIFORNIA BY PROFESSOR FRANK SOULE 1912 m WORKS OF JOHN C. WAIT PUBLISHED BY JOHN WILEY & SONS. Engineering and Architectural 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. 8vo, 712 pages, cloth, $5.00 ; sheep, $5.50. The Law of Contracts. A Text-book for Technical Schools of Engineer- ing and Architecture. 8vo, 346 pages, cloth, $3.00. THE LAW OF CONTRACTS. A TEXT-BOOK FOE TECHNICAL, OP ENGINEERING AND ARCHITECTURE BY JOHN CASSAN WAIT, M.C.E., LL.B., (M.C.E. CORNELL; LL.B. HARVARD,) Attorney and Counsellor at Law and Consulting Engineer ; Member of the American Society of Civil Engineers ; Sometime Assistant Professor of Engineering, Harvard University ; Assistant Corporation Counsel, The City of New York. Author 1 of Engineering and Architectural Jurisprudence ; The Law of Operations Preliminary to Construction in Engineering and Architecture; 1895-Edition, The Car-Builders' Dictionary; etc. FIRST EDITION. FIRST THOUSAND. NEW YORK: JOHN WILEY & SONS. LONDON: CHAPMAN & HALL, LIMITED. 1901. Engineering Library Engineering Library Copyright, 1901, BY JOHN CASSAN WAIT. ROBERT DRUMMOND, PRINTER, NEW YORK. PREFACE. ALL business is conducted through the medium of contracts, and whether it be the ordinary affairs of domestic life by means of simple parol agreements, or the erection and completion of great public works by carefully prepared specialties, the same law applies to, and the same principles govern, both. Without the medium of contracts the world's business would be at a stand- still, and no man can do business successfully without some knowledge of the law governing contracts. Every day, as competition increases, this is becoming more apparent, and every day it is brought more forcibly to the attention of the schools, both general and technical, until now many of the universities and technical schools offer to their students courses in general business law, consisting chiefly of the law of contracts. This book has been published in response to a request from several of the larger and more progressive industrial schools of the continent for a text-book on the Law of Contracts. The necessity of such a book in the industrial professions arises from the universal practice of engineers and architects to prepare the contracts and specifications for public and private works. The preparation of the specifications is the proper and legitimate undertaking of the engineer or architect, and the contract, which embodies and makes operative the specifications and plans, must be drawn with reference to them, to give to them the force and effect required. If the specifications be drawn by the engineer or architect, and the contract be prepared by an attorney, conflict often results between the two instruments, creating ambiguity and litigation. Between the two evils, the lack of law and thq want of technical knowledge, the former is regarded as the lesser, and the preparation of both the specifications and the contract has been, and is, intrusted to engineers and architects. A study of the statistics of public and private work shows that more than one half the contracts are prepared by engineers or architects without consul- tation with the legal profession. This is unfortunate, not only for the parties having the work done, but for the contractor undertaking it. A contract prepared without regard to legal principles is pretty certain to lead to litiga- tion, either from misunderstanding or misinformation as to the legal rights and liabilities of the parties, or from a failure to create a valid and binding 789592 i v PREFA CE. contract as the parties intended. As this practice is the result of the condi- tions which prevail in most instances where public and private work is under- taken and prosecuted, it has not been and will not be corrected by advice to the parties, or to their engineers, that they should not perform functions which are the proper work of a lawyer. It is hoped to remedy the evil consequences of such a practice, in a measure at least, by placing before engineering and architectural students a treatise upon the law of contracts, and particularly of those contracts pertaining to construction work, and the employment of engineers and architects. The chapters here presented are the substance of a course of lectures delivered by the author some years ago before the technical classes in engineer- ing and architecture at Harvard University, and which were received with so much favor as to encourage the author to publish them. This was first done in his book on " Engineering and Architectural Jurisprudence," wherein they were embodied together with other material subsequently collected and bearing upon the same subject. That work is more comprehensive than is required for a text-book. It would require more time to cover it than the average tech- nical school can spare from the very full course of study prescribed, and so this abridged edition has been issued. The present volume contains the essential principles upon which valid contracts depend and the main features of the statutes which modify and limit the obligations of contracts, and also, in a fairly complete and concise form, the law of bidding and letting. The part devoted to engineers' and architects' employment should be of much interest and practical benefit to students who contemplate a professional life, or a business career in which they may become employers. The chapters therein contained will cultivate in young men a realization of the obligations assumed and of the duties imposed by employment, whether as mere employee, or as professional man, or as public officer. A study of the chapter on the employee's rights in his designs and inven- tions will safeguard the productions of their creative genius, and will save them chagrin from having heedlessly or ignorantly bartered away the fruits of their labor and technical training. If in after-years they be engaged as expert witnesses, they will find the chapter on the employment of expert witnesses of much value. Every young man in the technical professions is quite certain to be called, sooner or later, to act as an expert witness, and he should not accept such a call without some advice or reading to assist him in the presen- tation of the case to the court and the jury, and to guide him in his conduct before them. The book does not perhaps present anything new so far as it describes or explains the elementary principles upon which the law of contracts is based, but the author claims for it so much novelty as is contained in a book made of new material and of instances peculiar to the engineering and architectural PREFA CE. V professions. Almost all of the illustrations used and the cases cited as authorities are those that have arisen in engineering and architectural work, and which have had in them serious lessons either for the owner or for the contractor or builder concerned in them. These instances add to the subject-matter and give to the student much information belonging strictly to- engineering and architecture which cannot be obtained from any other source. The favor with which the author's " Engineering and Architectural Juris- prudence ' ' has been received relieves him from anxiety for the present publi- cation; except that students who purchase this text-book edition will, when they enter professional practice, find it incomplete. If the difference in the cost of the two books be not a matter of much importance to the student, he is recommended to purchase in the first instance the complete work on " Engineering and Architectural Jurisprudence." From his own experience the author is enabled to speak thus confidently of the value and interest that the book should have for the student of engineer- ing and architecture. At the beginning of his professional career as an engineer he felt the lack of the information it contains and came to know full well the tribulations and trials which young men will meet. As a teacher and lecturer he knows the interest which the subject has for students; and as an officer of a great city (having in hand the contracts for its public improve- ments) he realizes the value to engineers and architects of some knowledge of Contract Law as illustrated in the contract forms and specifications sub- mitted to him by technical men, some with, and others without, such knowledge. To the student the author would say a word in regard to the study of contract law, which perhaps will apply to the study of any subject, viz., that the closest attention should be given to the fundamental principles or essen- tial elements. It should not only be the first step in the drafting and preparation of the contract, but it should be the last consideration before the final copy is executed. A final revision of the whole instrument prepared should always be made to see if it contain the elements of a valid and binding contract, and that it is within the statutes limiting and modifying the law of contracts. It is surprising what a number of contracts, prepared and passed even by lawyers, are declared invalid and of no binding effect because they lack one or more of the four essential elements requisite to the validity of a binding contract. Do not, above all things, be hurried in the preparation and execution of a contract and the specifications of a work. The book is designed to cultivate in young members of the industrial professions a proper understanding and appreciation of business and business- relations. Graduates of technical schools often obtain a contracted view of their professional duties and labors. There ft danger of narrowing their work to the ministerial duties of the drafting-room, the shop, or the field. Many men technically trained or educated remain in the shop or the drafting-room, VI PREFACE. while less skillful men, who have acquired a business experience, become superintendents, managers, and presidents of the companies employing them, and frequently they are more justly entitled to promotion to such offices. A technical education prepares a man for a higher sphere than that of machinist, designer, or surveyor. Supplemented with a good business training, it fits a man for the direction and superintendence, of large works. Technical students should enter a broader field of action, by acquiring a better apprecia- tion of business relations and business principles, and a due sense of their duties, liabilities, and responsibilities. There is no business for which the training of an engineer better fits him or that is likely to prove more profitable and satisfactory than that of a contractor and builder. A young man who starts out in his professional career with a fair knowledge of the law of contracts is certain to show an interest in business methods and principles. If he will cultivate such an interest and make observations and memoranda of the cost of labor, materials, and equipment, he will soon have data which, together with those qualifica- tions previously acquired by every engineer, viz. , the capacity to estimate, design, and erect works, will give him all that is required to undertake con- struction work and to become a successful contractor. It is the author's hope that by the publication of this work he has con- tributed something that shall cultivate in technical students an interest in such business relations as are created and fixed by contracts. If that be accom- plished, he will feel that he has conferred a personal benefit upon the student and a universal and lasting service to the technical professions. 220 BROADWAY, CITY OF NEW YORK. January 30, 1901. CONTENTS. PART I. LAW OF CONTRACTS IN GENERAL. CHAPTER I. ESSENTIAL ELEMENTS OF A CONTRACT. LEGAL AND ILLEGAL CONTRACTS. THE PARTIES TO A CONTRACT. SECTION PAGE 1. Introduction , t 1 2. Essen I ial Elements of a Contract , 1 3. The Introduction to a Contract , 2 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. The Representatives after Death, or Changes Effected by Law 5 9. Executor or Administrator Takes Benefits 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 Party 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 I 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 Aeency 25 32. Names of Parties in Body of Contract should Correspond with Signatures 6 33. Agents should be Duly Authorized to Contract 27 vii Viii CONTENTS. SECTION PAGB 34. Unauthorized Acts 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 L able for Blunders 28 37. Agent's Authority must Come from His Principal 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 Organizations as Parties 40 49. Subscribers to a Project 40 50. Second Party Not Named, but Determined by His Own Act 42 61. 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 55. 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 OF CONTRACTS. ESSENTIAL ELEMENTS OF 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 61 . 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 Thins 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 Term* in a Contract 62 70. Consideration Good in Part 63 CHAPTER III. LAW OF CONTRACTS. ESSENTIAL ELEMENTS OF A CONTRACT. The Subject-matter. The Act to be Performed or Thing to be Erected, Furnished, or Supplied. 71. Relation of the Subject-matter and the Consideration 65 CONTENTS. ix As Regards the Act to be 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 Influence Public Officers. 66* 74. Contracts for the Perversion of the Courts 67 75. The Undertaking Must Not be Contrary to Federal or State Laws, or in Dis- regard of Police Regulations or City Ordinances 6& 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 of Adulterated Goods, or of Intoxicating Liquors in Violation of Excise Laws Prohibiting Traffic in Them 7& 79. The Act must Not Require Either Party to Violate the Sabbath Laws, or to Ignore the Laws and Regulations of Society 70 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 70- 81. The Undertaking must Not Have for its Object the Creation of a Monopoly 71 82. Contracts Not to Bid or Compete 7 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 T. 74 87. Immoral Contracts 7T CHAPTER IV. LAW OP 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 7ft 90. There should Be No Misunderstanding 80 91. 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 83 93. What Is an 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 8a 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 of Frauds Contracts for the Sale of Goods, Materials, and Merchan- dise. 92 101. Contract for Goods to be Manufactured 92 102. What is a Sufficient Memorandum of a Sale 93 103. 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 95 X CONTEXTS. SECTION PAGE 106. Contracts for an Interest in Lauds 97 107. Special Agreements Relating to Lands 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 Answer for the Debts of Another 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 the 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 tiou 105 119. Injury Concealed by Fraud, so that Right of Action was Not Known 106 120. Bud 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 II. BIDS AND BIDDERS. CHAPTER VI THE RIGHTS AND LIABILITIES OF BIDDERS FOR PUBLIC WORK. The Advertisement. Instruction to Bidders and Forms for Proposals. Formalities, Requirements, 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 CONTENTS. xi SECTIONS PACK 142. The Legislature May Ratify Contracts 132 143. A Contractor 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 13(3 146. 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 . 13^ 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 149 154. 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, Plans, and Specifications 150 156. Contracts Must be Strictly According to Terms of Advertisement, Plans, 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 1(50. Works Whose Cost Exceeds a Certain Amount Within the Statute, Charter, or Ordinance 157 161. What Work Comes Within the Statute 15& 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 18-2. 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 192 187. In Absence of Agreement or Pledge, Owner may Exercise his Own Preference. 19$ 188. Implied Agreement to Remunerate Bidder for His Labor or to Award Con- tract to Lowest Bidder. . 194 CONTENTS. PART III. [ENGINEERS AND ARCHITECT'S EMPLOYMENT. CHAPTER VIII. EMPLOYMENT OR ENGAGEMENT OF ENGINEER OB ARCHITECT. Performance of Service, Term of Service, Dismissal, or Discharge, and Extra Work, SECTION PAGB 200. Contract of Employment 196 201. Term of Service 196 202. Dismissal or Discharge of an Employee 198 203. Willful Disobedience of Aijy Lawful Order of the Employer 198 204. Gross Moral Misconduct Pecuniary or Otherwise 199 205. Habitual Negligence, 01 Conduct Calculated to Injure Master's Business 200 206. Incompetence or Incapacity 201 207. Condonation of Employee s Offense 202 208. What Is a Discharge? 202 209. Duty of Discharged Employee to Seek Other Employment 203 210. No Recovery for Extra Work Unless so Agreed. 205 211. Employment of Engineer or Archil ct in a Professional Capacity 205 212. What Constitutes an Employment of an Engineer or Architect ? This is Often a Difficult Question 206 213. What Is a Performance of a Contract of Service ? 207 214. Recovery for Services Rendered 208 CHAPTER IX. PROPERTY OF ENGINEERS OR ARCHITECTS IN DESIGNS AND INVENTIONS. Ownership of Plans, Specifications, and Drawings. Corporeal and Incorporea u Property Rights 215. Ownership of Plans, Drawings, and Designs. , 213 216. Incorporeal Property in Architectural and Engineering Designs Copyright and Patent-right 214 217. Rights of a Purchaser to Incorporeal Creations . . 217 218. Copyright of Plans and Drawings 217 219. Rights of an Author, Inventor, or Designer when in the Employ of Another... 218 220. Things Made or Created Outside of Office Hours 220 221. Creations Made from Materials Collected while in Another's Service 220 222. New Creation Made from Materials Collected by Others 220 223. Employees Right to His Inventions 221 224. What Is Invention, and Who Is the Inventor ? 222 225o Instances of Invention between Employer and Employee 224 CHAPTER X. LIABILITY OF ENGINEER OR ARCHITECT AS A PROFESSIONAL MAN. Must be Competent, Skillful, and Exercise Due Care "226. Engineer's or Arciiitect's Employment Similar to that of Other Professional Men... 225 227. Undertaking of a Person Who Offers His Services in a Professional Capacity. 225 228. That the Employee Possesses Skill is Implied from the Undertaking to Act. . 226 229. Absolute Accuracy 01 Success Not a Test of Skill or Capacity of a Man in His Professional Capacity 226 CONTENTS. xiil SECTION PAGE 230. Determination of Skill Possessed or Want of Skill 227 281. Engineer's or Architect's Undertaking when He Accepts or Solicits an Engage- ment 227 232. Professional Man must Possess Ordinary Skill and Exercise Ordinary Care. . . . 228 233. Negligence or Failure to Exercise Reasonable Care and Diligence 228 234. Negligence on the Part of an Agent 229 235. Negligence or Want of Care and Skill of a Professional Man 229 236. Skill Required of Specialists 230 237. Skill and Care Required of Engineers or Architects Instances 230 238. Owner may Offset His Damages Against Sum Due Engineer or Architect for * Services 231 239. Architect or Engineer must Give Such Careful Superintendence and Inspec- tion as to Prevent the Contractor from Making Material Omissions and Variations 232 240. Engineer and Contractor or Architect and Builder Jointly and Severally Liable 334 241. Owner Not Linble for Misconduct of His Architect 234 242. Engineer and Architect are Liable to their Employer and to Nobody Else 236 243. Liability for Acts of Assistants 337 CHAPTER XI. LIABILITY OF ENGINEER OR ARCHITECT WHEN HIS FUNCTIONS ARE JUDICIAL OR DISCRETIONARY. 244. Not Liable for Many Acts or Omissions when His Functions Are Judicial 238 245. Attempts have been Made -to Discriminate between Judges in Court and Judi- cial Officers 239 246*. Engineer's or Architect's Judicial Status 239 247. Engineer or Architect must Not Act Fraudulently 241 248. Engineer is Liable to His Employer, when He may Not be Liable to Con- tractor 242 249. Engineer or Architect may Owe a Double Dnty to His Employer, viz., as an Arbitrator and a Professional Man 244 249. Engineer's or Architect's Knowledge Is the Employer's Knowledge 245 CHAPTER XII. LIABILITY OF AN ENGINEER OR ARCHITECT WHEN A PUBLIC OFFICER. 250. Position of a Public Officer 247 251. County Officers and Their Liability 248 252. County and Municipal Officers Compared 248 253. Liability of a Public Officers for the Acts of his Assistants 248 254. State Employees Held Liable for Negligence 249 255. Public Officers and Their Liability upon Contracts Executed for the State 250 256. Officer or Employee Is Responsible for His False Representations 251 257. Engineer's and Architect's Liability when Holding Office of Public Trust 251 258. A Ci y Engineer's Liability for Mistakes 251 259. Commissioners of Public Works and Their Liability 253 259a. Situation of Engineer or Architect in Injunction and Mandamus Proceedings Liability for Contempt. 253 CHAPTER XIII. COMPENSATION OF ENGINEERS AND ARCHITECTS. Protection of Lien and oilier Laws. Free Passes. 260. Architect's or Engineer's Compensation 257 261. Rights of Engineers and Architects to a Lien for Services 257 262. If Architect or Engineer Supervises and Directs Work He may Have a Lien in Some States 258 XIV CONTENTS. SECTION PAGE 263. Engineers' or Architects' Rights under the Stockholders' Liability Acts 2(52 264. Compensation for Injuries Received while Riding on a Free Pass 263 265. Passes are Usually Given for Some Consideration 264 266. Free Carriage, without an Agreement Waiving Damages for Gross Negli- gence 264 CHAPTER XIV. EMPLOYMENT OP AN ENGINEER OK ARCHITECT AS AN EXPERT WITNESS. The Consultation, Preparation, and Behavior in Court. Remuneration for His Services. 267. Expert Witness Treatment of the Subject 266 268. An Expert Should Take Time to Investigate and Decide before Giving an Opinion 266 269. Expert must have Regard for the Understanding and Knowledge of His Audience 267 270. Esteem in which Experts are Held by Bench and Bar 268 271. Biased and Warped Judgments are Not Confined to Professors of Science .... 269 272. Experts Are Champions of Their Clients as Well as Attorneys 270 273. Candid Opinions of Experts may be Had if They are Sought 270 274. It is the Duty of Every Citizen to Promote Justice 271 275. The Preparation Expert Witness should Not Only be Informed, but He must be Prepared to Convince Others 273 276. Use of Books by Expert Witness 37 3 277. Witness may Use a Book, Chart, or Prepared Memoranda to Refresh His Memory 274 278. Use of Written Memoranda and Copies Thereof ,270 279 Use of Maps, Plans, Photographs, and Models in Court 277 280. Use of Photographs as Evidence 277 281. Expert Witness should Fortify His Opinions with Authority and Undisputed Facts 279 282. Experts should Seek the Confidence and Re pect of the Court 279 283. Trial Court Determines the Privileges of an Expert Witness ^>80 284. Behavior of Expert Witness in Court When will Expert Testimony be Ad- mitted 281 285. Some Questions Held Not to Require Experts to Determine ^S2 x86. Expert cannot Determine Questions which the Jury are to Decide ^84 287. Hypothetical Questions may be Asked of an Expert Witness , 285 288. Witness Acquainted with Facts of Case ^86 289. Weight and Value of an Expert's Testimony is Determined by Jury 287 290. Expert Witness must Not Try to Determine Questions which Determination Is for the Court or Jury 288 291. Qualifications of an Expert Who may Be an Expert Witness 289 292. Witness may Employ Practical Illustrations and Experiments 294 292a. Judicial Notice 296 293. Right to Use Models and Make Tests Rests with Trial Court 297 294. An Expert's Advice to Fellow-Experts 298 ~95. Experts as Assistants in Examination of Witnesses by Attorneys 299 296. Compensation Reward for Services as an Expert Witness 2t9 297. Expert Witness in Civil and Criminal Cases Distinguished 301 298. If Expert Has Knowledge of Facts of Case, He must Testify 301 299. Expert's Knowledge, Experience, and Character may be Inquired Into 302 300. If Expert cannot Collect Extra Compensation, then no Extra Preparation can be Required 302 301. Legislation is Needed to Improve Expert Testimony 302 ENGINEEEING AND AKCHITECTTJRAL JUKISPBUDENCE. PART I. LA W OF CONTRACTS IN GENERAL. CHAPTER I. LAW OF CONTRACTS IN GENERAL. ESSENTIAL ELEMENTS OF A CONTRACT. LEGAL AND ILLEGAL CONTEACTS. 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 role 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. a quid pro quo. 3. A lawful subject-matter, whether it be a promise, au act, or a material object. 4. Mutuality: a mutual assent, a mutual under- standing, and a meeting of the minds of the parties. 1 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. 2 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 AGREEMENT, 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 f\ mere matter of taste with the draftsmen. 1 'if the contract be a written instrument void is equivalent to finding that there was it must be delivered. Leonardo. Kebler's no written contract at all. Rebman V. Adm'r (Ohio Sup.), 34 N. E. Rep. 659. San Gabriel Val. Land & Water Co. (Cal.), 8 A finding that a written contract was 30 Pac. Rep. 564. 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 01 company-' of the City of , County of , State. of , party of the second part." The parties of a contract are designated as parti/ 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 ,the Said Contractor, the Said Owner, the Said Board, City, Company, 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 or 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 REGARDS 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. 1 A person cannot contract with him- 1 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 footing peculiar to future time upon a contingent event. themselves. An advertisement offering a Notes payable to bearer, or to an indorser, reward is an offer only, and is not a con- may be inenlioned as such contracts, tract until accepted by the person who per- '2 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 3. a 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. 1 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. 2 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 AGREEMENT, 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 f\ mere matter of taste with the draftsmen. , , * "if 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 Sup.), 34 N. E. Rep. 659. San Gabriel Val. Land & Water Co. (Cal.), 8 A finding that a written contract was 30 Pac. Rep. 564. 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 ot company J of the City of , County 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 ,the Said Contractor, the Said Owner, the Said Board, City, Company, University, etc. This avoids confusion and the danger of the parties forgetting to which party lie 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 or the Engineer, it is customary and prudent to insert a clause explaining who is intended and included within ihe 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 ini 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 REGARDS 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. 1 A person cannot contract with him- 1 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 footing peculiar to future time upon a contingent event. themselves. An advertisement offering a Notes payable to bearer, or to an indorser, reward is an offer only, and is not a con- may be mentioned as such contracts, tract until accepted by the person who per- 4 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 6. self ;' and a promise to pay money to oneself is not a promissory note. 2 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. 8 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. 4 Notes or contracts made by several, jointly or severally, can- not, however, be avoided for this reason. 4 For the same reason it has been held that a partner cannot contract with his firm, and that two firms having a common partner could not incur liability by contract. 4 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. 5 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 firms 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. 7 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. 8 AVhen 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 4 Leake's Digest of Contracts 440. offered. 5 Moneypenny *. Hartland, 1 Car. i 1 2 Wall. 78, 36 Fed. Rep. 213. Payne 352. 5 Commonwealth v. Dallinger, 118 Muss. 6 Ames' Cases on Partnership, chap. vl. 439; other cases in Ames' Cases on BilU 7 Leake's Digest of Contracts 440. iind Notes 133. s 3 Amer. & Eng. Ency. Law 868. 3 Grey v. Ellison, 1 Giff. 433. 9 Leake's Digest of Contracts 442. 9.] LAW OF CONTRACTS. 5 " 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/' J 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. 2 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 payable 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. 3 So, too, the personal representative is liable on the con tract, although not named in the terms. 4 The executor or administrator has been held liable even when the heirs were named and the executors were not. 5 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. 6 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. 7 It is a presumption of law that parties to a simple contract intend to bind not only themselves but their personal representatives. 8 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 1 The representative may be mentioned 3 7 Amer. & Eng. Ency. Law 262. as in the form given in Soc. 4, page 3, 4 7 Amer. & Eng. Ency. Law 326. which is simpler in tnat it avoids the con- 5 7 Amer. & Eng. Ency. Law 327. stant repetition of the words " heirs, ex- 6 Crans v. Kans. Pac. R. Co., 131 Q. S. ecutors, administrator, or assigns " in the clxviii (1879). text of the contract. 7 7 Amer. & Eng. Ency. Law 327. * Pollock on Contracts 206. 8 2 Parsons on Contracts (6th ed ) 530. 6 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 10. works, and to recover their value 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. 1 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. 2 10. Contracts for Personal Skill of Contractor. Whether or not the executor or administrator of an estate can carry out 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. 3 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. 4 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. 6 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. 7 * 11. Executor Named in Contract. It is not necessary that 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. 8 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 Stellman 0. Northup, 109 N. Y. 473; Pol- Siboni v. Kirkman, 1 M. & W. 418. lock on Contracts 206; 126 N. Y. 45. As to what contracts will be considered 1 Leake's Digest of the Law of Contracts, personal, see Robinson v. Davidson, L. R. 1254. 6 Excb. 269, 274; Cooper v. Jarrnan, L. R. 2 Wentwortb v. Cock, 10 A. & E. 45. 3 Eq. Cas. 98; Dickinson c. Callaban, 19 3 Robinson v. Davidson, L. R. 6 Excb. Pa. St. 227. 269; and see Lloyd's Law of Building, 12. The contract of an author to write a book 4 Cooper v. Jarman, L. R. 3 Eq. 98; 7 is discharged by his death Marshall v. Amer. & Eng. Ency. of Law 326. Broad hurst (Eng.), 1 C. & J. 403. 5 Russell v. Bnckhout (Sup.), 34 N. Y. 7 Werner v. Humphreys, 2 M. & G. 853. Supp. 271, Dykunau, J., dissenting. 8 Quick v. Ludburrow, Bulstr. 30; 7 6 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. 1 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. 2 Hence the advis- ability of a contractor's making his executor or administrator a party to his contract. 8 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. 4 A contract for the employment of an agent by a partnership is dis- charged by the death of one of the partners. 5 Therefore the legal repre- sentatives 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. 6 For goods or materials purchased for the benefit of the estate he incurs a personal liability. 6 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 1 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 2 Marshall v. Broadhurst, 1 C. & J. 403. obligations. 4 Gray's Cases 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 nants 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- hands 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 that 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 ! by which it is probable that it became the 4 7 Amer. & Eng. Ency. Law 262 and custom to draw construction contracts ns 326. specialties. In the United States geuer- b 7 Amer. & Eng. Ency. Law 326. ally, a man's property, real and personal, * 7 Amer. & Eug. Ency. Law 299. is liable for his debts, and the distinc- 8 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 13. administrator for a tort committed by the deceased person whom he might represent. The 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. 1 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. 3 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. 4 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. 5 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 such assent is admissible. 8 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. 7 The introduction of the word assigns in the instrument may be e,vi- 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 agreement. 8 'Jenkins v. Bennett (S. C.), 18 S. E. McCarty, 45 Mo. 106; Bethlehem v. Armis, Rep. 929. 40 N. H. 34; Haskell v. Blair, 3 Gush. 2 7 Amer. & Eng. Ency. Law 333. (Mass.) 534. 3 29 Amer. & Eng. Ency. Law 978. 6 Crawford v. Wolf. 29 Iowa 567 [1870]. J Griggsfl. Landis, 19 N. J. Eq. 350 [1868]. 7 Wentworth . Palmer, 31 Cal. 240 [1886]. Excli. 952. 2 1 Amer. & Eng. Ency. Law 832. 7 Chambers v. Lancaster (Sup.), 38 N. Y. 3 Mills v. Allen, 10 Sup. Ct. Rep. 413. Supn. 253: Dirimple v. State Bank (Wis ), 4 Board of Education v Duquesnet (N. 65 N. W. Rep. 501. J. Ch.), 24 Atl. Rep. 922; Union Pac. Rv. 8 Perkins v. Butler Co. (Neb.), 62 N. W. Co. v. Douglas Co. Bank (Neb.), 60 N. W. Rep. 308; Tracy v. Waters (Mass.), 39 N. Rep. 886. E. Rep. 190. 5 1 Amer. & Eng. Ency. Law 840. 9 Milwaukee Mechanics lus. 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, 10 Jenckes v. Jenckes (Ind. Sup.), 44 N. -seeRenton v. Monuier, 77 Cal. 449. E. Rep 632. 6 Gould v. Bourgeois, 51 N. J. Law 361 *See Sees. 132-200. 17.] LAW OF CONTRACTS. 11 .as collateral security does not defeat his right to perfect a mechanic's lien therefor. 1 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. 2 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. 3 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. 4 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. 5 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. 6 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, 7 especially when the city or county is required by statute to secure its laborers and material men by a bond that the contractor will pay them. 8 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. 9 It has frequently 1 Ittner D. Hughes (Mo. Sup.), 34 S. W. 'Lymanu. Lincoln (Neb.), 57 N. W. Ren. Rep. 1110. 531; Kauffman v. Cooper (Neb.). 65 N. W. 2 Ropes v. Arnold, 30 N. Y. Supp. 997. Rep. 796 ; St. Louis v. Von Pu-hl (Mo.), 34 3 French . Vix (N. Y. App.), 37 N. E. S. W. Rep. 843. Rep. 612. Bd. of Ed. v. Grant (Mich.), 64 N. W. 4 Old Dom. Gran. Co. v. District of Co- Rep. 1050; Gilmore*). Westerman (Wash.), lumbia, 20 Ct. of Claims 127; Sayre Lumb. 43 Pac. Rep. 345 ; Wilson v. Webber (Sup.), o. v. Union Bank (Colo. App.), 41 Pac. 36 N. Y. Supp. 550; but see contra, Rep. 844; Lawrence v. United States (C. Buffalo Cement Co v. McNaughton (Sup .), ), 71 Fed. Rep. 228. 35 N. Y. Sunp. 45 ; see 17 Amer. & En. Brandt (Minn.), 55 N. W. s Consaul v. Sheldon (Neb.), 52 N. W. Hep. 62. Rep. 1104. 2 Judah v. Zimmerman, 22 lad. 388. ' Henricus 0. Englert, supra. 3 Evans v. Gradeii (Mo.), 28 S. W. Rep. 10 Brooks-0. Wright (Mass.), 13 Allen 72; 439. Mil er v. Stewart, 4 Wash. C C. 26. 4 Beers v. Stvimple (Mo. App.), 22 S. W. n De Mattos v. Jordan (Wash.), 46 Pac. Rep. 620. Rep. 402. 5 Lancaster v Barrett, 1 Pa. Sup Ct. 12 Hayden0 Cook, 34 Neb. 670; Moore v. Rep. 9. Fountain (Miss.), 8 So. Rep. 509 [1891]; 6 Barclay v. Alsip (Pa. Sup.), 24 Atl. Smith v. Molleson (N. Y. App.), 42 N. Rep. 1067. E. Rep. 669; McLennan v. Wellington, 1 Henricus *. Euglert (N. Y. App.), 33 48 Kans. 756. 2*. 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. 1 The changes must be reasonable, and not materially increase the cost of the structure beyond the contract price. 2 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. 3 A change from stone window-lintels to railroad iron has been held not to affect the obligation of the surety, 4 nor a change of the fronting of a building when the sureties had never seen the original plans. 5 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. 6 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. 7 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. 8 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, 8 nor -does the assignment of one contractor to the other joint contractor without notice to the surety release him. 10 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. 11 'Truckee Lodge tj. Wood, 14 Nev. 293. App.), 42 N. E. Rep. 669. 2 Consaul v. Sheldon (Neb ), 52 N. W. 7 Beers v. Strimple (Mo.), 22 S. W. Rep. Hep. 1104. 620. 3 McLennaD v. Wellington (Kan.), 30 8 Beharrell . Quimby (Mass.), 39 N. E. Pac. Rep. 183. Rep. 407. "Howard Co. v. Baker (Mo.), 924 S. W. 9 Kauffman v. Cooper (Neb.), 65 N. W. Hep. 200. Rep. 796. 6 Dorsey v. McGee, 30 Neb. 657. 10 Abbott v. Morrissette, 46 Minn. 10. Consaul u. Sheldon (Neb.), 52 N. W. Steele v. Buck, 61 Ills. 343 11871]. 1104; semble, Smith v. Molleson (N. Y. 18 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 23, PERSONS 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. 1 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. 2 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 to 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. 2 Story on Contracts, chap. 2. 25.] LAW OF CONTRACTS. W 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." 2 Though an infant may not contract for himself, he may act as agent for {mother, and his acts are as binding upon the principal as an adult's. 3 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. 4 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. 5 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. 7 " Mere weakness of mind is no ground for incapacity, and does not afford 1 A later doctrine exists that all contracts 4 Bobbins v. Mount, 33 How. Pr. 24 [1867], of an infant are voidable which relieves the 5 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]. fant. 10 Amer. & Eng. Ency. Law 628 'Hitters' Appeal, 9 P. F. Sm. 9: Caulkins etseq< 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 Texas 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 3 1 Amer. & Eng. Ency. Law 334. on Contracts, p. 419, and notes. 20 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. 1 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, ivhich 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. 2 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. 8 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 1 Harmon . Harmon (Cir. Ct.), 51 Fed. & Eng. Ency. Law (subject*). Pollock on Rep. 113. Contracts, Leake's Digest of Law of Con- 2 S^Sandsfl. Potter (111. Sup.), 46 N. E. tracts, and other standard works on the Hep. 282. subject. 2 See Story on Contracts, Part 2; 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 beent appointed, are wholly incapacitated from contracting, and contracts entered! into by them are void. 1 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. 9 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 binding. 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. 8 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. 1 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 andi all of her business, and it has been held that she might contract with hinn 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 wa& 1 11 Amer. & Eng. Ency. Law 134. and cases cited. 'Ricketts v. Jolliff, 62 Miss. 440 [1884]. 4 Hendricks v. Isaacs, 117 N. Y. 411 s Kueil v. Egleston, 140 Mass. 202 [1885J, [18891. 22 ENGINEERING 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. 1 A contract between a husband and wife who had parted has been held not void. 2 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. She may contract for the erection of buildings upon her prop- erty. 8 A married woman may contract as an agent of hor husband or as .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 assumes no responsi- bility herself. 27. Other Conditions Affecting 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 1 Fairbanks v. Mothersell, 60 Barb. 406 2 Duryea v. Bliven, 122 N. Y. 567. [1871]. 3 Greenleaf 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. 1 28. Either Party Under Duress. Neither party to a contract should have been under duress of person or goods, 2 nor under great excitement, or fear, or compulsion when the contract was made e s 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. 4 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. 5 The imprisonment, threatened or feared, must have operated on the mind so far as to deprive the contract of the character of a voluntary act. 8 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. 7 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. 8 Threats of lawful arrest of a person justly amenable to criminal prosecution without circum- stances of oppression or frand 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. " 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 fhrough the Commissioners 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 1 McCorkle v. Goldsmith, 1 Mo. App. All. Rep. 8. Rep. 172. 4 Adams v. Stringer, 78 Ind. 175 [1881]. 2 6 Amer. & Eng. Ency. Law. pp. 57, 92, 6 Stover v. Mitchell, 45 111. 213 [18671. 93 ; Miller o. Miller, 68 Pa. St. 486 [1871] ; 6 Berrett v. Weber, 125 N. Y. 18 [1890]. Adams v. Scheffer (Col.), 17 Pac. Rep. 21 ; 7 McCormick . Dalton (Kan.), 35 Pac. Jordan v. Elliott (Pa.), 15 Cent. L. J. 232 Rep. 1113. [1882]. "City Bank . Kusworm (Wis.), 59 3 6 Amer. & Eng. Ency. Law 57-59 ; N. W. Rep. 564. McCarthy v. Hampton Bldg. Assn., 61 Iowa 9 Gregor v. Hyde (C. C. A.), 62 Fed. Rep. 287 ; Lomerson v. Johnson (N. J.), 13 107. 24 ENGINEERING AND ARCHITECTURAL 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 C. [the contractor] and E. [the engineer] on the part of A [the company], the said E. hereby agrees signed E," E. was held liable. 1 In another case, the contract read : " On behalf of B. we hereby consent money to be paid to A. arid E.; E. to supervise certain work. [Signed, A. and E.]" A. and E. were held liable because A. and E. were to receive payment. 3 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. 3 The tendency seems to be to get away from these precedents, and to interpret the contract, according to the intention of the parties, 4 but they are established decisions and, may be followed. 6 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 y will 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. 9 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 1 Norton v. Herron, Ryan & Moody 229. ' Haskell v. Cornish, 13 Cal. 47; Quig- 2 Tanner v. Christian, 4 E. & B 590. ley v. De Hass, 82 Pa. St. 267 ; see also 3 Paice V. Walker, L. R 5 Excli. 173; Hutchisons. Eaton, 13 Q B. D. 861. Stone v. Wood, 7 Cowen 453. 6 Paice . Walker, L. R. 5 Excti. 173 757. 4 Deering v. Thorn (Minn.), 13 Rep. [1870]; nnd see Fairlee v. Fentou, L. R. 5 17. 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. 1 If, on a note, the name of the corporation be signed followed by the- name of an individual with "Prest." after it, though without the word " per " between the names, it is the promisory note of the corporation and not a joint note. a If the president had signed his own name and written " Prest. " after the signature, it would not have relieved him from personal liability. 3 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. 4 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. 5 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. 8 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. 8 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. 9 Evidence that there was a general understanding 1 Hough v. Manzanos, 4 Exch. Div. 104; 8 K E Rep. 586. note, and also Mid Co. Sayer t>. Nicnols, 5 Cal. 487; see Hill v. Bk. v. Hirsh Bros., 4 N. Y Supp. 385 Miller, 76 N. Y. 32 [1879] ; Haskell . [1889]. Cornish, 13 Cal. 47 [1859] Sharp v. Smith, 5 Deering 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]: Fullam Minn. 214 v. West Brookfield, 9 Allen (Mass.) 1, Hewese. Andrews (Colo ), 20 Pac Rep " Committee " Sperry v. Farming, 80 111. 338 p889]. 371 [1875], "Trustee"- Pershing v. In- 7 Randall v. Van Vechten, 19 Johns. dustrial Co. (Minn.), 59 N W. R p. 1084; (K Y.) 60 see 29 Amer. & Eng. Ency. Law 863, 8 Brady t> NaglefTex. Civ. App.) 29 S. note. w. 943; Burke v. Frye (Neb ). 62 N. W. 2 Reeve v. Bank (N. J.), 23 Alt. Rep. Rep. 476; Fullerton v MeLaudilin (Sup), 853. 24 N. Y. Supp 280; Dowden v. Crvder 3 Heffner . Brownell, 31 K W. Rep. (N J ), 26 Atl. Ren. 9M 947 [1887 J. 9 RichaH^n Co. v. School Dist. 4 See collection of cases and references in 64 N. W. Rep. 218. 26 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 32. among business men that an agency existed has been held admissible, 1 and the agency may be proven by letters and telegrams from the principal. 2 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. 3 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 " Chief 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; 6 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. 6 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. 7 1 Gregory Hu'son (Tex.), 30 S.W. Rep. v. Garnish, 13 Cal. 47 [1889] ; Dickerman 489. v. Ashton, 21 Minn 538 [1875] 2 Farrell v. Edwards (S. D.), 66 N. W. 6 See Whitfordfl. Laidler, 94 N. Y. 145 ; Rep. 812 Appleton v. Binks, 5 East 148; Townsend As to the prop r manner for corpora- . Hubbard, 4 Hill, 351; McCauley v. tion officers to sign and indorse negotiable .Tennv. 5 Houston (Del.) 132. instruments and the liabilities created 6 Mott v. Danville Seminary (111.), 21 thereby, see 39 N. W. Rep. 640, note, and N. E Rep. 927 [1889]. 3 N. Y. Supp. 771, note. 7 Knight . Clark (N. J.), 2 Atl. Rep 780 3 Mott v. Danville Seminary (111.), 21 [1885]; Huthsing v. Bausquet, 12 The Re- N. E. Rep. 927. porter 225; but see Wing v. Glick, 46 Iowa 4 Snxton i). Texas, S. F. & N. R. Co. 473 [1881]. (N. M.), 16 Pac. Rep. 851 [1888] ; Haskell 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. 1 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. 2 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. 3 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 by piiblic officers, or officers and agents of public corporations, must be strictly within the authority dele- gated by the act of incorporations. 4 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. 5 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. 5 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. 6 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- i Davis D. The City, 3 Phila. 374 [1859] ; 4 Wallace . Mayor of San Jose, 29 Cal. 1 Dillon Munic. Corp. (Ed 1873). 372; 181. Baltimore v. Reynolds, 20-Md. 1; Huniew. 5 D?ily v. San Francisco, 13 Pac. Rep. United States. 132 U. S. Rpp. 406; Wells 321; Hume t>. United States, 132 U. S. v. Mich. Mut. L. Ins. Co (W.Va.), 23 S. Rep. 406, and see Dhrew v. Altoona, 121 E Rep. 527; Pearce *>. Madison & J. R. Pa. St. 411; McDonald v. Mayor, 68 N. Co , 21 How. (U S.) 441; Smith v. Co-op- Y. 27; Smith v. City of Newburg, 77 N. erative D. Ass'n. 12 Daly (N. Y.) 304; Lit- Y. 136: Davis .City, 3 Phila. 374; Miller, tie v Kerr (N. J.), 14 All. Rep. 613. . Goodwin, 70 111. 659; Batemana. Mayor, s Walker v. Wilmington, C. & 1ST R. Co. 3 H. & N. 323. lot Mfg. Co. v. Marsh. 1 Gush. (Mass.) 10 So. Rep. 304. 507: Lyndon M. Co v. Lyndon Lit. Inst., 8 City of Chicago v. Fraser, 60 111. App, 63 Vt. 581. 404. 5 Dobson v. More, 62 111. App. 435. 9 Goddard v. Harpswell, 88 Me. 228: but 6 See 4 Amer. & Eng. Ency. Law 359; see Damon . Granby, 2 Pick. (Mass.) 345. 13 S. W. Rep. 1188; Little v. Kerr (N. * See Sec. 35, supra. \ See Sees. 29-39, supra. 40.] LAW OF CONTRACTS. 31 arise which make such acts very common. Such orders or instructions may be adopted, ratified, and authorized by the body when they become binding, and recovery for work done under them may be had. 1 A committee appointed by a town to take charge of the erection of a building are agents of the town, and 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 witness. 2 * 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. 3 The 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. 4 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. 5 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. 8 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 whole 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. 7 The one who attempts to show irregularities must prove that the 1 Albany City Natl. Bk. v. Albany, 92 N. 5 ,Valley Tp. v. King Iron Edge. Co. Y. 363 [1883]. (Kan. App. ), 45 Pac. Rep. 660. 8 Shea u. Town of Milford (Mass.), 14 Howard c. Oshkosh, 33 Wis. 309 [18731. N. E, Rep. 764 [1888]. ' Bohall i>. Neiwall (la.), 39 N. W. Rep. 3 Matthewson v. Grand Rapids (Mich.), 217 [1888]; also Jenkins v. Stetler (Ind.), a 50 N. W. Rep. 651. N. E. Rep. 7 [1889]; N. Chicago St. R. 4 Pine Bluff Water & Light Co. v. Sewer Co. v. Cheetham, 58 111. App. 318. District No. 1 (Ark.), 19 S. W. Rep. 576. * See Sec. 48. 32 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 41. public officers did not do their duty. 1 Contracts of public corporations, made through their officers without authority of law, are void, and the corporation may successfully interpose the plea of ultra vires, setting up as a defense its own want of power, under its charter or constituent statute, to enter into the contract. 2 Where one has contracted w^th 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. 3 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 o/ 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 f ollowing 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. 4 1 Hellman 0. Shoulters (Gal.), 44 Pac. 3 Fresno Canal & Irrigation Co. v. War- Hep. 915. ner (Gal.), 14 Pac. Rep. 37. 2 Miller v. Goodwin, 70 111. 659 [1873] ; 4 Gilbert v. United States, 1 Ct. of Claims accord Ryan c. Lynch, 68 111. 160; Byrne 28 [1863]; Lord v. Thomas, 64 N. Y. 107. 35. 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, or 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. 1 Such a contract may be ratified by the stockholders and they may insist upon the advantages, or they may disaffirm, 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. 3 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. 3 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. s 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. 6 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. 7 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, 8 1 Portv. Russel, 36 Ind. 60; Covington, 6 West . Berry (Ga.\ 25 S. E. Rep. 508; etc.. R. Co. v. Bowler, 9 Bush 468; Euro- but see Spearman . Colgan App. 322 [1877]; State v. Atlantic City (Gal.). 44 Pac. Rep. 1081. (N. J.). 9 Atl. Rep 759 [1887]. *Schnrr v. N Y. &B Sub. Invest, Co. 8 Turmey v. Bridgeport (Conn.), 12 Atl. (Com. PI.). 18 N. Y. Supp. 454; 16 N. Y. Rep. 520; Dhrew v. Altoona (Pa.), 15 Atl. Supp. 210. affirmed. Rep. 636 'Bostwick 0. Chapman, 60 Conn. 551; 9 Atlantic Ci'y W. W Co. . Reed CN". and see Cunningham v. Massena Sp. R. J.), 15 Atl. Rep. 10; Culburtson . Fulton Co. (Sup.), 63 Hun (K Y.) 439, 18 N. Y. (111.), 18 N. E. Rep. 781. Sunp 600 10 Culburtson v. Fulton (111.), 18 N. E. *Knowies v. Sandercock (Cal.), 40 Pac. Rep. 781 : Turmey v. Bridgeport (Conn.), Rep 1047 12 Atl. Rep. 520; Kingsley v Brooklyn, 78 'Newport v. Batesville & B Ry. Co. N. Y. 200 [1879] ; Boston El ec. Lt. Co. v. (Ark.). 24 S. W. Rep. 427. Cambridge (Mass.), 39 N. E. Rep. 787; Sceerv v. Springfield, 112 Ma?s. 512 Lamar Water Company v. City of Lamar F18731; see Prairie Lodge v. Smith, 58 Miss. (Mo.), 26 S. W. Rep. 1025 ; Georgetown 301 W. Co. v. Central T. H. Co. (Ky.), 34 S. 7 App. of City of Erie, 91 Pa. St. 398 W. Rep. 435. [1879]; Soule v. Seattle (Wash.), 33 Pac. 45.] LAW OF CONTRACTS. 37 When a city charter provides that all contracts shall be countersigned by the comptroller, 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. 1 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. 2 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. 3 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. 4 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. 5 45. Appropriation Must Not be Exceeded. The same law holds when the amount of an appropriation fora specific job is limited; the cost of the work, including extras, must not exceed the amount of the appropriation. If it does, the city or town is not liable for the excess over and above the appropria- tion. 8 * 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 equal 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. 7 A con- tract for twenty years, or for an indefinite period, cannot be sustained as a 'City of Superior v. Morton, 63 Fed. Rep. 59 N. W. Rep. 513 ; Crampton v. Varua R. 357; Holmes v. Avondale, 11 Ohio Cir. Ct. Co., L. R. 7 Ch. 568; Keating v. Kansas R 430. City, 84 Mo. 415 ; Perkinson v. St. Louis, 2 Barber Asphalt Paving Co. v. Harris- 4 Mo. App. 322 [1877]; Turmey v. Bridge- burg, 62 Fed. Rep. 565: see also Connelly port (Conn.), 12 Atl. Rep. 520. v. San Francisco (Gal.). 33 Pae, Rep. 1109. 6 Turmev c. Bridgeport (Conn.), 12 Atl. 3 Little v. Portland (Oreg.), 37 Pac. Rep. Rep. 520 [1888] ; Nelson v. Mayor, 63 N. 911 ; and see Soule v. Seattle (Wash.), 33 Y. 535 [1876]; see also Galveston v. Devlin Pac. Hep. 384. (Tex.), 19 S. W. Rep. 395; Kingsley v. 4 L'imar Water Co. v. Lamar (Mo.), 26 S. Brooklyn, 78 N. Y. 200 [1879]. W. Rep. 1025. ' Town of Westminster t>. Willard (Vt.), 5 Gutta Percha Co. v. Ogalalla (Neb.), 26 Atl. Rep. 952. *8ee Sec. 44, supra. 40 ENGINEERING 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. a Changes and alterations imposing a greater liability are void, and pay therefor cannot be collected. 3 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 resourqes 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 who engage in an enterprise are liable for the debts they contract, and all who assent to the undertaking or who sub- sequently ratif} r it are included in such liability. 4 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. 6 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. 6 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. 7 In dealing with incorporated religious associations special cau- tion should be exercised, for in several states they cannot be sued. 8 49. Subscribers to a Project. It has been held that an association 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- 1 Turmey . Town of Bridgeport (Co n.), 4 Lewis t>. Tilton, 64 Iowa'220 [18841. 12 Atl. Rep. 520. 'Fredenhall . Taylor, 23 Wis. 538; 5 Turmey v. Town of Bridgeport (Conn.), Landiskowski . Lark (Mich.), 66 N. W. 12 Atl. R"p. 520 ; Richardson 9. Grant Co., Rep. 371. 27 Fed. Rep. 495. 'Gutherless . Ripley (Iowa), 67 N. W 8 King v. Mahaska Co. (Iowa), 39 N. W. Rep. 109. Rep. 636 [1888] ; but see Shea v. Town of 7 Davis v. Shafer, 50 Fed. Rep 764. Milford (Mass.), 14 N. E. Rep. 764 [1888]. 8 29 Amer. & Eng. Eucy. Law 864. 49.] LAW OF CONTRACTS. 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. 1 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. 2 The signer* of a subscription paper in the ordinary form are liable severally, and not jointly. 3 Each subscriber is liable for the amount of his subscription, and in no way responsible for the payment of the sums subscribed by others. 4 Under a contract between several farmers and a construction company to build a factory, which containe 1 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. 5 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. 8 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. 6 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 all the subscribers jointly, but should proceed against those subscribers who are in default, or at least his declaration should allege certain subscribers in default. 8 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 9 unless it can be shown that the corporation adopted the contract of its promoters. 10 The payee named in the subscription may maintain an action, as can any- 1 Holmes v. Higgins, 1 B. & Caldwell 6 Davis v. Hendrix, 1 Mo. App. Rep. 41. 74 [1822]. 7 Davis v. Campbell (la.), 61 N. W. Rep. 2 Parsons Partnership, 46-7 ; Shibley v. 1053. Angel, 37 N. Y. 626 [1868J ; Fuller v. 8 Davis v. McMillan (Ind. App.), 41 N* Rome, 57 N. Y. 23 [1874]. E. Rep. 851. 8 Davis 0. McMillan (Ind. App.), 41 N. Davis v. Ravenna C. Co. (Neb.), 67 N. E. Rep. 851. W. Rep. 436; semble Clayton v. Newton, 4 24 Amer. & Eng. Eucy. Law 335 ; Davis Academy, 95 N. Car. 298 . Ravenna C. Co. (Neb.), 67 N. W. Rep. 10 Pittsburg & T. C. Co. v. Quintrell 436. (TVim.). 20 S W. Rep. 248 ; Weatherford* 5 Davis, etc., Manufg. Co. v. Jones (C. etc., R. Co. . Granger (Tex.1 22 S. W. C. A.), 66 Fed. Rep. 124; Davis Co. v. Rep. 70. McKiuney (Ind. App.), 38 N. E. Rep. 1093. 42 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 50. body selected to receive the money in the manner required by the terms of the paper. 1 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 the association. 2 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 who builds in accordance with the specifications of the paper. 3 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. 4 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. 6 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. 8 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, 7 or that the contract was to be let to the lowest bidder, 8 or that the structure was to be completed by a certain date. 9 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 1 24 Araer. & Eng. Ency. Law 339. 'Gerner v. Church (Neb.), 62 N. W. 2 24 Amer. & Eng. Ency. Law, 339, 340. Rep. 51. 8 Cooper v. McCrimmin, 33 Tex. 383. 8 Cooper v. McCrimmin, 33 Tex. 387. 4 Wilcox v. Arnold (Mass.), 39 N. E. 9 Millers. Preston, 4 N. Mex. 314; and Rep. 414. see McCormack v. Reece, 8 Green (la.) 6 Davis v. Johnson, 49 Mo. App. 240. 591. 6 24 Amer. & Eng. Ency. Law 341. * See Sees. 122-131, infra. 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. 1 In an act which declared that a board of public works " may " advertise for proposals and the contract be given to the lowefc bidder the court declared that the word "may" must be construed to mean "shall."- 9 The illegality of the contract may be asserted by any party or interest. 3 When it was left discretionary with commissioners to employ their own labor and purchase their own materials and construct waterworks, or they 1 Sedgewick on Const, and Stat. Law Pae. Rep. 693. 368-378; Henderson v. United States Ct. of 3 Knapp v. Swany,56Mich 345 ; Dillon's Claims, Dec. Term, 1868, per Casey, C.J., Munic. Corps, 382; Green's Brice's Ultra pp. 75-83. Vires 43; Elmira Gas Co. v. Elmira, 2 Alb. 9 McB ian . Grand Rapids, 56 Mich. 95; L. J. 392; Randolph Co. v. Jones, 1 Breese and see Santa Cruz Co. v. Heaton (Gal.), 38 (111.) 103. 44 ENGINEERING AND ARCHITECTURAL 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 strictly as provided by law, and material deviations from the methods imposed rendered the contract void and the contractor without remedy. 1 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. 2 * 52. No Eecovery 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 suffice to render the contract void and to 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. 3 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 see 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. 4 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; 6 but where there exist legal restrictions which disable a corporation from agreeing in 1 Dickinson . City of Poughkeepsie, 75 96 U. S. 691 [1877]; Nash v. St. Paul, 11 N. Y. 65. Minn. 174 [1866]; Burrell v. Boston 2 Davi^on v. Gill, 1 East 64-71; People v. (Mass ), 2 Clifford 590 [1867]. Allen, 6 Wend. 486; Briggs v. Georgia, 15 * Springfield M. Co. . Lane Co., 5 Oreg. Vern 72. 265. 3 Whiteside v. United States, 93 U. S. 5 Cases collected, 29 Amer. & Eng. Ency. 247-257 [1876]; Hawkins v. United States, Law 864. * See Chap. VI, Sec. 138, infra. [ 53. LAW OF CONTRACTS. 45 express terms to pay money the law will not imply any such agreement against the corporation. 1 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. 2 * No implied contract can be inferred from the fact that the structure is subsequently used by the public. 3 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. 4 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. 6 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- 1 Brady v. The Mayor, 2 Bosworth 173; Pratt v. Swan ton, 15 Vt. 147; Murphy v. Zottmanv. San Francisco, 20 Gal. 102-105; Albina (Oreg.), 29 Pac. Rep. 355 [1892]. Springfield Milling Co. v. Lane Co., 5 Welson v. School District, 32 N. H. 118; 1 Oregon 265 [1874]; Berlin Iron Bridge Co. Dill. Mun. Corp., 464; many cases in v. San Antonio, 62 Fed. Rep. 882. 15 Amer. & Eng. Ency. Law 1084-5. 2 Bare v. Village of G.. 72 KY. 463-472; 4 McBrian v. Grand Rapids, 56 Mich. 95. McBrian v. Grand Rapids, 56 Mich. 95. 5 Parr v. Village of Greenbush, 112 N". 3 Taft v. Montague, 14 Mass. 281, a Y. 246 [1889]; Brady . Mayor of New streeti; McDonald v. Mayor, 68 K Y. 23; York, 20 N.Y. 317-318; McBrian v. Grand Davis v. School District, 24 Me. 349; Rapids, 56 Mich. 95. * See Sec. 43 and Sees. 136-140, infra. 46 ENGINEERING 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. 3 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. 3 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 81.62-J 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 times 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. 3 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- 1 McBrian v. Grand Rapids, 56 Mich. 95. * In re Anderson, 109 N. Y. 554. 2 Dickinson v. City of P., 75 N. Y. 65. * See Cha . VI, Sees. 136-150, infra. \ See Sees. 132-199, infra. 54.] LAW OF CONTRACTS. 47 gation, and that no tests whatever were made before letting the work to' ascertain the quantities of rock and earth respectively, the estimate is uot 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 bona fide 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. 1 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. 2 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. 3 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 1 In re Anderson, 109 N. Y. 554. 8 Accord McMullen v. Hoffman (C. C.), 9 Reilly v. Mayor, etc., of N. Y., Ill N. 75 Fed. Rep. 547. Y. 473. 48 ENGINEERING 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. 1 55. Precautions to be Taken by Contractors with Regard to Parties and Their Powers. In conclusion it is submitted that when a contract is made and entered into " by and through commissioners or boards of public works, 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 the 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 in 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. 57. Residence of Parties Place Where Contract is Executed. "By and betiveen 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 1 Matter of N. Y. P. E. P. S., 75 N. Y. 324 [1878]. * See Sec. 29, supra. 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, 1 and the validity of an assign- ment for the benefit of creditors is tested by the law of the assignor's domicile. 11 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. 3 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, then 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 place 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. 4 If no place of performance is designated in the con tract, or it may be performed anywhere, it will be governed oy the law of the place where it was made. 5 A contract made in one state to be per- formed partly in that state and partly in other states will be governed by the law of the place where made ; 8 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. 7 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. 6 3 Amer. & Eng. Ency. Law 544, 561-2 ; 760 [1883] ; Spearman v. Ward, 8 All. Bauk v. Hall (Pa.), 24 Atl. Rep. 665 ; ao Rep. 430 ; 3 Amer. & Eng. Ency. Law cord Leake's Digest of the Law of Con- 573. tracts 207 ; Cartwright v. Railroad Co. 2 3 Amer. & Eng. Ency. Law 573. (Vt.), 9 Atl. Rep. 370 [1887] 3 3 Amer. & Eng. Ency. Law 574. . 6 3 Amer. & Eng. Ency. Law 560. 4 Brown v. Amer. Finance Co., 31 Fed. ' Bnrder v. Carnie, 44 N. J. Law 208; Rep. 516 ; West. Un. Tel. Co. . Eubank Thurman v Kyle, 71 Ga. 628. (Ky.), 38 S. W. Rep. 1068. 50 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 58 interpretation would be different according to the law of the place when* the contract was executed. l 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 everywhere else. 2 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. 3 A contract that is valid when made is not affected by a change in the public policy of the state; 4 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. 6 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, 6 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. 8 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. 9 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. 10 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. & Eng. Ency. Law 561. & St. P Ry. Co. (C. C.), 62 Fed. Rep. 904. 2 Winter . Baker, 50 Barb. 432 [1867] ; 6 3 Amer. & Eng. Ency. Law 575. 3 Amer. & Eng. Ency. Law 552-3. 7 3 Amer. & Eng. Eucy. Law 581-2. 3 3 Amer. & Eng. Ency. Law 554 ; Union 8 3 Amer. & Eng. Ency. Law 583-4. See Locomo. Exp. Co. v. Erie Ry. Co., 37 N. J. other cases cited. Law 23 [1873]. 9 Overt on v. Bolton, 9 Heiskell 762 4 Stephens v. Southern Pac. Co. (Cal.), 41 [1872]. Pac. Rep. 783. I0 Sell uenf eld t v. Junkerman, 20 Fed. 5 Hartford Fire Ins. Co. v. Chicago, M. Rep 357 [1884]. 59.] LAW OF CONTRACTS. 51 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 in the following phrase: "This day of in the year " Every 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. 1 It has therefore frequently been held that a deed or bond or note signed on Sunday, 2 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. 3 The same has been held of other contracts in writing, as an order for goods 4 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. 6 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 were completed on a week-day. 7 On the other hand a proposition of purchase and sale made on a week-day, but completed and delivered on Sunday, is void. 8 If a contract must 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. 9 Under such a law it would seem legally proper for the party who could not 'McFarland v. Sikes (Conn.), 3 N. E. 6 Foster v. Wor ten, 67 Miss. 540; Moseley Rep. 252. v. Van Hoser, 6 Lea (Tenn.) 286. 8 24 Amer. & Eng. Ency. Law 555, 566, 7 Cases in 24 Amer. & Eng. Ency. Law and cases cited. 566. 3 24 Amer. & Eng. Ency. Law 555, 8 Smith . Foster, 41 N. H. 220. note. "Bishop on Contracts (Enlg. ed.) 544; 4 Cameron v. Peck 37 Conn. 556. Davis v. Barger, 57 Ind. 54; and other cases 'Behan v. Ohio, 75 Tex. 87. cited in 24 Amer. & Eng. Ency. Law 566. 52 ENGINEERING AND ARCHITECTURAL 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, may be ratified on some succeeding week-day; 1 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. 8 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 irom the penalty imposed by the Sunday law. 3 Repairs to a mill, 4 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. 5 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. 6 One is not safe in undertaking any work on Sunday that can as well be done on a week-day. T 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. 8 If one contract to servo another in Alaska, and to his whole time, attention, capacity, and energy to the business, and to as directed, at all times, at any place, Sundays and holidays not ex- 1 24 Amer. & Eng. Ency. Law 561, 570, 6 Oleson v. City of Plattsmouth (Neb.), 571- 52 N. W. Rep. 848. *Parmalee v. Wilks, 22 Barb. (N. Y.) 'Bucher v. Fitchburg R. Co , 131 Mass. 540. 156, 125 TJ. S. 555; Holcomb D. Danby, 51 3 Com. v. Funk, 9 Pa. Co. Ct. Rep. 277. Vt. 428. 'Hamilton?'. Austin, 62 N. H. 575. 8 Mace *>. Putnam, 71 Me. 238; and see 5 McGrath v. Merwin, 112 Mass. 467. Meader v. Whit?, 66 Me. 90. 59.] LAW OF CONTRACTS. 53 cepted, he may be required to work on Sundays, and may be discharged for refusing to do so. 1 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. 2 If an instrument be dated the date- inserted will be regarded as the true date unless otherwise proven. 3 1 Nelson v. Pyramid H. P. Co. (Wash.), 30 f 5 Amer. & Eng. Ency. Law 77. Pac. Rep. 1096; other cases accord and 3 See 5 Amer. & Eng. Ency. Law 80, 81- contra in 24 Amer. & Eng. Ency. Law 559. 92. CHAPTER II. LAW OF CONTRACTS. ESSENTIAL ELEMENTS OF A CONTRACT. THE CONSIDERATION. THE THING FOR WHICH THE ACT IS DONE. CONTRACTOR 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. 1 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 1 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. 1 The detriment must be a detriment from entering into the contract, nufc from the breach of it. a 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 oommon 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 therein, 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 v. Misa, L. R. 10 Ex. 162; Lang- 2 Ridgway *. Grace (Com. PL), 21 N. Y. dell's Summary of Contracts 1022. Snpp. 934. * See Parties, Sees. 48, 49, supra. 56 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 63, taiuly it is well settled that when 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 made, the contract of each and all can be enforced. 1 63. Adequacy of Consideration. The consideration must have some value, and the considerations moving from 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. 2 The smallest sum of money may be a sufficient consideration for a promise to acknowledge satisfaction of a judgment for the largest sum. 2 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- doned 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. 3 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 Uself to prove fraud or imposition. 4 A promise to acoept a part of a debt ilready due in payment of the whole if paid by a certain day is without Consideration and void, for surely "a part cannot be equal to the whole." 5 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 J Homan v. Steele, 18 Neb. 652 [1886]; 9 Langdell's Summary of Cont' acts 1017. Orman v. Buel (Neb.), 59 N. W. Rep 515; 3 Langdell's Summary 1017; Emmet Co. His?ert . University, 53 Ind. 326 [1876]; v. Allen (la.), 41 N. W. Rep 201 [1889]. Brownlee v. Lowe (lud.), 20 N. E Rep. 4 Judya. Louderman (Ohio), 29 N. E. 301 [1889]; Stearns v. Corbett, 33 Mich. Rep. 181. 458 [1876]; but see 24 Amer. & Eng. Ency. 5 Wtts v. Frenche et al., 19 N. J. Eq. Law 328, et seq. 407 [1869]. 66.] LAW OF CONTRACTS. 57 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. 1 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 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. 3 An obligation enforceable in equity will support an express promise to pay and make it suable at law. 4 The moral duty of a father to provide for his child has been held a sufficient consideration for a promise to pay money. 5 65. The Consideration Must Not be Wanting. 6 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. 7 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. 8 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; 9 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. 10 Sullivan . Sullivan (Cal.), 33 Pac. Hopkins v Hinkley, 61 Md. 584; Price. Rep. 862. Peper, 13 Bush 42, horse dead. And the 2 LuMgdcll's S'unmaryof 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. 4 Condon. Barr (N. J.), 6 Atl. Rep. 826 Walker; . Tacker, 70111. 527. 614 [1886]; Cameron v. Fowler, 5 Hill (N. 8 Marion v. Bennett, 8 Paige 312; Mays Y.) 306. fl. Dwight, 1 Norris (Pa.) 462; Indianapo- 6 3 Amer. & Eng. Ency. Law 840. lis v. McAvoy, 86 Ind. 587. Tife v. Blake (Minn.), 38 N. W. Rep. Decatur v. Virmillion, 77 111. 315 202. [1875]. 1 Pollock on Contracts 441 ; Bishop on m McCandless v. Alleghany Bessemer Contracts, S 70 ; Rogers . Walsh, 12 Steel Co. (Pa. Sup.), 25 Atl. Rep. 579. Neb. 28; Gibson 9. Pelkie, 37 Mich. 380; 58 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 66. 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. 1 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 work which he was required to do by his contract was held without considera- tion. 2 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. 3 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. 4 "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. 5 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 lie 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 invite men to violate their most sacred contracts that they might profit by their own wrongs. 7 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, 1 Jones 0. Risley (Tex. Sup.), 32 S. W. 'McNutta. Loney (Pa. Sup.), 25 Atl. Rep, 1027. Rep. 1088; and see McCarly . Hampton 2 Alley v. Turck (Sup.), 40 N. Y. Supp. Bldg. Assn., 61 Iowa 287, where an addi- 433. tional guaranty w '8 exacted. 3 Widiman v. Brown (Mich.), 47 N. W. Stickler v. Giles (Wash.), 37 Pac. Rep. Rep. 231 [1890]. - 298. 4 Fitzgerald v. Fitzgerald & Mallory 7 Lingenfelder . W. Brewery Co. (Mo.), Const. Co. (Neb.), 59 N. W. Rep. 838. 15 S. W. Rep. 844 [1891]. 67.] LAW OF CONTRACTS. 59 and not as a consideration .of a new and later promise. 1 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. 2 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. 3 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. 4 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. 5 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. 6 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. 7 67. The Consideration Must be Present. The consideration must be present, i. e., in legal contemplation 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 1 Langdell's Summary of Contracts 1018. 5 Casterton u. Mclntire, 23 N. Y. Supp. 2 Risleya. Smith, 64 N. Y. 576 [1876], 301. and cases cited. 6 Blagborne . Hunger (Mich.), 59 N. W. "Yoeman v. Mueller, 33 Mo. App. 343 Rep. 657. [1889]. ' Irwin v. Locke (Colo.), 86 Pac. Rep. 4 Fitzgerald . Fitzgerald & Mallory 898. Coast. Co. (Neb.), 59 N. W. Rep. 838. 60 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 67, consideration 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. 1 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. 3 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. 3 In all these cases if the owner is free to refuse or caif 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 enrichment. If the 1 Langtlell's Summary of Contracts. 1024 v. Sweesy (Neb.), 67 N. W. Rep. 748; 8 Train . Gold, 5 Pick (Mass.) 380-285. Myers Dean (Com. PI.), 32 N. Y. 3 3 Arner. & 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. 1 If a part of the consideration is present and a part'past it will support the promise or agreement. 2 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 in.to 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. 3 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. 4 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 ] ive been given in 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., 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 caser in which B has been allowed to recover against the promisor. 5 Therefore 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. Ttu promise was held voluntary and without consideration. 6 1 3 Amer. & Eng. Ency. Law 839. on the part of the subcontractor to do un- 2 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 [18751. 5 3 Amer. & Eng. Ency. Law 863. 4 Read o. Hitchins, 71 Me. 590 [1880]. Stidham v. Sanford, 36 N. Y. Sup. Ct. [However, it was not a very brilliant thing 341 1 1873V 62 ENGINEERING AND AEG H1TECT URAL 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 village 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 proposed 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. 1 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. 2 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. 3 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. 4 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. 6 * Thus it has been held that if a contractor threatens to abandon his contract on account of pretended mis- 1 Dunton v. Chamberlain, 1 Brad well 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, 6 Holmes v. Doane, 9 Gush. 135; Wilgus 61 la. 287 [1883], 0. Whitehead, 6 W. N. of C. 537. 4 Juilliard v. Chaffee, 92 N. Y. 529; * There are numerous decisions to the contrary, which are set forth in Sec. 181. 70.] LAW OF CONTRACTS. 63 representations of the company, or becatise 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. 1 So it has been held that no new consideration waa necessary to sustain an agreement by the owner to extend the time for completion of a building contract. 2 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 law. 3 ' 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 undertaking 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. 4 A contract that has not been executed may be rescinded by mutual agreement, the parties exchanging promises not to enforce their rights; 5 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. 6 * 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. 7 If, however, a part only is void or voidable it is otherwise, 8 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- ation. 6 Where independent promises are in part lawful and in part unlaw- 1 Hart V. L'lunman, 29 Barb. 410; Os- 5 Foster v. Daber, 6 Exch. 851; Mora- borne v. O'Reilly, 42 K J. Eq. 467 [1887]. wetz on Corp'ns, 371. 2 Izard v. Kimmel (Neb.), 41 N. W. Rep. 6 Westmoreland v. Porter, 75 Ala. 452- 1068 [1889]; Hill v. Smith, 34 Vt. 535; [1883]. Rulsre 0. Gates (Wis.), 38 N. W. Rep. 181 7 LangdelFs Summary of Contracts 1030 ; [1888]. Pollock on Contracts (4th ed.) 321 ; Ed- 3 Webbe v. Romona O. S. Co., 58 111. wards Co. v. Jennings (Tex.), 35 8. W. App. 222. Rep. 1053. 4 Pollock on Contracts 180. 8 Clements of the sum recovered is against public policy; 9 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. 10 Agreements to pay money to a witness to keep out of court, 11 or to induce a public officer to violate his trust or neglect his duty, or to do things inconsistent with his official duties, 12 to gain particular official 1 Davidson v. Seymour, 1 Bosw. (N. Y. ) Rep. 343. 88; Halcomb v. Weaver, 136 Mass. 265; ' State Nat. Bank v. Fink (Tex. Sup.), 24 and seeder mudez Asph. Pav. Co. v. Critch- S. W. Rep. 256; Williams v. Ford (Tex. field, 62 111. App. 221. Civ App.), 27 S. W. Rep. 723 2 Burney's Heirs?). Ludeling(La.), 16 So. 8 Bierbauer v. Wirth, 5 Fed. Rep. 336 Rep. 507. [1880]. 3 Chesebrougk . Conover (N. Y. App.), 9 Lyon v Hussey (Sup.), 31 N. Y. Supp. 35 N. E. Rep. 633; 21 K Y. S. 566 281; Kennedy . Hodges (Ga.), 25 S. E. affirmed. Rep. 493. 4 Houlton 0. Dunn (Minu.), 61 N. W. 10 Friend 0. Miller (Kan.), 34 Pac. Rep. Rep. 898; but see contra Houlton v. Nichol 397. (Wis ), 67 N W. Rep. 715. " In re Brule (D. C.), 71 Fed. Rep. 943. 5 Basket v. Moss (N. C.), 20 S. E. Rep. 12 Robinson v. Patterson (Sup. Ot. Mich.), 733. July. 1888; Schlass v. Hewlett (Ala.). 1 Edwards v. Randle (Ark.), 38 S. W. So. Rep. 263. 68 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 75. favor, 1 or to influence legislators,' and similar undertakings, are illegal con- tracts, and will not be enforced by our courts. 3 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 that 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. 4 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. 5 Knowledge alone, even if the act does not amount to a felony, will preclude recovery in England. 6 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. 7 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 Eiver at New York, entered into before the necessary franchise had been obtained from the state and Federal governments would not be a binding obligation ; or a con- 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. 8 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 from 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 un unlawful act, or to drive a tunnel under a government fortress, as occurred on the West Shore Railroad at West Point. The question has been asked *3 Fed. Rep. 1; Hager tf. Callin, 18 Him 8 2 Keener's Cases on Quasi- Con tracts 448 [1879]; Slaunton . Kleinschmidt (Mont.), 13 6 Chippewa, etc., Ry. -y. Chicago, etc., Pac. Rep. 249 [1887]. Ry., 44 N. W. Rep. 17. 2 Pac. Tele. Cable Co. v. W. Union Tele- 7 Ford v. Gregson (Mont.), 14 Pac. Rep. graph Co., 50 Fed. Rep. 493. 659 [1887]. 3 Br.wn v. N. Y. Cent., etc., R. Co., 27 8 Ives . Smith, 8 N. Y. Supp. 46. N. Y. Supp. 69. 9 Wiggins Ferry Co. v. C. & A. R. Co., 4 Saginaw Gas & Light Co. t>. Saginaw 73 Mo. 389 [1881]. (U. S. Cir. Ct.) (Mich.), 22 The Reptr. 579 10 Oakes v. Cattaraugus Water Co. (N. [1886]; Gale v. Kalamazoo, 23 Mich. 344. Y.), 38 N. E. Rep. 461. 6 y Amer. & Eng. Ency. Law 892; Union Lewis. Gallner (N. Y.), 29 N. E. Rep. Trust Co. v. Atchison, etc., R. Co. (N. M.) f 81, reversing 14 N. Y. Supp. 362. 43 Pac. Rep. 701. 72 ENGINEERING AND ARCHITECTURAL 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. 1 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. 2 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. 3 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. 5 It is a fraud upon the public for persons to obligate themselves not to bid, or not to bid beyond a certain sum. 6 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. 7 * 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; 8 or as gas companies, not to compete in certain districts of a city, will not be enforced. 9 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. 10 1 Illegal Contracts, 9 Amer. & Eng. also McMullen 0. Hoffman (C. C.), 75 Fed. Ency. Law 879. Rep. 547. >J Moore 0. Bennett (111.), 29 N. E. Rep. 888. 7 McDonnell t>. Rigney (Mich.), 66 KW. 3 Milwaukee Masons' & Builders' Ass'ii Rep. 52; Atlas Nat. Bank v. Holm (G. C. 0. Niezerowski (Wis.), 70 N. W. Rep. 166. A.), 71 Fed. Rep. 489. 4 9 Amer. & Eug Ency. Law 898; People 8 Texas & R. Ry. Co. v. So. Pac. R. Co. 0. Stevens, 71 N. Y. 527; Durfee v. Moran, (La.), 6 So. Rep. 888. 57 Mo. 374 [1874]. Chicago G. L. Co. 0. Peop'.e's G. L. 5 Wicker v. Hoppock, 6 Wall. 94 [1867]; Co. (111.). 13 N. E. Rep. 169 [1887]. Flanders o.Wood (Tex.), 18 S.W.Rep.572, 10 Chicago, M & St. P. Ry. Co. v. Wa- between competing architects. bash, St. L. & P. Ry. Co. (C. C A ) 61 Hunter 0. Pfeifer, 108 Ind. 197; see Fed. Rep. 993. *See Lowest Bidder, Chap. VI., 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. 1 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 publio 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. a * 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 hia beneficiary. Thus it has been repeatedly held that the officers of a railroad company cannot agree to locate its depot at a particular point, 3 or the route of its road through a certain place. 4 If the contract tends to sacrifice the- interests of stockholders or of the public it is against public policy and therefore not valid. 5 The agreement is not of itself void, 6 and will hold if the company's and public interests have not suffered. 7 An interesting case came before the courts in Oregon, where one IL 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. 8 85. A Fiduciary Can have No Personal Interest in His Principal's Contract. Independent of the fact- that a railroad company is a quasi-public cor- 'Stebbinsfl. Leowolf, 3 Gush. 137 [1849]. 6 Railroad Co. v. Ralston, 41 Ohio St. 2 Waugh v. Beck (Pa.), 6 Atl. Rep. 923 573. [1886]. ' 7 Frey v. Ft. Worth & R. G. Ry. (Tex.), 3 Florida Cent. & P. R. Co. v. State 24 S. W. Rep. 950; Bank t>. Hendrie, 4& (Fla.), 13 So. Rep. 103: Northern Pac. R. Iowa 402 [1878]: Mills County v. B. & M. Co. . Territory (Wash), 13 Pac. Rep. R. Co., 47 Iowa 66 [1877]. 604 [1887]. 8 Holiday v. Petterson, 5 Oregon 177 4 Linderfl. Carpenter, 62 111. 309 [1872]; [1874]; 1 Redfield on Rys. 577, 140; also 13 111. App. 568. Fuller v. Dame, 18 Pick. 472; Pacific R. 5 Bestor v. Wathen, 60 111. 138 [1871]. Co. v. Seeley, 25 Mo. 212; Bestor v. Wat- hen, 60 111. 138 [1871]. * See Sec. 75, supra. 74 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 85. poration, the fiduciary relation of an agent, engineer, officer, or director of a corporation to his company and its stockholders would prevent him from having any personal interest in a contract. 1 A contract by a freight-agent to share with a contractor in the profits of a contract, the only service of the freight-agent being to allow the contractor a low freight rate on materials of construction, is void as against public policy. 2 An agreement by the bookkeeper of a corporation to disclose its financial condition to another is void, and it is immaterial that such other is a stockholder of the corpora- tion. 3 An agreement between two real-estate agents representing different 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 property with his agent will not give validity to the agreement. 4 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 to become binding. Such a contract may be ratified by a municipal corporation. 6 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. 8 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. 7 However, a contract founded on a promise to disclose information as to a place where a railroad company intended to locate itt 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. 8 * 86. A Man Cannot by Contract Forfeit Certain Rights 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 1 Bestor t>. Wathen, 60 111. 138. 5 City of Findlay . Pertz (C. C. A.), 66 'Barclay v. Williams, 26 111. App. 213 Fed. Rep. 427. 11887]. 6 Lum. Clark (Minn.), 57KW. Rep. 662. 3 Davenport . Hulme (Super.), 32 K Y. 7 Budd v. Scudder (N. J. Ck.) t 26 Atl. Supp. 803. Rep. 904. 4 Levy v. Spencer (Colo. Sup.), 33 Pac. 8 Green t>. Brooks (Cal.), 22 Pac. Rep. Rep. 415. 849 ; but see Wills v. Abbey, 27 Tex. 202. * And see Sec. 42, supra. 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. 1 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. 2 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, theji the contract must fail. It is contrary to public policy for a person to make agreements to forego his inalienable natural rights. A contract by 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. 3 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. 4 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. 5 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 1 9 Amer. & Eng. Ency. Law 883. Jour. 404 A recent ^ase carried to the 2 9 Amer. & Eng. Ency. Law 880. conrt of appeals in i\eTv York held not. 3 9 Amer. Eng. Etiry. Law 913 ; 26 Porter v. N. Y. L. E. & W. R. Co., 129 K Amer. Law Rev'w 212 [18921 ; 21 Amer. Y. 624, [Dec. 1891]; see also Rose v. Des La v Rev'w 506 ; L S. & M. S. Rv Co. . Homes R., 39 Iowa 246, 20 Amer. Ry. Rep. Spangler (Ohio), 2 The Remr. 734 [18861, 326; find many cases cited in note p. 338. 44 Oh:o fit. 471 : Porter v. N. Y. L. E. & 5 Marr v. Telegraph Co. (Tenn.), 3 S. W. W. R. Co., 129 N. Y. 624 [18911. Rep. 496 [1887], 85 Tenn. 529. 4 See cases just cited, and see 36 Alb. Law * See Engineers' and Architects' Employment, Sec. 264, infra. 76 ENGINEERING AND ARCHITECTURAL 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 when a proper case may be presented. 1 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 cases 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 ; 4 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. 6 Nor is it void for want of mutuality nor for lack of consideration. 7 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. 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. 8 * 1 See Ins. Co. . Marse, 20 2 See Atlanta & R Co. v. Mon j 266; Nate v. Hamilton Ins. 174; Hobbs v. Manhattan Ins. Co., 55 Me. Shaver v. Penna. Co. (C. C.), 71 Fed. 421 : Scott 0. Averv, 5 H. of L. Cas. 811 ; Rep. 931. Story Eq. Jur., 670. 6 Donald V. Chicago, B. & Q. Ry. Co. 'Motion. Nav. Co. v. Fenlon, 4 W. & S. (Iowa), 61 N. W. Rep. 971. 205; 7 Casey 306; 79 Pa. St. 480, citing 'Pittsburgh, etc., R. Co. v. Cox, supra, engineering cases to support them. 8 Hulse v. Bonsack Much. Co. (C. C. A.), 4 Whiter Middlesex R. Co., 135 Mass. 65 Fed. Rep. 864. 216 [1883]. * See Sees. 216-225, infra* ^ Wall. 445. 5 Chicago. B & Q. R. C > v Bell (Neb.), onghan, 49 Ga. 62 N. W. Rep. 314; Pittsburgh, etc., R. 5. Co., 6 Gray Co. . Cox (Ohio Sup.), 45 N. E Rep. 641 ; 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. 1 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, 2 or possibly of a bucket-shop or even a stock exchange. 3 * 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. 4 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. 6 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. 7 No recovery can be had for the expense of printing an immoral publication. 8 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 afterward 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. 10 It is not therefore necessary to plead public policy to prevent a recovery on a contract invalid as against public policy. 11 '9 Amer. & Eng. Ency. Law 921; 6 Wilde v. Wilde (Neb.), 56 N. W. Rep. Pearce . Brooks, L. R. 1 Exch. 213 ; 724. ReerU Brewer (Tex.), 36 S. W. Rep. 99. 7 Rice to. Williams, 32 Fed. Rep. 437 2 Contra Michael . Bacon, 49 Mo. 476, [1887]. and cases cited. 8 Poplett v. Stockdale, 2 C. & P. 198. * See cases collected in 9 Amer. & Enir. 9 Hanks v. Waglee, 54 Cal. 51 [1879]; Ency. Law 922. Reed v. Brewer, supra, Bourngueres #. Boulon, 54 Cal. 146 [1880] ; held that notes given for furniture for a Saxon v. Wood (Ind.), 30 N. E. Rep. 797. house of prostitution were void. 10 Church 0. Proctor (C. C. A.), 66 Fed. 4 Hutchins v. We 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 ENGINEERING 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. 8 1 Pollock on Contracts (4th ed.) 321. 2 Gate v. Blair, 6 Coldw. 639 ; Pierce v Kibbee, 51 Vt. 559 ; King v. Wiuanto, 71 N. C. 469, also 73 N. C. 563. 8 Ragsdale 0. Nagle (Gal.), 39 Pac. Rep. 628; Arnot v. Coal Co., 68 K Y. 558. A case of making the price of coal, the plaintiff had assisted in facilitating the Illegal act. And see 2 Keener 's Cases on Quasi-ContTacts 35. 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. 1 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. 2 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: 3 " 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. v. Hurd, 18 Fed. Rep. 2 Hynesa. Wright, 62 Conn. 323 ; but see 673 [1883] ; Pullman Palace Car Co. u. Tex. Sheffield Fur. Co. u. Hull Coal & Coke Co. & Pac. R. Co , 11 Fed. Rep. 625 [1882]; (Ala ), 14 So. Rep. 672. Greve v. Ganger, 36 Wis. 369 ; Shields . 3 Langdell's Summary of Law of Con- Hickey, 26 Mo. App. 194 [1887]. tracts 1090. * See Sec. 183, infra. 79 80 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 90. tablishing a contract. Au 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. 1 As an instance, suppose an engineer draws up two contracts for the 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 the other instead, then there is no contract. 2 There must be a definite under- standing between the parties as to all the elements of the contract. 3 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. 4 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. 6 A mistake as to the person with whom the contract is made has been held to invalidate it where it was shown that the contracted never intended to contract with the person who assumed to be the contractor. 6 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. 7 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. 8 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 1 Langdell's Summary of Contracts. 1091. K E. Rep. 10. 2 A contract is completed by delivery. 4 Pollock on Contracts 433; Hopkins v. There was no contract as to the one deliv- Hiukley, 61 Md. 584 ; Rogers v. Walsh, 12 red, for there was no consent ; not as to Neb. 28 ; Gibsons. Pelhie, 37 Mich. 380; the other contract, because there was no Lamar Milling & Elevator Co. v. Craddock delivery to evidence the assent. Langdell's (Colo. App.), 37 Pac. Rep. 950. Summary 170. [It might be a very difficult 6 Henkle v. Pape, L. R. 6 Ex. 7. matter of proof, however. ED.] - 6 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 engineer or architect for their Benjamin on Sales 372. joint benefit has been held a good delivery. 7 Calverly v. Williams, 1 Vesey Jr 210; Coey V. Lehman. 79 111. 177 ; Blanchard v. Pollock on Contracts 430, 431, and cases Blackstone, 102 Mass. 343. cited. 8 Hubbard v. Thompson, 25 Fed. Rep. 8 Raffles . Wichelhaus, Langdell's Se- 188 [1885] ; Sibley v. Felton (Mass.), 31 lect Cases on Contracts 39. 90.] LAW OF CONTEACT8. 81 entering into the agreement if it subsequently transpires that the assump- tion on which the contract was based was erroneous. 1 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. 8 An error as to quality will 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, 3 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/' 4 It has been held that executed contracts are obligatory without regard to mutuality. 5 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; 6 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. 7 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. 8 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 1 United States v. Charles (C. C. A.), 74 5 Grove . Hodges, 5 P. F. Smith 504. Fed. Rep. 142. Waterman v. Waterman, 27 Fed. Rep. 2 Columbia Wire Co. v. Freeman Wire 827. Co. (C. C.), 71 Fed. Rep. 302. 7 Kouutz . Flannagen (Sup.), 19 K Y. 3 Pollock on Contracts 436; American Supp. 33. cases cited in the Blackstone edition [1888]. 8 Turner v. Webster, 24 Kan. 38 [1880]; 4 Poland v. Brownell, 131 Ma^s. 138; Tucker . Preston (Vt.), 11 Atl. Rep. 726 Armstrongs. Huffstutler, 19 Ala 51; Hill [1888]; Vogel v. Pekoe (111. Sup.), 42 N. 0. Bush, 19 Ark. 522; Bell v. Henderson, E. Rep. 386. 6 How. (Miss.) 321. 82 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 91. agreed to one of these views as to quantity, then there was no special con- tract as to price. 1 There is no contract unless the parties thereto assent,, and they must assent to the same thing in the same sense. 2 * 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. 3 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. 4 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 a contract. There is no meeting of the minds of the parties as to the con- ditions, restrictions, and regulations mentioned. 5 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. 6 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- has 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, 1 Greene v. Bateman, 2 Woodb. & M. Verzan v. McGregor, 23 Cal. 339, where 239. the contractor made a mistake in estimat- 2 1 Parsons on Contracts 389; and see ing amount and difficulty of work. Flaherty v. Miner, 123 N. Y. 382, in 4 Gill Manfg. Co. ."Hurd (Ohio), 18 which case it was claimed that the clause Fed. Rep. 673 [1883]; see Lyndon Mill for architect's certificate was inserted by Co. v. Lyndon Lit. Inst., 63 Vt. 581, where mistake. A strong architectural case. It the owner supposed the contractor was is submitted that this question of quantity furnishing the materials as a gratuity, might frequently be determined by the 5 Walton v. Mather (City Ct.), 24 N. Y. custom or usage of the place. Supp. 307 3 Howard v. School, 78 Me. 230; and see 6 'Pollock on Contracts 432. Hughes v. Clyde, 41 Ohio St. 339; also 92.] LAW OF CONTRACTS. 83 neither party can assert that he did not understand or assent to its terms. 1 Where the written draft of a contract is viewed as the consummation of the- negotiations there is no contract until it is finally signed, 2 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. 3 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. 4 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. 5 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. 7 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. 8 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 v. Gallant, 62 1ST. Y. 256. 6 Pittsburgh, etc., Ry. Co. . Racer 2 Steamship Co. . Swift, 29 Atl. Rep. (Ind.), 38 N. E. Rep. 186. 1063, 86 Me. 248; but see Sanders v. Potts- 1 Foster 0. Mackinnon, L. R. 4 C. P. litzer Bro*. F. Co. (N. Y. App.), 39 N. E. 704, 711; Pitcher v. Henuessy, 48 N. Y. Rep. 75. 415. 8 Mississippi & Dominion Steamship Co. 8 Wells v. Caiman, 107 Mass. 514 [1871] r v Swift, 86 Me. 248. cases cited. But see Harvard Law Pro- 4 Lawrence v. Milwaukee, L. S. & W. R. fessor's doctrine in Harvard Law Review,. Co. (Wis.), 54 N. W. Rep. 797. 06 Sec. and an article on the effect, of destruction 797. of buildings on contract for sale of ti e 5 Pullman P. C. Co. v. Booth (Tex.), 28 property, 12 Central Law Journal 77, by S. W. Hep. 719. E. A. Marshall. 84 ENGINEERING AND ARCHITECTURAL 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 been 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 what 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, i. 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.] LAW OF CONTRACTS. 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. 1 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 im 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 1 Camden Iron Wks. t>. Fox (N. J. C. C.), 34 Fed. Rep. 200 [1887]. 86 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 95. would-be agreement. 1 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 proceed further in performing the consideration of the offer. If the contractor 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 be 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, the 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." Tt 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. 8 It is pretty well settled in this country and in England that a contract is completed at the moment the letter of acceptance is mailed, or the message of acceptance delivered to the telegraph company. 4 1 In such cases the law implies 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 have been done officiously, or no re- ft 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 the owner, without any request, the owner stands by 2 Hunt v. Highman (la.), 30 N. W. Rep. #nd allows the contractor to do work or 769 [1886]. furnish materials, acting in good faith, 3 Western Union Telegraph Co. v. Way and the owner takes possession of the (Ala.), 4 So. Rep. 844 [1887]. materials and work and enjoys the benefit 4 Trevor v. Wood (N. Y.), 16 Am. Law thereof, the law will imply a contract on Reg. 215 [1868]; Terrier . Storer, 19 N. his part to pay for such work and ma- W. Rep. 288 [1884]; Adams v. Lindsey, terials. Thomas v. Walnut Land, etc., 1 B. & A. 681 [1818]; Dunlop v. Higgins, Co., 43 Mo. App. 653; Henderson B'dge. 1 H. of L. Cas. 381 [1848]; Thomson v. Co. . 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 cited, 29 Amer. & Eng. Eucy. Law 96.] LAW OF CONTRACTS. 87 The soundnes-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. 1 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. 2 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 3 if it appears that he then resided in the town to which the letter was addressed, 4 and the delivery of a letter to a mail-carrier is equivalent to depositing it in the post- office. 5 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. 6 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. 7 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. 8 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 1 Langdell's Summary of Contracts 993. 6 Pearce v. Langfitt, 101 Pa. 507 [1883]. 2 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 S. W. Rep. 436; Young v. 7 Havens 0. American Fire Ins. Co. (Ind. Clapp (111. Sup.), 35 N. E. Rep. 372. App.), 39 N. E. Rep. 40. 4 Goodwin v. Provident Sav. Life Assur. 8 Lawrence v. Milwaukee, etc., R. Co* Soc. (Iowa), 66 N. W. Rep. 157. (Wis.), 54 N. W. Rep. 797. 88 ENGINEERING 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. 1 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. 2 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. 3 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. 4 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. 6 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 ta 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. 7 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. 8 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- 1 Furrier v. Storer, 19 N. W. Rep. 288 condiiions silence or a failure to reply [1884]. will amount to an acceptance of an offer, 2 Eliason v. Henshaw, 4 Curtis 382 [1819]. see 27 Am. Law. Reg. N. S. 260 [1888]; 3 Lewis v. Browning, 130 Mass. 173 Tyler v. Tuatlin Acad. etc., 26 Am. Law. [1881]; Home v. Niver (Mass.), 46 N. E. Reg. 339 [1887]. Rep. 393. 6 Lanedell's Summary 1090; Sherwin v. 4 Hyde v. Wrench, 3 Beavan 334. Nat. C. K. Co. (Colo. App.), 38 Pac. Rep. * Sheffield C. Co. . Sheffield & R. Ry. 392. Co., 3 Ry. & C. Cas. 121; W. & H. M. 'Sherwin v. Nat. C. R. Co., supra. Goulding v. Hammond (C. C. App.), 54 8 Fosters. Dabber, 6 Ex. Ch. 851; Mora- Fed. Rep. 639. When and under what wetz on Corporations, 871. * See Mutuality, Sec. 89, supra. 97.] LAW OF CONTRACTS. . 89 ing them to some one else. l 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. 2 In the case of a specific chattel where 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. 8 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. 4 * 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. 5 An intimation in the written acceptance of a proposal that a contract will be afterwards prepared, does not prevent the contract from taking effect. 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 1 Query: if the offeree had been apprised 800 [1888]. of the sale by the purchaser would it re- "Hughes v. Clyde, 41 Ohio St 339. voko the offer. 5 Lewis . Brass, L. R. 3 Q. B. D. 667; v LangdeH's Summary of Contracts 1091. Lawrence v. M. L. S. & W. R. Co., 54 N. 3 Denton v. City of A., 34 Kan. 438 W. Rep. 797. [1885]; Wiles . Hoss (Ind.), 16 N. E. Rep. Winn v. Bull, L. R. 7 Ch. Div. 29. * See Lowest Bidder, Sees. 182-3, infra. 90 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 97. formally executed. 1 In each case the evident 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. 2 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 ceuld have bought. 3 * - 1 Walter v. Walther (City Ct.), 24 N. Y. 2 Langdell's Summary of Contracts, 1089. Supp. 307; but see Emdem's Law of Build- 3 Langdell's Summary of Contracts, 1090. ing 58. *See Lowest Bidder, Sees. 132-199, especially Sec. 184, infra. CHAPTER V. LAW OF CONTRACTS. GENERAL STATUTES LIMITING THE LAW OF CONTRACTS. STATUTE OF FBAUDS. 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- ence of certain facts and the proof of them are two quite different 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 arid 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 $40 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 requiring . 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 ENGINEERING AND ARCHITECTURAL 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. The person rendering services may usually recover upon a quantum meruit? but not upon the express contract. 2 If a contract is required to be in writing, all material variations of such contract must be in writing. 3 The general requirements of the different statutes are the same for the 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. 4 It applies to contracts for exchange, barter, and to executory as well as exe- cuted sales ; 5 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. 6 101. 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 he 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 that if the article manufactured is to be of special or peculiar design and not 1 Salb v. Campbell fWis.), 27 N. W. Rep. 3 Malone v. Philadelphia, 147 Pa. St. 416. 45 Cohen v. Stene (Wis.), 21 N. W. Rep. 4 Davis v. Robertson, 1 Mill. 71 ; Davis 514. v. Rowell, 2 Pick. 64. 2 LnrPiam v. Osborae (Nev.), 18 Pac. Rep. 6 8 Amer. & Eng. Eucy. Law 704. 88*1 [1888]. 6 8 Amer. & Eng. Ency. Law 705, [ 102. LAW OF CONTRACTS. 93 suitable for general trade, then it is not within the statute. 1 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. 2 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. 3 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. 4 * 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 arid 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. 5 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. 6 102. 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 coritract. 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, 7 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- 1 Brown & H. Co. v. Wimder (Minn.), 67 Ency. Law 860 ; Lee 0. Griffin, 1 B. & S. N. W. Rep. 357. 272 ; Clay v. Yates, 1 H. & N. 73. 2 Forsyth v. Mann (Vt.) 34 All. Rep. 5 Grigsby v. Fomhs (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. Eucy. Law 710. 4 Brown & H. . Wunder (Minn ), 67 N. 7 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 ENGINEERING 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. 1 103. 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 be 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. 3 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; 3 but it might be otherwise if the contract were completely performed by the debtor. 4 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. 5 The same ha ^een held of an agreement dated June 5, 1883, for the erection of a structure to be put up 1 8 Amer. & Eng. Ency. Law 710-728. (Dak.), 37 N. W. Rep. 749 [1888], and 2 Warren Co. v. Halbrook, 118 N. Y. note. 586, 16 Amer. Repts. 788; Lockwood v. 3 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. 208, 4 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. Shadow b Jones v. Pouch, 41 Ohio St. 146 [1884] ; 105.] LAW OF CONTRACTS. 95 part during the season of 1883 and part during the season of 1884; l and of an agreement to work a quarry and to divide the profits, no time being specified. 2 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. 3 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 ta 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. 6 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; 8 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 years. 7 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. 9 While this, case may represent the general law, there are many cases to the contrary in Massachusetts, 10 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- Plimpton. Curtis, 15 Wend. (N. Y.) 336; Rep. 241 [1888] ; 8 Amer. & Eng. Eucy. Fain v. Turner's Adm'r (Ky.), 29 S. W. Law 691. Rep. 628. 7 Warner v. Texas & P. Ry. Co., 17 Sup. 1 Sarles v. Sharlow (Dak), 37 N. W. Rep. Ct. Rep. 147. 749 [1888]. 8 Donovan v. Richmond (Mich.), 2S 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. 9 Durfee v. O'Brien, 14 Atl. Rep. 857 4 Walker v. Railroad Co. (S, C.), 1 S. E. [1888] : Haines v. Thompson, 19 N. Y. Rep. 366 [18871. Stip. 184. 6 Walker . Johnson, 96 U. S. 424. 10 See 8 Amer. & Eng. Ency. Law 692. 'Carr v. McCarthy (Mich.), 38 N. W. 96 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 105. nce 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, 1 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. 3 A verbal agreement for a future term to begin at once and not exceeding one year is not within the statute. 8 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. 4 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. 5 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. 6 * 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. 7 Contracts not to be performed within a year must be signed by both parties. If not signed, 8 part performance will not take it out of the opera- tion of the statute in an action at law, 9 although it has been held a ground for relief in equity. 10 1 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 S. W. Rep. 379. signed him" Carter W. Ld. Co. v. Kin- 2 Smes v. Supt. (Mich.), 25 N. W. Rep. liu (Neb.), 66 N. W. Rep. 536, "so long as 485; Cullis v. Bothhamley, 7 W. R. 87; the works are kept running " Lelande v. Aldrich (La.), 6 So. Rep. 28, 6 Blake . Voi^ht (N. Y. A 1 p.), 31 N. 8 Amer. & Eug. Ency. Law 687, 14 Amer. E. Rep. 256 [1892]; but see contra Doyle v. <&Eng. Ency. Law 765; Ball . Stover, 31 Dixon, 97 Mass. 208; and see Dobson v: N. Y. Supp. 781; Herman 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. *8ee also Sec. 201, infra. 106. LAW OF CONTRACTS. 97 106. Contracts 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 made in writing. This section has been held to apply to private sales, auction sales by 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 in short to every agreement by which an interest in land is modified, increased, or diminished, even to agreements for the possession of lands ; l 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, 3 or to prepare the plans of a building and to superintend the construction thereof, in consideration of the conveyance of a certain lot. 4 Whether a sale of growing timber or crops is an interest in lands is held differently in different states. It is usually determined by the 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 some 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 and cultivated like growing grain, potatoes, and root crops, then an oral con- tract will suffice. 5 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. 6 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 the statute. 7 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. 8 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 1 8 Amer. & Eng. Ency. Law 694-7. 6 8 Amer. & Eng. Ency. Law 701. 2 Rice v. Roberts, 24 Wis. 461. 7 Many cases cited in 29 Amer. & Encr. 3 Meyers v. Schemp, 67 111. 469; but see Ency. Law 860; Scales 0. Wiley (Vt.), 33 contra 8 Amer. & Eng. Ency. Law 698. Atl. Rep. 771. 4 Koch . Williams (Wis.), 52 K W. 8 Stuht . Sweezy (Neb.), 67 N. W. Rep. Rep. 257. 748. 5 8 Amer. & Eng. Eucy. Law 698-700. 98 ENGINEERING 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; l but parol agree- ments between coterminous owners of lands fixing their boundaries, fol- lowed by possession, is valid and binding, 9 and an agreement to remove a fence has been held not within the statute. 3 There are, however, decisions holding such oral agreements void. 4 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. 5 The right to possession of land is such an interest in land as to require an agreement to deliver possession to be in writing. 6 107. Special Agreements Relating to Lands. Agreements releasing pecuniary claims for damages to lands where they have been flowed by a mill-pond, 7 or have been taken for public purposes, need not be in writing, for they are held not within the statute. 8 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. 8 Where land has been conveyed an oral promise 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. 9 108. 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 recover 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 he 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. 10 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. 11 1 8 Amer. & Eng. Ency. Law 703. Smith 9. Goulding, 6 Gush. (Muss.) 154. 2 Archer v. Helin (Miss.)- 11 So. Rep. 3. 8 8 Amer. & Eng. Ency. Law 704. 3 Storms v. Snyder. 10 Johns. 109; and 9 Freed 9. Richy (Pa.). 8 All. Rep. 626; see 44 Wis 96, 60 Wis. 310, 500. Kickland v. Mensha W. W. Co. (Wfe.), 31 4 White 9. Hopeman, 43 Mich. 267; N. W. Rep. 471; Huff r. Hall (Mich.), 23 Hagey v. Detweiler, 35 Pa. St. 409. N. W Rep. 88: Camp v. Moreman (Ky.), 5 See Adverse Possession, 1 Amer. & Eng. 2 S. W. Rep. 179; Railroad Co. 9. English, Encv. Law 249-250. 16 Pac. Rep. 82 [18871. Boyd 9. Paul (Mo.), 28 S. W. Rep. 10 8Amer. & Eng. Ency. Law 661. 171. " 8 Amer. & Eng. Ency, Law 662. 7 Clement 9. Durgin, 5 Greel. (Me.) 14; *8ee Sec. 53, supra. 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. 1 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. 3 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 leasfe in writing, even by paying for it. 110. Promises to Answer for the Debts of Another. The statute alst? 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. 2 Kelly v. Palmer (Neb.), 60 N. W. Rep. 277; and see Lobit v. McClave(Tex.), 28 S. 924. W. Rep. 726. 3 8 Amer. & Eng. Ency. Law 667. 100 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [111. a partner to pay a firm debt is not within the statute, while a stockholder's 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. 1 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, 3 but there is a safe and sure way for the owner or his engineer, which is to make such agreements in writing, and 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 apparent purpose to quit unless payment was made or assured was told by a 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. 3 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. 4 In another case an oral agreement by the owner to pay a subcontractor, on the abandonment of the contract by the 1 Seguine ID. Spaeth (Com. PI.), 35 N. Y. 29; Warwick v. Grasholtz, 3 Grant 234. Supp. 847. 4 Gill v. Herreck, 111 Mass. 501 [1873]; 8 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 CONTRACTS.' YOl original contractor, an amount already due him from the latter and an 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. 1 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 said work in said place." It was held a guaranty to pay the debt of C., and not an original obligation by the owner. 2 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 pay plaintiff's debt, but to benefit defendant by the immediate acquisition of materials for the building. 3 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 verbal collateral contract. 4 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. 6 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. 8 It has 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. 7 Promises by a husband 1 McLaughlin v. Austin (Mich.), 62 N.W. 4 Farnham v. Davis (Me.), 9 All. Rep. Rep. 719; Andree v. Bowman, 13 Md. 241. 725 [1887]. 2 Bierschenk v. Stokes, 26 N. Y. Supp. 5 Brester v. Pendell, 12 Mich. 22 1 [1864] 88; and see Emerson v. Slater, 22 How. 28. 6 Barras v. Pomeroy Coal Co. (Neb.), 5t 3 Bice v. Marquette, etc., Co. (Mich.), 55 N. W. Rep. 890. K W. Rep. 382; Calkins v. Chandler, 36 ' Suell v. Rogers (Sup.), 24 N. Y. Supp Mich. 224, followed. 379. 102 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 112 for die 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. 1 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. 8 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. 3 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 the 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, as where a party may not be able to pay during the period, but afterwards becomes affluent, or where it is within the power of the defendant to avoid and evade a suit during the statutory period. 4 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. 5 113. Statute Does Not Destroy the Contract Obligation, but Affects the Remedy or Means of Enforcing It. The statute does not and cannot affect 1 Brennan v. Chapin, 19 N. Y. Supp. 3 8 Amer. & Eng. Ency. Law 684; Short 237; Perkins u. Westcoat (Colo.), 33 Pac. 0. Statts. 58 Ind. 29 [18771. Rep. 189. 4 13 Amer. & Eng. Ency. Law 736. * Aidritt v. Panton (Mont.), 42 Pac. Rep. 5 Abraham v Ordway, 15 Sup. Ct. Rep. W. 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 has passed. A counter-claim or cross-complaint is not a defense in this sense. The statute has only to do 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. 1 114. 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. 1 13 Amer. & Eng. Ency. Law 693-704. 104 ENGINEERING 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 th& 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- ship 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 1 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. 8 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 aay 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. 3 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. 4 The business of the government being transmitted entirely through agents, who are so numerous and scattered, the utmost vigilance would not protect 1 13 Amer. & Eng. Ency. Law 737. 4 Slantey v. Schwalby (Tex.), 19 8. W. 2 13 Amer. & Eng. Ency. Law 735. Rep. 264 [1892] ; Jefferson City V. Whipple r 3 Amy. v. Watertown (Wis.), 22 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. 1 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 tha 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. 2 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 lost 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 ; 4 it cannot be raised for the first time on appeal. 5 117. 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. 6 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 1 See United States v. North Amer. C. Rep. 261. Co. (C. C.), 74 Fed. Rep. 145. 5 Eiseman . Heine (Sup.), 37 N. Y. 2 13 Amer. & Eng. Ency. Law 715. Supp. 861; Pickett v. Edwards (Tex.), 25 3 13 Amer. & Eng. Ency. Law 716. S. W. Rep. 32. 4 Shaver v. Sharp Co. (Ark.), 34 S. W. 6 13 Amer. & Eng. Ency. Law 717. 106 ENGINEERING AND ARCHITECTURAL 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. 1 119. 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 011 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 fraud 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. 2 When fraudulent practice has 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. 3 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. 4 The recording of a deed has been held sufficient notice, so that there should have been a discovery. 5 1 13 Amer. & En. Plummer. 4 4 Bishop on Contracts 175, 355, 58, and Pet. 172; Argall v. Bryant, 1 Sandf. 99; cases cited; 17 Amer. & Eng. Ency. La\v Rankin v. Shaeffer, 4 Mo. App. 108. 420. 2 Donovan v. Sheridan (Super. N. Y.), 5 McKinley v. Williams (C. C. A.), 74 24 N. Y. S. 116. Fed. Rep. 94. 3 Gibbons . Sexton App. 503. (111.), 30N. E. Rep. 461 [1892]; and Knight This presumption may be overcome if . Knight (Ind.), 30 N. E. Rep. 421 [1892]. the parol evidence be admitted without 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, 1 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. 2 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 will such misrepresentations invalidate the contract. 3 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 clear, the court will not look beyond the four corners of the paper for the entire 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 to when it was to be done could not be received to vary the ordinary legal con- struction that it was to be performed in a reasonable time. 6 So when a con- tract has been signed for the insertion of an advertisement in a paper for one objection. Brady v. Nally (N. Y. App.), of a patent actionable, 8 Amer. & En. 45 N. E. Rep. 547. Ency. Law 636, if the person to whom 1 Eaton v. Gladwell (Mich.), 66 N. W. they are made has the same means of in- Rep. 598. formation. Bryan v. Idaho Quartz Min. Co. (Cal.), 4 Kinsman & Co. v. Shawley, 1 Mo App 14 Pac. Rep. 859; Wonderly v. Holmes Rep'r 281. Lumber Co., 56 Mich. 413 [1885]; Curtiss 5 Liljengren Fur., etc., Co v Mead . Waterloo, 38 Iowa 266 [1874]. (Minn.), 44 N". W. Rep. 306- Boehm v. 3 8 Amer. & Eng. Ency. Law 636. Nor Lies, 18 N. Y. Supp. 577. are false representations as to the validity 110 ENGINEERING 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, 1 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. 2 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, 3 or that the defend- ant railroad company was to haul the materials, 4 or that the contract price was one suitable for a rough job only, 5 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. 6 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. 7 123. When Parol Evidence will be Received. 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. 8 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. 9 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 1 Cohen v. Jockoboice (Mich.), 59 N. W. Rep. 598. Other cases see Monroe v. Per- Rep. 665. kins, 9 Pick. 298; Rand v. Mather, 11 2 Coleman v. Rung, 31 N. Y. Stipp. 456. Cush. 1; 59 Am. Dec. 181. 3 McNeeley?>. Me Williams, 13 Ont. App. 7 Bulwrinkle v. Cramer, 3 S. E. Rep, 324 [1887]. 776 [1887]. 4 Scott . Norfolk & W. R. Co. (Va.), 8 Byerstet v. Winona Mill Co. (Minn.), 178 E.Rep. 882. 51 N. W Rep. 619 [1892]; 17 Amer. & 5 Crow0. Becker, 5Robt. (K Y.) 262. Eng. Ency. Law 438; Best's Chamber- 6 Jones v. Risley (Tex.), 32 S. W. Rep. layne's Principles of Evidence 235. 1027; Eaton v. Glad well (Mich.), 66 N. W. 9 17 Amer. & Eng. Ency. Law 436. 123.] LAW OF CONTRACTS. Ill measurements are made and work is estimated. 1 It is well established that parol evidence will not be received of a usage which is repugnant to the express terms of the contract, 2 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. 3 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. 4 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, eviden9e will be received to locate the prem- ises, 5 and to show that the parties of a written lease of " four acres out of lot four " had agreed on certain boundaries thereof. 6 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. 7 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. 8 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. 10 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- 1 Ford 0. Beech, L. R. 11 Q. B. 866. ford (Tex.), 27 S. W. Rep. 790. 2 Myers v. Sari, 30 L. J. Q. B. 9; Mallan 6 Schneider . Patterson (Neb.), 57 N. v. May, 13 M. & W 517. W, Rep. 398 ; Trinley u. McDowell, 24 S. 3 See 13 Solicitors' Journal & Rep., pp. W. Rep. 928. 312, 336, 353, and 373. ' Doane College v. Lanham (Neb.), 42 N. 4 Coleman v. Man. Imp. Co., 94 N. Y. W. Rep. 405 [1889]. 229; Howard . Pepper, 136 Mass. 28; 8 Isaacs v. Smith, 55 N. Y. Super. Ct. Bennett v. Pierce, 28 Conn. 315 ; Hilde- 446 [1888]. brand v. Fogle, 20 Ohio 147. Bcrgin v. Williams, 138 Mass 544; 5 2 Parsons on Contracts 549, 21 Wend. Comer u. Comer (111.), 11 N. E. Rep. 848 652, 13 Peters 89 ; see also Primey v. [1887]. Thompson, 3 la. 74 ; McKinzie v. Staf- 10 17 Amer. & Eng. Ency. Law 442-3. 112 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 124 plated by the parties; 1 also, that stone from a certain quarry were to be used; 2 as to how payments should be made and the place and time of delivery ; 3 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 ; 4 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 yerbally 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. 5 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"; 7 "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. 8 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. 9 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, 10 or a promise to do something. 11 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. 12 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, yary, 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 1 Donlin v. Daeglin, 80 111. 608 [18751. 7 Barker v. Troy, etc., B. Co., 27 Vt. 766. 2 Centenary Church v. Cline (Pa.), 9 Atl. 8 Western Union R. Co. v. Smith, 75 111. Rep. 163 [1887]. 496 [1874]. 3 17 Amer. & Eng. Ency. Law 436; 9 Wood v. Moriarity (R. I.), 9 Atl. Rep. Duplanty v. Stokes "(Mich.), 61 N. W. 427, 17 Amer. & Eng. Ency. Law 438. Rep. 1015. 10 Tolman a.Wavd, 86 Me. 303 ; Miller v. 4 Season v. Kurz (Wis.), 29 N. W. Rep. McCay, 50 Mo. 214. 230. 11 Twomey v. Crowley, 137 Mass. 184. 5 Quarry Co. . Clement, 38 Ohio St. 587. 12 Note, Bolles v. Sach (Minn.), 33 N.W. 6 Smith v. Aiken, 75 Ala. 209. Rep. 862 [1887], cases cited. 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. 1 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 ourt 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. 2 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. 3 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. 4 Evidence of such subsequent statements and conduct are only competent to show the parties' understanding of it, and do not change its express terms. 5 The conduct has no doubt a great, if not controlling, weight in the interpreta- tion of a contract, 8 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. 7 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. 8 125. 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; 9 and a subsequent contract with regard to the same subject-matter is admissible to show how the parties understood the earlier contract. 10 The construction of a contract adopted by parties will prevail. 11 A promise of 1 Caperton's Adm'rs 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 be compared on the basis of the engineer's estimate of the materials and work to be done, which is as follows : Items, [a] [b] [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 information 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 furnish bonds and has time to make a careful estimate, and finally, whether he will compete for and undertake 124 ENGINEERING 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 they 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 the contract, but that the terms and conditions of the contract to be made must be approred by the board of estimate and apportionment. 1 135. 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. 2 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. 3 If it be required by statute, ordinance, or resolution that the adver- 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. 4 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, that the proceedings are not rendered invalid because it was advertised in only one newspaper ; 5 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. 6 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 ; 7 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. 8 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; 9 but where People v. Waring (Sup.), 39 N. Y. 107; 16 Amer. & Ensr. Ency. Law 821. Supp. 193; Lynch v. Mayor, etc., 37 N. Y. 5 Connersville v. Merrill (lud. App.), 42 Supp. 798, distinguished. N. E. Rep. 1112. 2 Shelden v. Fox (Kan.), 29 Pac. Rep. Chandler v. People (111.), 43 N. E. Rep. 759 [1892]. 590. 3 McCloud i). City of Columbus (Ohio 7 Townsend v. Tallant, 33 Cal. 45. Sup.), 44 N. E. Rep. 95. 'Basey v. Lavitt, 12 Me. 378. 4 Taylor v. Lambertville, 43 N. J. Eq. 9 Falkner0. Guild, 10 Wis. 563. 135.] BIDS AND BIDDERS. 125 the designated paper was merged into another, taking the name of the latter, it was held sufficient. 1 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. 2 When an officer has discretion he may designate a paper not published in the state. 3 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. 4 A mere advertising-sheet has been held not a newspaper. 5 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. 6 A requirement that the notice be inserted in a paper " printed " in the county is not complied with by inserting it in one . City of New York (N. Y. 9 Peoples Gleason, 121 N. Y. 631 [18901. App.), 29 N. E. Rep. 814; affirming 5 132 ENGINEERING 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 by 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 paid certain others for entering into the combination, is sufficiently specific on general demurrer; the presumption 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. 1 142. 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. 2 Legislative enactment will not be held a ratification of illegal acts in the performance of work unauthorized by a previous act unless the intention so to ratify is apparent and beyond question. 3 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." 4 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. 5 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." 6 143. 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. Rep. 33 [1889]. A collection of cases in Dillon's Munic. 2 Brown v. Mayor. 63 N. Y. [1875]; Corn'ns (4th ed.), 465, note reversing Brown u. Mayor, 3 Hun. 685 ; 3 Kiugsley *>. Brooklyn, supra. but see Sault Ste. Marie v. Van Deusen, 40 4 The^People v The Croton Aq Board Mich. 429; Palmer t>. Tingle- (Ohio), 45 49 Barb. 259 [1867]. N. E. Rep. 313; Mitchel v. Milwaukee, 5 Mulnix v. Mutual Ben. L. Ins. Co. '8 Wis. 92; Pearsall v. Gt. Northern Ry. (Colo.), 46 Pac Rep. 123. Co. (C. C.), 73 Fed. Rep. 933 ; Clinton v. 6 Conlin 0. San Francisco (Cal) 46 Pac. Wnlliker (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 such a contract cannot recover for his work. 1 Municipal or public corporations are not liable for the 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. 8 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 bidder, upon plans and specifications previously adopted, even though the county 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 awarded according to law, the county is not liable for the price or value of the work so undertaken. 4 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. 5 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. 6 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 county, it is generally held that the con- 1 Brady u. Mayor, 68 N. Y. 312 ; McDon- State v. Biddle (Com. PL), 3 Ohio N. P. aid v. Mayor, 68 N. Y. 23 ; Dickinson 0. 173; and see Hovey v. Wyandotte Co. Poughkeepsie, 75 IS". Y. 65; People v. (Knns.\ 44 Pac. Rep. 17; Townsend v. Gleason (N. Y.), 25 N. E. Rep. 4 [1890]. Holt Co. (Neb.), 59 N. W. Rep. 381; Lit- 2 Richardson v County of Grant, 27 tier v. Jayne, 124 111. 123 [1888]. Con- Fed. Rep. 495- Dickinson . 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 build- 121 N. Y. 631 [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 N. E. 275. Rep 814; affirming 5 K Y. Supp. 688. 5 Heidleburgh v. St. Francis Co. (Mo.) 4 Richardson v. Grant Co. (Ind.), 27 Fed. 12 S. W. Rep. 914 [1889]. Rep. 495 [1883] ; Buchanan Edge. Co. . 6 Mutual Life Ins. Co. v. City of N. Y. Walters (Com. PL), 3 Ohio N. 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. 1 There must be no statute which requires an express contract. 2 144. 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, 5 and they should be brought to the notice of contractors in the instructions to bidders, and tho 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. I. 4 In Colorado a different decision was reached, and the court held that "a bill 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. 5 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. 6 In Indiana the act providing that eight hours shall constitute a legal day's work applies only where the employment is by the day. 7 Contractors 1 Madison Co. . Gibbs, 9 Lea (Tenn.) 4 White, J., dissenting in People -y. 383; and see Atkins . Barnstable Co., 97 Beck (Super. Buff.), 30 N. Y. Supp. 473. Mass. 428. 5 In re Eight- Hour Law (Col. Sup.), 39 2 Walcott 0. Lawrence Co., 26 Mo. 272; Pac. Re^. 328; semble, Hellman 0. Shoul- Lehigh Co. . Kleckner, 5 W. & S. (Pa.) ters (Gal.), 44 Pac. Rep. 915. 181; 4 Am. & Eug. Ency. Law 364. State v. McNally (La.), 21 So. Rep. 27. "People . Groton Aq. Bd., 26 Barb. 7 Helphenstine 0. Hartig (Ind. App.), 31 (N. Y.) 240; Wiggins 0. Phila., 2 Brws. N. E. Rep. 845. 44-1. 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, 1 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. 2 In Illinois such a law 3 was held unconstitutional, as a taking of property without due process of law, and as being class legislation. 4 The Rhode 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. 5 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. 6 The Rhode 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. 7 A law which requires railroad companies to pay its employees what is due them within fifteen days after demand therefor,, and imposes damages of 1 Commonwealth v. Isenberg (Quart. Island Pub. Laws, ch. 918, sees. 1, 2. Sess.), 4 Pa. Dist. Rep. 597. 6 State v. Brown, etc. Mfg. Co. (R. I.) 2 Commonwealth u. Isenberg (Quart. [1892J, supra; Leep . St. Louis, etc., R. Sess.), supra; Godcharles v. Wigeman, Co. , 58 Ark. 407. 113 Pa. St. 431; but see, contra, Hancock v. Herein is one feature at least where a Yaden, 121 Ind. 366. corporation doing business, as such, is at a 3 Act approved April 23, 1891. disadvantage with a natural person. 4 Braceville Coal Co. v. People, 147 111. 'State v. Brown, etc., Mfg. Co. (R. I.) 66. [1892], supra/ but see, contra, Braceville 5 State v. Brown, etc., Mfg. Co. (R I.), Coal Co. v. People, 147 111. 66. 9 Am. & Eng. Corp. Cas. 190 ; Rhode 136 ENGINEERING 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. 1 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. 2 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. 3 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. 4 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. 5 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. 6 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. 7 That the states as well as their citi- zens are bound by treaties of the Federal government cannot be doubted. 8 145. Form of Notice and Instructions. The 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. GENERAL INSTRUCTIONS AND CONDITIONS. Notice : Bidders are advised that any and all bids deficient in any of the following requirements may be rejected as informal. 1 San Antonio, etc., R. Co. v. Wilson 5 1 Amer. & Eug. Ency. Law 465, and (Tex. 1892), Amer. & Eng. Corp. Gas. cases cited. 513. s in re Ah Choug . U. S., Pac. Coast L. 2 Peel Splint Coal Co. v. State (W. Va.), J., June 12, 1880. 15 S. E. Rep. 1000. i Chapman v. Toy Long, 4 Sawy. (U. S.) 3 23 Amer. & Eng. Ency. Law 936-7; but 37 ; Baker ?;. Portland, 5 Sawy. (U. S.) 566. see Hancock v. Yarden, 121 Ind. 866, 8 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 Hcllman v. Shoulters 4 Justice White, in People . Warren, 13 (Cal.) 44 Pac. Rep. 915. Miscl. Rep. (N. Y.) 615 [18951. 145.] BIDS AND BIDDERS. 187 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 be 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, aud to possess ample facilities for doing the same, will not be accepted. 4. Bidder must le Qualified. The bidder must satisfy the engineer or commissioner of his ability to furnish the materials and perform the work for which he bids. 5. No 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 office 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 which he is interested. 8. All Persons Interested must be 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, 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 Qualifications. 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. 1 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. 2 A reference in the bid to 46 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. 3 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. 4 A specification for electric lights which stated the candle-power, but failed to name the system, was held suf- iently definite. 5 The omission in a proposal of two items of comparatively insignificant value will not render invalid a bid which is otherwise proper in form. 8 1 Re Marsh, 83 N. Y. 435 [1881] ; State 2 See Wiggins v. Philadelphia, 2 Brews. v. Governor, 22 Wis. 110 [1867] ; Faunan (Pa.) 444; Weed v. Bench, 56 How. Pr. 0. Comm'rs, 21 Ohio St. 311 [1871] ; luter- (N. Y.) 470; Re Marsh, 83 N. Y. 431. state, etc., Co. v. City of Phila. (Pa.), 30 3 Sexton 0. Chicago, 107 111. 323. All. Rep. 383; May v. Detroit, 2 Mich. N. 4 State u. York Co. Comm'rs, 13 Neb. 57. P. 235; State v. Board, 42 Ohio St. 374; 5 Detroit v. Hosmer (Mich.), 44 N. W. but see People v. Contracting Board, 46 Rep 622. Barb. 254 [1865]. 6 State v. York Co. Comm'rs, supra. 148.] BIDS AND BIDDERS. 139 The reasonableness of the first requirement, that corporations, and all parties, 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 &s 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 is in arrears or default is a question that sometimes requires a long time to settle conclusively; and the amount of exnerience 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 suph 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 citv council could not arbitrarily refuse to entertain a bid for city printing because the bidder was not the owner of a newspaper. 2 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. 3 148. 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 1 Douglass v. Commonwealth, 108 Pa. Rep. 414. St. 559. 3 People v. Dorsheimer, 55 How. Pr. 2 Berry . 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, supra. 142 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 148. at a public sale of goods is invalid except in hands of an innocent pur- chaser. 1 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 renders the contract, with the bidder making, it null and void. 2 Any promise of reward to induce another contractor who had intended to bid not to bid renders the contract null and void. 3 Any fraudulent practice, such as collusion between public officers and the contractor, will have the same eifect. 4 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. 5 148^. 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 in consequence. There are cases where conspiracies have been. 1 Atlas National Bank v. Holm(C. C. A.), 4 Nelson -p. New York, 5 N. Y. Supp, 71 Fed. Rep. 489. 688, s. c. 29 N. E. Rep. 814; In re D. & H. 2 15 Amer. & Eng. Ency. Law 1100. C. Co., 8 N. Y. Supp. 352 ; In re Auder- 3 Jennings County Comm'rs v. Verbarg, son, 109 N. Y. 554. 63 Ind. 107 ; Woodworth v. Bennett, 43 b State v. Bruner (Ind.), 35 N. E. Rep, N Y. 273; Gulick v. Ward, 10 N. J. Law 28. 87. 149.] BIDS AND BIDDERS. 148 formed to secure contracts, but the author has found none in which the 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. 1 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 held 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. 2 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 with 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. 3 * So it may be shown in proof of fraud that the bidder had offered to sell materials at prices lower than those stated in his bid. 4 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. 5 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. PL), 23 N. N. E. Rep. 623: and nee McMillen 9. Hoff- Y. Supp 888. man (C. 0.), 75 Fed. Rep. 547. 2 15 Araer. & Eng Ency. Law 1100. 4 Nelson 9. New 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] ; but see contra in Reilly v. '- Nelson 9. New York, supra. The Mayor, 111 N. Y. 473 [1889], s. c. 18 * See Sec. 54, Chap. I., supra 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. 1 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 to stifle competition. 8 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. 3 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 beiu^ 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. 4 * 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. 6 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; 6 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 PREPARING BIDS. 151. Forms to be Used and Formalities to be Observed. 1. Made in Triplicate. All bids must be made in triplicate upon the printed forms obtained at the office of the Engineer, No Street, City of , County of , State of , and must be accompanied by & 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 ^ook v. City of Racine, 49 Wis. 243 4 Breslin. Brown, 24 Ohio St. 565; ac- [1880]. cord Gulick v. Webb (Neb.), 60 N. W. 2 Whalen . Brennan (Neb.). 51 N. W. Rep. 13. Rep. 759; Breslin v. Brown, 24 Ohio St. 6 Peoples Crotoii Aqueduct, 26 Barb. 565. (N. Y.) 240. 3 Flanders v. Wood (Tex.), 18 S. W. 6 Connolly v. Board (N. J.), 30 All. Rep. Rep. 572 [1892]. 548. * See Sec. 148, supra. f Compare Sec. 147, supra, 151.] BIDS 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 1 . Indorsement 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 be 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 1 . Blank Forms. Each bidder must obtain blank forms of proposal, and prepare and submit his proposal thereon. The original drawings named in the 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 the use of the bidders. 6. Proposals must be 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 find Plans. Any bid which does not contain bids for all items for which bids are -invited, 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 1 . Proposal must be 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 2 . 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. S. Bids may not be Withdrawn 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 1 . Bids 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 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 161. 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 be 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 Quantities. 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: PRICE 3,000 cubic yards Kock Excavation $ 5,000 " " Earth " $ 4,000 " " Filling $ 1,000 " " Bubble 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 1 . Estimate of Quantities. 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 0] . 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 which shall apply to and become a part of every estimate received : a. Bidders must determine quantities for themselves. b. 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 1 . Contractor should Make Personal Examination. Before submitting a proposal each bidder should make a careful 151.] BIDS AND BIDDERS. 147 examination of the drawings aud 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 be accepted he will be responsible for any and every error in his proposal resulting from his failure to do so. 13 2 . 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. Quantities 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 the 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 1 . Additions and Changes to be 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 a . Engineer may make Additions, Omissions, and Alterations at Market Price. The successful bidder must understand that the right and privilege 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 EXaiNUERING AND ARCHITECTURAL JURISPRUDENCE. [ 152. the materials or alterations in the work are to be made on a basis of 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. Samples 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, arid 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 1 . 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. Material* furnished by City, State, or Owner. 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- tion 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. 140 of the bids, and not entail too much work or expense upon the contractor, can without doubt be considered reasonable, and within the discretion accorded to public officers by our courts. Sucli requirements are those which insist that proposals shall be made upon printed forms in triplicate and 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 fyids 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. 1 153. 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 necessarily have been previously prepared of the work to be done a 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. 3 154. Full Information as to the Work should Be Furnished. A pro- vision that certain contracts shall be let 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. 5 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 1 Ric- v. Board of Trustees (Cal.), 4.0 Pac. Rep. 622 [1890]; and see Kneeland . Hos- Rep. 551. mer, 20 Wis. 437. 2 Ura/e1 v. Pittsburgh (Pa.), 20 All. Rep. 5 Kneeland v. Furlong, 20 Wis. 437; see 693 [1890]; but see State v. St. Bernard Peeples v. Byrd (Ga.), 25 S. E. Rep. 677; (Ohio), 10 Ohio Cir. Ct. Rep. 74; and and see Otis v. City of Chicago (111. Sup.), Connersville v. Merrill (Ind. App.), 42 N. 43 N. E. Rep. 715; temble, Guaranty & E. Rep. 1112. T. Co. v. Chicago (111. Sup.), 44 N. E. Rep, 3 Ertle v. Leary (Cal.). 46 Pac. Rep. 1. 832 [1896]. 4 Detroit . Hosraer (Mich.), 44 N. W. 150 ENGINEERING 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. 1 It has been held that the bidder can- not be required to furnish his own plans. 2 The notice must provide for plans and specifications. 3 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. 4 Such estimates and specifications must be definite as to quantity as well as to quality of materials required, or the contract will be void. 5 They should be rendered upon a cash basis. 6 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 material, 7 but the notice need not specify that an asphaltum pavement proposed is to be of a certain kind of asphaltum. 8 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. 9 The exact amount of paving composition required per square yard need not be specified. 10 An act that requires the 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. 11 155. 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. 12 It 1 McBrian v. Grand Rapi-ls, 56 Mich. 95; 8 Verdin 0. St. Louis (Mo. Sup ) 27 g and set 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. 9 City of Springfield v. Mathus 124 111 s Wilkinsfj. Detroit, 46 Mich. I'O. 88 [1888]; Vane V City of Evanston (111' 4 City of Detroit A contract awarded upon a comparison of bids which omitted an estimatb of the rock excavation anticipated to be met was, therefore/ held illegal and void. 3 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. 4 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. 5 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- ance of a bid to do rock excavation and other work which omitted the consideration of rock excavation, and undertook to pay what the rock 1 Mutual Life Ins. Co. r. New York (N. City (111.), 33 N E. Rep. 602 ; Ee Mahan, Y. App.), 39 N. E Rep. 386. 20 Hun (N. Y ) 301. 'Merriam on Petition, 84 N. Y. 596 3 Brady v. Mayor, 20 N. Y. 312 [1859]. [1881]; see also Village of Hyde Park v. *Re Marsh, 83 N. Y. 435 [1881]. Carton, 132 111 100 ; Lake Shore R. Co. v. 5 Frame v Felix (Pa.), 31 Atl. Rep. 375. * See Sec. 151, art. 13, supra. 154 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 157. excavation was reasonably worth as extra work, was declared against the policy of the law. 1 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. 2 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. 3 The prices must not be changed when the con- tract is given from those named in the bid, nor provisions made for extra v/ork, 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." 4 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. 5 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. 8 . 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. 7 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 1 McBrian . 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. . Boyd, 2 S. W. [1859]. Rep. 364. 2 Stuart v. Cambridge, 125 Mass. 102 ; 5 Nichols v. State (Tex.), 32 S. W. Rep. Litler v. Jayne (111.), 16 N. E. Rep. 374 452. [1888] ; but see Fleming v. Suspension 6 Kingsley v. Brooklyn, 78 N. Y. 200 Bridge, 92 N. Y. 368 [1883]. [1879]. 3 Tullockfl. Webster County (Neb.), 64 7 Moynahan v. Birkett, 31 N. Y. Supp. N. W. Rep. 705. ?93 Mazet v. Pittsburgh (Pa.), 20 All. Rep. 4 Dickinson v. City of Poughkeepsie, 75 693 [18901. N. Y. 65 [1878] ; and see also 11 Minn, 174, 157.] BIDS AND BIDDERS. 155 part of the work, while a larger and more profit-paying part could be ordered as extras. 1 Thus under 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. 8 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. 3 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 meruit, 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. 4 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. 5 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 other 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. 8 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. 7 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. 8 A board of 1 McBrian v. Grand Rapids, 56 Mich. 95. 6 Bonesteel v. The Mayor, 22 N. Y. 162 2 Parr v. Village of Greenbush, 11 New [I860] ; but see Barkley v. Oregon City York 246; and see also 76 N. Y. 463 ; but (Or.), 33 Pac. Hep. 978. see Bryson v. Johnson Co. (Mo.), 13 S. 7 City of Argentine v. Simmons (Kan.), W Rep. 239 ; McBrian v. Grand Rapids, 37 Pac. Rep. 14 ; Argentine v. Dagett, 37 56 Mich. 95 [1885], and other cases reviewed Pac. Rep. 14; semble Hague v. Philadel- iherein. phia, 48 Pa. St. 527 [1865] ; but see Fuller 3 Re Eager, 46 N. Y. 100. . Grand Rapids (Mich.), 63 N. W. Rep. 4 Abells v. City of Syracuse (Sup.), 40 N. 530. Y. Supp. 233. " 8 Warren v. Chandos (Cal.), 47 Pac. Rep. 5 Nash v. St. Paul, 11 Minn. 174. 132. 156 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [158. public works has 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. 1 If, as is sometimes the 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. 2 158. Right to Make Changes and Alterations Reserved. Whether public officers 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. 8 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. 5 Such contracts are divisible. When a contract has been let for work, a 1 McAllister v. City of Tacoma (Wash.), Rep. 336. 37 Pac. Rep. 447. * McBrian v. Grand Rapids, 56 Mich. 95^ 2 Verdin v. St. Louis (Mo.), 33 S. W. Insley . 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. 5 Gilmore v. City of Utica (K Y. App.), 29- 3 Compau v. Detroit (Mich.), 64 N. W. KE.Rep.841, o^rm^lSN.Y.Supp. 274. 160.] 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 which was done in pursuance of the charter and according to law. 1 When ti 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. 2 It may be reduced by the amount which it may have been increased by reason of fraud or substantial error or irregularity. 3 160. 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. 4 The addition of such a clause, if the sum is made large, enables public 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 was held that they could not tie 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. 5 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 1 Texas Trausp. Co. v. Boyd, 2 S. W. 4 It may be doubted if $500 is an appro- Rep. 364 [1886] ; see also InreMcCormick, priate sum. See Littler v. Jayne (111.), 16 60 Barb. 128 [1870], not fatal to tlie assess- K E. Rep. 374 [1888], where the act was ment. amended, making the sum $2500 instead 2 Merriam in Petition, 84 N. Y. 596 [1881]. of $500, which seems nn opposite extreme. 3 In re Anderson, 17 N. E. Rep. 209 (N. 5 Littler v. Jayne (111.), 16 N. E. Rep. Y. 1888); In re McCorraack, 60 Barb. 128 374 [1888]. 11870]. 158 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 161. estimate,, and that the intention was to pay the prices named for such mate- rials and labor as were actually furnished. 1 161. 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; 3 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. 5 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. 4 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, 5 and cells of a jail have been held to be a part of a public building. 6 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. 7 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. 8 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. 10 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 fN. Y.) 508, 6 Ertle v. Leary (Cal.), 46 Pac. Rep. 1. reversed by Court of Appeals 89 N. Y. 52. 7 Swift v. Mayor, 83 N. Y. 528. 2 City of Trenton . Shaw (N. J.), 10 8 Worthingtou v. Boston (Mass.), 41 Fed. Atl. Rep. 243 [1887]. Rep. 23 [1890] 3 State v. City of Trenton (N. J.), 12 9 Brady v. New York, 55 N. /. Super. Ail Rep. 902 [1888]. Ct. 45; and see Sadler v. Eureka Co. 4 State v. Kern, 51 N. J. Law 259 [1889], Comm'rs., 15 Nev. 39; and Swift v. Mayor, Water; Davenport 0. Kleinschmidt, 13 83 N. Y. 528. Pac. Rep. 249, Water; Frame v. Felix 10 Brady v. New York, 112 N. Y. 480. (Pa.), 31 Atl. Rep. 375 n Littler v. Jayue (111.), 16 N. E. Rep. * Follmer v. Commissioners, 6 Neb. 204. 374 [1888]. UNIVERSITY OP CALIFORNIA, DEPARTMENT OF CIVIL ENGI NEERI NQ 163.] BIDS AND BIDDERS. 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. 3 163. 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. 2 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, 3 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. 4 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. 5 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. 6 Some states hold to the view that such contracts are not prohibited; but the tendency of the courts, according to Judge Dillon, 7 is that the statute prohibits any contract that cannot be advertised or let in the manner it prescribes, and he cites cases 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. 8 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. 9 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 1 Merriaoi in Petition, 84 N. Y. 596 20 All. Rep. 646; accord TLobnTtv. Detroit, [1881]. 17 Mich. 246; Matter of Petition of Dugro' 2 City of Newark v. Bomel (N. J.), 31 50 N. Y. 513; but see Dolan v. Mayor of All. Rep. 408; N. P. Perrine, etc., Co. v. N. Y., 4 Abb. Pr. N. S. (N. Y.) 397. Quackenbush (Cal.), 38 Pac. Rep. 533; 6 Peoples. Van Nort, 65 Barb. (N. Y.) State v. Board of Comm'rs (Kan.), 45 Pac. 331; but see Boon v Utica, 26 N. Y. Supp Rep. 616. 932: and Matter of Eager, 46 N. Y. 100. 3 Verdin v. City of St. Louis (Mo. Sup.), 7 Dillon's Munic. Corp'ns., 467 (4th ed.). 33 S. W. Rep. 480. Burgess, J.. dissenting. 8 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. 5 Silsby Manfg. Co. u. Allentown (Pa.), 160 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. |_ monopoly may be made the subject of a proposal and contract are given below, 'as well as those which are to the contrary. 8 164. 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 in 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. 3 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 for the work, and the contract was let to the low- est bidder, there was actual competition by bids, in compliance with the law requiring the letting of the contract to the lowest bidder. 8 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. 7 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 proposals should 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. 8 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 v. Jefferson City, 21 La. Ann. )ugro, 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 v. Charlton, 23 Wis. 590; Kilvington 0. 3 Worthington a. Boston, 41 Fed. Rep. 23 City of Superior (Wis.), 53 N. W. Rep. 487; [1890]. Re McCormack. 60 Barb. 128; Worthington 4 Kilvington v. City of Superior (Wis.), v. Boston (Mass.), 41 Fed. Rep. 23 [1890]; 53 N. W. Rep. 487. Harlem Gas Co. v. New York, 33 N. Y. 5 Deau v. Charlton, 23 Wis. 590. 309.- Nebraska City v. Nebraska Gas Co., 9 6 State v. Board of Com'rs of Shawnee Neb, 339; Yarold v. Lawrence, 15 Kan. County (Kan.), 45 Pac Rep. 616; seealso 126 People tf.VanNort, 65 Barb. (NY.) 331. Detroit v. Robinson, 38 Mich. 108. 2 State v. Elizabeth, 35 N. J. Law 351. ' State v. Payssan (La.), 17 So. Rep. 481. Boon v. Utlca, 26 N. Y. Supp. 932; Nich- 8 Re Eager, 46 N. Y. 100. olson Pavement Co. v. Painter, 35 Cal; 9 Mulrein c. Kalloch, 61 Cal. 522. Ib5.] BIDS AND BIDDERS. 161 Contracts for work or public undertakings for which 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 held 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. 1 A contract with the only electric-light company in the city with- out advertising was held valid. 2 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. 3 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. 4 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. 5 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 ; 6 nor do contracts for carriage hire of aldermen and councilmen when engaged in public service. 7 165. Conditions and Stipulations as to the Performance and Completion of the Work. I. Work and Materials to be to Satisfaction 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. I I . Inspection 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 1 Harlem Gas Co. v. New York, 33 N. Y. 4 Detwiller v. Mayor, 46 How. Pr. (N. 309; Nebraska City v. Neb. Gas Co., 9 Neb. Y.) 2i8. 339. 5 Wentworth the persons making the same within three days after the contract is awarded. 4 1 . 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 by , 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. 5. 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. 5 1 . Consent of Sureties. Each bid or estimate shall be accompanied by the consent in writing of two householders of the state of , with their respective places of business or residence, to the effect that : 166 ENGINEERING AND ARCHITECTURAL 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 2 . 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 works 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. The 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. 1 If he has neglected 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 that 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. 2 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. 3 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 awarded. 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. 4 * 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, 5 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 1 May v. Detroit, 2 Mich. N. P. 235. and see also Lloyd's Law of Building and 2 Rabling v. Board (Ind.), 40 N. E. Rep. Buildings. 93. 1079 ; semble Smith v. Philadelphia, 2 5 Cotter v. Casteel (Tex,. Civ. App.), 37 Brews. (Pa.) 443. S. W. Rep. 791. 3 Selpho v. City of Brooklyn (Sup.), 39 6 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, supra. 168 ENGINEERING 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. 1 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. 2 When the act provides that the bidder whose bid is accepted and who fails to furnish proper security " within five days after written notice " that 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. 4 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. 5 169. 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. 6 When the statute requires that each bid " shall be accom- 1 Village, of Morgan Park v. Grahan 34 Atl. Rep. 774. (111.), 26 N. E. Rep. 1085 [.1891]. 5 City of Springfield 0. Weaver (Mo. 2 Kimball v. Hewitt, 2 N. Y. Supp. 697 Sup.), 37 S. W. Rep. 509. I* 888 ]- 6 State v. Governor, 22 Wis. 110 [1867]; 3 Erwing . New York, 16 N. Y. Supp. State v. Bartley(Neb.). 70 N. W. Rep. 367; 612 [1891] ;s^a:s0Mitchlerfl. Easton(Pa.), and see Roberts v. Brett. 6 C. B. N. S. 23 Atl. Rep. 1109. 635 ; Stafford v. Lowe, 16 Johns (N. Y-> 4 Lindsey v Rockwall County (Tex.V 30 67 : Cremer . Higginsou, 1 Mason C. C. 8. W. Rep. 380; Willson v. Baltimore (Md.), R 323, 368. 170.] BIDS AND BIDDERS. 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. 1 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 though the lowest bidder did offer other securities. 3 The bid must conform to the form of the proposal required. 3 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. 4 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. 5 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 K 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. 6 * THE AWABD AND FINAL EXECUTION OF THE CONTRACT. ACCEPTANCE OP THE PROPOSAL. 170. Information to be Furnished and Conditions 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 names of the members 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 Corporations. 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 1 State v. Board of Ed., 42 Ohio St. 374. 4 Farman v. Comm'rs of Darke Co., 21 2 Adams v. Ives, 63 N. Y. 650 [1875]. Ohio St. 311 [1871]. 3 Wiggins v Philadelphia, 2 Brewster 5 Adams . 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 'Peoples. Contracting Board, 46 BarU (Md.), 34 All. 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 mubf, 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. V. 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. Right 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 Commissioners) Council) or Board. 171. Acceptance of Proposal and Execution of Contract. Right to Reject Bids. When the statute does riot 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. 1 They must not abuse the discretionary power conferred, and their acts must be free from fraud. 8 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. 3 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 9. Brooklyn. 5 Abb. N. Gas. Rep. 1081; Shefbaur v. Board (N. Y.), 31 . Swords, 1 E. D. Smith, 609 and see Reusch v. Amer. Brew. Ass'n, 44 9852]; see also Reusch v. Amer. Brewing La. Ann. 1111, and supra. o. (La.), 11 So. Rep. 719. 6 Htickstein v, Kelly & Jones (Pa. Sup.), 5 Leskie v. Haseltine (Pa. Sup.), 25 Atl. 25 Ail. Rep. 747. Rep. 886; State v. Bd. of Ed., 42 Ohio St: 7 Wood's Master and Servant (2d ed.) 374 ; and see Spencer v. Harding, L. R. 5 103; Palmer v. Haverhill, 98 Mass. 487, C P. 561. in which the contractor was tl.e lowest 3 Doyle -0. Dusenberg, 74 Mich. 79. bidder, but all bids were rejected, and it * McNeil u. Boston Chamber of Com- was held he could not recover ; Topping v. merce (Mass.), 28 N. E. Rep. 245 [1891]. Swords, 1 E. D. S. (N. Y.) 609; Buck v. 5 Roscoe's Digest of Building Cases 48; Amidon, 41 How. Pr. (N. Y.) 376 ; Noury and see Allen v. Yaxall, 1 C. & K. 315 ; . Lord, 2 Keyes (N. Y.) 617. 194 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 188. If a contractor will protect himself 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. 1 Acceptance of a bid has been inferred and a contract implied from an owner'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. 2 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. 3 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. 4 An intimation in the written acceptance of a tender that a contract will be 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. 5 * If, however, it can be gathered from the tender and 1 2 The Engineering Magazine 482. 5 Lewis . Brass, L. R. 3 Q. B. D. 667; 2 Pauling v. Pontifex, 20 Law Times 126 but see Lefurgy v. Stewart (Sup.), 23 N. Y. [1852]. Supp 537, where the price of stone named 3 Burch v. Hotel Co., 7 Mo. App. 583. in bid was held to be the fair and reason- 4 Doyle . Dusenburg (Mich.), 74 Mich. able value of the stone, coming precisely 79 [1889]. within the bid. * See also Sec. 183, supra. [ 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. 1 When proposals for a contract are in writing and executed by the parties, /. e. y 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. 3 When, however, the document 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 the- company to execute the contract, or recover from it the loss he had sustained in preparing to do the work. 3 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. 4 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. 5 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 v. Fetch, 10 Ex. 611. 4 Woods Law of Master and Servant (2d 2 Pratt v. Hudson Hirer R. Co., 21 N. Y. ed.) 164; citing Windhorst v. Deeley, 2 C. 305 [I860] ; and see Highland Co. v. B. 253. Rhoades, 26 Ohio St. 411. 6 Verm v. Commissioners, 32 Beav. 490 3 Jackson u The N. W. Ry. Co., 1 Hall [1863]. f Sees. 189-199 are omitted. PART III. ENGINEER'S AND ARCHITECTS EMPLOYMENT. CHAPTER VIII. ENGAGEMENT OR EMPLOYMENT OF ENGINEER OR ARCHITECT. PERFORMANCE OF SERVICE, TERM OF SERVICE, DISMISSAL OR DISCHARGE, AND EXTRA WORK. 200. 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. 1 201. 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, 2 and a contract for a year, unless sooner terminated, does not mean that either party can terminate the service without just cause. 3 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. 4 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. 5 1 De Briar . Minturn, 1 Cal. 450 ; Niag- 111. App. 226; Daveny v. Shattuck, 9 Daly ara F. Ins. Co. j. Whittaker, 21 Wis. 329; (N. Y.) 66. Donaldson v. Williams, 1 Cr & M. 345; 3 De Briar v. Minturn, supra; Niagara Mackay v. Ford, 29 L. J. Ex. 404. F. Ins. Co. v. Whittaker, supra. 2 Spring v. Ansonia Clock Co., 24 Hun 4 Penna. R Co. v. Dolan (Ind. App.), 32 (N. Y.) 175; Glyn v. Miner, 27 N. Y. N. E. Rep. 802. Supp. 341; Evans v. Bennett, 7 Wis. 404; 5 Brighton t. Lake Shore & M. S. Ry. Alexis Stoneware Mfg. Co. v. Young, 59 Co. (Mich.), 61 N.W. Rep. 550; 70 N. W. 196 201.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 197 A contract of employment for an indefinite period may be terminated any time by either party, 1 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. 3 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, 4 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. 5 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; 6 but the presumption is not conclusive in the absence of other evidence. It alone, will not fix the period. 7 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. 8 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. 9 The terms of a yearly contract for services will be Rep. 432; Penna. R. Co. v. Dolan, supra; (Mich.), 71 N. W. Rep. 148 [1897]. and nee Pierce v. Term. C. I. & R. Co. 'Kellogg v. Citizens' Ins. Co. (Wis.), 69 (Aln.), 19 So. Rep. 22. N. W. Rep. 362; 14 Amer. & Eng. Ency. 1 Greenburg 9. Early, 23 N. Y. Supp. Law 762. 1009. 7 14 Amer. & Eng. Ency. Law 762; 2 Campbell v. Jimenes, 27 N. Y. Supp. Fullers. Peninsular, etc., Wks. (Mich.), 351. 69 N. W. Rep. 492; Haney 9. Caldwell. Lord 9. Goldberg (Cal.), 22 Pac. Rep. 35 Ark. 156; Martin v. 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. 9 Ah How 9. Furth (Wash.), 43 Pac. 5 Stearns 9. Lake Shore & M. S. Ry. Co. Rep. 639. *See Sees. 124-125, Parol Evidence, supra. \ See Statute of Frauds, Sec. 105, supra. 198 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 202. 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. 1 202. 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. 203. 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 his 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, 8 or to work at unseasonable hours, 3 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, 4 or that involves no serious consequences and which is not willful, in the sense of being perverse, insubordinate, or unreasonable, which question is for a jury; 5 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, 6 or where the employer exhibits impatience and irritation toward the employee without just cause, 7 is not sufficient cause for discharging the employee. If the servant is disrespectful in his conduct, 8 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, 8 or he uses obscene and improper language while attending to his duties, especially when the owner does not use such language, 10 or his con- duct towards agents sent by his employer to inspect his work is rude and reprehensible, 11 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 1 Meavs v. O'Donoghue, 58 111. App. 345. 7 Forsyth v. Hastings, 27 Vt. 646 [1855]; * Jacquot-0. Bourra, 7 "Dowl. 348. Weaver . Halsey, 1 111. App. 558; 14 3 Koplitz v. Powell, 56 Wis. 671. Am. & Eng. Ency. Law 789. 4 Hamilton v. Lowe (Ind.), 43 N. E. * Railey v. Lanalian, 34 La. Ann. 426. Rep. 873. 9 Leatherby v. Odell, 7 Fed. Rep. 642. 5 Cases collected, 14 Amer. & Eng. 10 Weaver v. Halsey, 1 111. App. 558; 14 Ency. Law 789 ; see Pape t>. Lathrop Am. & Eng. Ency. Luw 789. . Woods, 1 Watts & S. 265; N. W. Rep. 133. Trotman v. Dunn, 4 Camp. 211. 2 Vinson . Kelly (Ga.), 25 S. E. Rep. "Singer. McCormick, 4 Watts & S. 30. 265-266; Hortou v. McMurtry, 5 Hurst & 3 McCain v. Desnoyers, 2 Mo. App. Rep. N. 667. 896. . 13 Engel v. Schooherr, 12 Daly (N. Y.) 4 Berriman v. Marvin, 59 111. App. 440. 417. 5 14 Amer. & Eug. Ency. Law 783. u Bogg v. Pearse, 10 C. B. 534. 6 Brown v. Croft. 6 C. & P. 16, note; 15 Smith's Master and Servant 143, and Libhart v. Wood, 1 Watts & S. 265. cases cited; Drayton v. Reid, 5 Daly (N. 7 Smith's Master and Servant 143. Y.) 442. 8 Cunningham v. Foublanque, 6 C. & 18 14 Amer. & Eng. Ency. Law 789. P. 49. 17 Smith's Master and Servant 144. 9 Andrews v. Garstin, 31 L. J. C. P. 15. 18 Cases in 14 Amer. & Eng. Ency. Law 10 Nolan v. Thompson, 11 Daly (N. Y.) 788. 314; Jo inson v. Gorman, 30 Ga. 612. 19 14 Ainer. & Eng. Ency. Law 788. 200 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 205, tling or disclosing to others the employer's business and secrets/ or disclos- ing the accounts of one company to another, a or revealing professional secrets of the employer, 3 or the act of advising or inducing co-employees or apprentices to quit the master's service, 4 or the act of plundering or poaching on the premises on which a workman is at work, 6 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, 8 or seeking to secure the patronage of the employer's clients or patrons to- himself, 7 or entering into negotiations for carrying on the same business as the employer is engaged in, 8 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, 9 and when he dealt with certain merchants or tradesmen named by his employer. 10 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. 11 His dissatisfaction must be genuine." If the employer admits the contract of employment, the burden is on him to show cause for discharge. 1 * An employee may have a right of action against a third person wha maliciously procures his discharge, though the employer violates no legal duty in discharging him. 14 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. 15 A " boycott " by the members of trades unions or assemblies is unlawful, and may be enjoined by a court of equity. 16 205. Habitual Negligence, 17 or Conduct Calculated to Injure Master's Business. 17 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 absence of an overseer of a plantation for one day (presumably without good excuse), war- 1 Beeston v. Caller, 2 C. & P. 607; Dray- 12 Crawford v. Mail and Express Pub. ten 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. 9. Armstrong, 7 A. & E. 557. 226. 2 The East Anglian Ry. Co. . Lythgoe, 13 Mulligan 9. Sligh Fur. Co. (Mich.). 70 2 L. M. & P. 221; and see Davenport v. N. W. Rep. 133 [1897] As to meaning of Hulrae (Super.), 32 K Y. Supp 803. "incompatibility" and " unsuitableness," :1 Mercer v. Whall, 5 Q. B. 447. see Gray 9. Sheppard (N. Y. App.), 41 N. 4 Turner v Robinson, 5 B. & Ad. 789. E. Rep. 500. 6 Read v. Dunsmore, 9 C. & P. 588. " Dannerberg v. Ashley, 10 Ohio Cir. Amor 9. Fearon, 9 A. & E. 548. Ct. Rep. 558. 7 Mercer 9. Whall, 5 Q B. 447 15 Mattison 9. Lake Shore & M. S. Ry. s Hobson v. Cowley, 27 L. J. Exc. 205. Co. (Com. PI.), 2 Ohio N. P. 276. 9 Many cases, 14 Arner. & Eng. Ency, 16 Oxley Stave Co. 9. Coopers' Inter- Law 789. national Union of North America (C. C.), 10 14 Amer. & Eng. Ency. Law 790. 72 Fed. Rep. 695. 11 Smith v. Robson (N. Y. App.), 42 N. " Newmnn v. Reagan, 63 Ga. 755; Callo E. Rep. 677. 9. Brouncker, 4 C. & P. 518. 206.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 201 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. 3 The absence of a teacher for two days after vacation, no injury having been shown to result, will not justify his discharge. 3 Illness for considerable time will release the employer from his con- tract of employment. 4 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; 5 and imprisonment for two weeks was held sufficient cause. 8 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. 7 The same was held of a doorkeeper to the finance department, of New York City, who was absent two years. 8 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. 9 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. 10 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. 11 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. 12 206. 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. 13 If the employee be unskillful or in- competent in the duties or work he has undertaken to perform, then he has, 1 Ford v. Danks, 16 La. Ann. 119; and 8 Devlin v. Mayor, 41 Hun (N. Y.) 281. see Shaver v. Ingraham, 58 Mich. 649; and 9 O'Leary v. Bd. of Ed., 93 N. Y. 541. Drayton v. Reid, 5 Daly (NY.) 442; Shoe- 10 Stauton . Bell, 2 Hawks (N. C.) 145; maker v Acker (Gal.), 48 Pac. Rep. 62. Wise v. Wilson, 1 C. & K. 662. See Wehrli v. 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. 12 Prior . Flagler (Com. PI.), 34 N. Y. Miller v. Gidier. 36 La. Ann. 201. Supp. 152. Leopold v. Salkey, 89 Ills. 413. 13 Austee v. Ober, 26 Mo. App. 665. Cuckson v. Stones, 28 L. J. Q. B. 25. 202 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 207. not fulfilled his contract, and the employer will be justified in terminating the contract. 1 Yet unskillfulness on the part of an employee does not pre- vent him from recovering the real value of his services. 2 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 performance 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. 3 207. 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, 4 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. 5 If the employee has been guilty of tortious or negligent acts, it seems that may warrant a subsequent discharge. 6 Retention of service and payment of wages without protest, after knowledge of defective work done by an employee, is prima facie evidence of a waiver of the right to dis- charge him, or deduct from his wages on that account. 7 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. 8 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. 9 A person cannot, by a decree of court, be compelled to retain another in his service. 10 208. 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. ll A letter to a railroad 1 Leatherberry v. Odell, 7 Fed. Rep. 7 Tickler v. Andrae Mfg. Co. (Wis.), 71 641; flarmer v. Cornelius, 28 L. J. C. P. N. W. Rep. 292. 85; Jenkins v. Betham, 15 C. B. 188. 8 McMurray . Boyd (Ark.), 25 S. W. 5 Cases, 14 Amer. & Eng. Ency. Law Rep. 505; Leatherberry v. Odell (N. C.), 7 781. Fed. Rep. 642. 3 People v. Campbell, 82 N. Y. 247 9 Alexis St. Mfg. Co. v. Young, 59 111. [1880]. App. 226. 4 14 Amer. & Eng. Ency. Law 778-791. 10 Reid Ice Cream Co. v. Stephens, 62 6 Hamilton v. Love (Ind.), 43 N. E. Rep. 111. App. 334. 873. n Jones v. Graham, etc., Co., 51 Mich. 6 Stoddard . Treadwell, 26 Cal. 294. 539. 209.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 203 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 please telegraph me of its transmission. Please confer with M., the V. P., in turning over 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. 1 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. 2 An employee, in answer to a letter of his employer discharging him, first wrote that he accepted " your 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. 8 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; 4 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. 5 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. 5 209. 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. 5 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. 6 1 The Cumberland & Pa. K. R. Co. v. 4 Lathrop v. Visitor Ptg. Co. (R. I.), 30 Slack, 45 Md. 161 [1876]; and see Pinet v. Atl. Rep. 964. Montague (Mich.), 61 N. W. Rep. 876. 5 14 Amer. & Eug. Ency. Law 795-7. 2 Klaw v. Enrich. 31 N. Y. Supp. 773. 6 Rosen i erger v. Pacific Coast Ry. Co. 3 Martin v. New York Life Ins. Co. (N. (Cal.), 43 Pac. Rep. 963; 14 Amer. & Eng. Y. App.), 42 N. E. Rep. 416. Ency. Law 795-7. 204 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 209. A person who has been wrongfully discharged is bound only to seek like employment to prevent damages being reduced by his remaining idle. 1 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. 2 He need not visit other communities in quest for work, 8 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. 3 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. 4 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; 5 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 reasonably have earned, since his discharge. 7 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, 8 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 $1500 was dis- charged before he had completed the work, and after he had been paid $500, a verdict for $2250, in an action by him for breach of contract, is excessive. 1 * If the compensation of the employee was not agreed upon, he will be entitled to a reasonable sum for the services performed. 11 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. 13 * 1 Fuchs v. Koerner (N. Y.), The Reptr. App.), 46 N. E. Rep. 154. Feb. 1 [1888]; Amer. & Eng. Ency. Law 7 Hamilton v. Love (Ind. Sup.) 43 N. E. Vol. 5, p. 35, iml Vol. 14, pp. 795-7. Rep. 873; Efron v. Clayton (Tex.), 35 8. 2 14 Amer. & Eng. Eucy. Law 796; W. Rep. 424. Briscoe . Litt (Sup ), 42 N. Y. Supp. 908; 8 Zender v. Seliger-Toothill Co. (Sup.), Chisholm v. Bankers Life Assur. Co. 39 N. Y. Supp. 346. (Mich.), 70 N. W. Rep. 415 [1897]. 9 Hamilton D. Love (Ind. Sup.), 43 N. E. 3 Tickler v. Andrae Mfg. Co. (Wis.), 70 Rep. 873: Babcock v. Appleton Mf- Co, N. W. Rep. 292; 14 Amer. & Eug. Eucy. (Wis.), 67 N. W Rep 33; Worthinfton v. Law 796. Oak & H. P. Imp. Co. (Iowa), 69 N. W. 4 Stone . Vimont, 7 Mo. App. 277; Rep. 258. Harrington v. Gies, 45 Mich. 374; 14 Amer. 10 Missouri Iron Wks. v. Rivers Arch. & Eng. Ency. Law 796. Co , 59 111. App. 545. 5 McMullan v. Dickinson Co. (Minn.), 65 n Howard v. Gobel, 62 111. App. 497. N. W. Rep. 661. 12 Schanzenbach v. Brough, 58 111. App. 6 Hamilton D. Love (Ind. Sup.), 43 N. E. 526. Rep. 873; and see Pape V. Lathrop (Ind. * See Sec. 90, supra. 211.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 205 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. 1 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. 3 210. 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 his powers enlarged without any stipulation that he is to receive additional compensation, the agent or employee cannot recover extra wages for his additional services. 3 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. 4 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. 5 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. 6 * 211. Employment of Engineer or Architect in a Professional Capacity. 7 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. 7 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 the established and universal custom 1 William Farr Co. 9. Kiraebrough(Ky.), 28 S. W. Rep. 745, Superintendent of 34 S. W. Rep. 528. Buildings. 2 Stone v. Bancroft (Cal.), 44 Pac. Rep. 4 14 A.mer. & Eng. Ency. Law 772; and 1069. see Forster v. Green (Micb.), 69 KW. Rep. As to Recovery for Services when term of 647; Voorhees v. Combs (N. J.), 4 Vr. 494. service has not been completed, Remedies 6 Averill . United States, 14 Ct. of 01. of Servants, and Breach or Abandonment 200; and see People v. Beck (N. Y. App.), by Servant, see 14 Amer. & Eng. Ency. 39 K E. Rep. 80. Law 775, 779. 6 Maas v. Hernandez (La.), 19 So. Rep. 3 Morean 9. Dumagene, 20 La. Ann. 230 269; but we Dull 9. Bramhall, 43111. 364. [1868]; Carrere v. Dun, 18 Misc. Rep. 18 7 See Emden's Law of Building, chap. [1896]; Chamberlain 9. Kansas City (Mo.), * See Sec. 225, infra. 206 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 212. 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, 1 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; a 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. 3 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. 4 212. What Constitutes an Employment of an Engineer or Architect?- This is Often a Difficult Question. 5 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 bid? 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 examiners 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. 6 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 4 Vigeant v. Scully, 20 Brad. 437: see Cases (3d ed.) 1-10, English; Lloyd's Law Oilman v. Stevens, 54 How. Pr. (N. Y.) of Building, chap, ii ; Clark's Architect, 197. etc., Before the Law, chaps, i and ii ; 29 6 Kutts v. Pelby, 20 Pick. 65 [1838]. Amer. & Eng. Ency. Law 875-890. See 6 Moflfat . Dickson, 13 C. B. 534 [1853]; Kutts v. Pelby, 20 Pick. (Mass.) 65; and Moflat v. Laurie, 15 C. B. 583; Leake's Driscoll v. School Dist., 61 Iowa 426. Digest of Contracis 640-641; Ada St. M. E. 1 Nourry v. Lord, 3 N. Y. App. 392. Ch. . Garnsey, 66 111. 132; Addison on 2 Utley v. Burns, 70111. 162 [1873]; and Contracts 678; but see Walsh v. St. Louis see Marcotte v. Beaupre, 15 Minn. 152. Exposition, 90 Mo. 459, 16 Mo. App. 502, 3 Vigeant . Scully, 20 Brad. 437 [1886J. affirmed. ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 207 the board of supervisors refused to open any of the bids received, and rejected plaintiffs 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 plaintiffs plans and that, the condition upon which plain- tiff was entitled to compensation never having happened, he could not recover; 1 but upon appeal it was held that the plans had been adopted within the meaning of the act, and that the plaintiff could recover. 2 The word " received" as used was held not to include the acceptance of a bid. a 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; 4 and when it was further stipulated that no award need be made 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. 6 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; 6 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," 7 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. 8 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. 9 When a committee had been authorized by a resolution of a board of 1 Hall 0. County of Los Angeles (Cal.), inal cost of advertising. 13 Pac. Ren. 854. 6 Woods' Master and Servant (2d ed.) 2 Hall v. Los Angeles, 74 Cal. 502 [1888]. 103. 3 Hall 0. Los Angeles, supra. n Romeyn 0. Sickles, 108 K Y. 650 4 Moffat V. Dickson, 22 L. J. C. P. 265 [1888]. [1853). 8 Moffatt 0. Laurie, 15 C. B. 582 [1855.] 5 Donaldson 0. Detroit Museum of Art 9 Allen 0. Bowman, 7 Mo. App. 29; Nel- (Micb.) 40 N. W. Rep. 33 [1888]. A just son 0. Spooner, 2 F. & F. 613; Moffatt v. rule, perhaps, in law, but it, affords no Dickson, 13 C. B. 543; Smithmeyer 0. protection to the architectural profession, United States, 147 U. S. 342; Tilley 0. from whom a society could secure many Cook Co., 103 U. S. 155; and see Chicago designs and practical hints and beautiful 0. Tilley, 103 U. S. 146; Dunton 0. Cham- features for a structure for the mere nom- berlain, 1 Bradw. 361. 208 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 212. 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. 1 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. 2 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. 3 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. 4 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. 5 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 1 Driscoll v. The Ind. School Disk, 64 Spooner, 2 F. & F. 613. Iowa 426 [1883]. 4 Ada St. M. E. Ch. . Garnsey, 66 111. 2 Nourry v. Lord, 2 Keyes 617 [1866]. 132 [1872]; Marsh . Astoria, etc., 27 Ills. 3 Kutts v. Pelby, 20 Pick. 65 [1838]; and 421. see Shipman v. State, 42 Wis. 377; Mar- 5 Walsh v. St. Louis Ex. & Mus. Hall cotte v. Beaupre, 15 Minn. 152; Nelson v. Assn., 90 Mo. 459 [1886]. 213.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 209 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 he 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. 1 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. a 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. 3 213. 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, the latter of which would have been five per cent, if the architect had the superintendence, was held to be a sufficient 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 a good and sufficient 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 1 Marquis v. Lauretson (la.), 40 N. W. 962; and see Scott v. Maier, 56 Mich. 514; Rep. 73 [1888]. Chicago v. Tilley, 13 Otto 146; Lambert 9 Ebdy v. McGowan, Roscoe's Digest v. Sauford, 55 Conn. 437. Bldg. Cases 134; and see Clark's Architect, 4 Smith v. Dickey, 74 Tex. 61 [1889], see etc., before the Law, chap. viii. Nelson v. Spooner, 2 F. & F. 613. 8 Havens v. Donahue (Gal.), 43Pac. Rep. 210 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 214. 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. 1 * 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 could 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. 2 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. 3 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. 4 214. Recovery for Services Rendered. The obligation of paying for the 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 to 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, 5 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 1 Board of Com'rs. *>. Bunting (Ind.), 12 S. W. 745; and see Walsh v. St. Louis N. E. Rep. 151 [1887]. Exposition, 101 Mo. 534. 2 Tilley v. Co. of Cook, 103 U. S. 955 4 Wilson v. Bauinan, 80 111. 493 [1875]. [1880]. Compare First Unit. Soc. . Faulk- 5 Webb v. School, 3 Phila. (Pa.) 125 ner. 91 U. S. 415. [1858]. 8 Chamberlain v. Kansas City (Mo.), 28 * See Sec. 39. 214.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 211 his uniting in the examination of accounts of the architects and in settling the balance due, are sufficient evidence to support the judgment. 1 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. 2 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, 3 and not according to the schedule of charges of the American Institute of Archi- tects, especially when the architect has accepted a salary. 4 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 reasonable cost. 5 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 E. (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. 7 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 1 Beach v. Raymond, 2 E. D. S. (K Y.) 342 ; but see Oilman . Stevens, 54 How. 496 [1854]. Pr. (K Y.) 197. 2 Tilly fl. Cook, 13 Otto 155; Lloyd's Law 6 Lambert v. Sanford, 55 onn. 437 of Building, etc., 11, citing Eddy v. Me- [1887]; and see Roeder v. Bensberg, 6 Mo. Gowan, not reported ; but see Knight v. App. 445; Sbipman D. State, 43 Wis. 381; Norris, 13 Minn. 473; Irving v. Morrison, Irving a. Morrison, 27 TL C. C. P. 242; 37 C. P. (Upper Canada) 242 ; and Mulli- Maack v. Schneider, 51 Mo. App. 92. gan v Mulligan, 18 Ln. Ann. 20, contra. Agreements are sometimes made forbid- 3 Scott v. Muier, 56 Micb. 554 [1885]; ding or preventing any extra charges. semble, Marcotle v. Beaupre, 15 Minn. 152; Baltimore Gem, Co. v. Coburn, 7 Md. 202; Dull v. Bramhall, 49 111. 364, whfit is rea- Abbott v. Gatcb, 13 Md. 314. sonable; Lloyd's Law of Building (2d 6 Nourry v. Lord, 2 Keyes R. 617 [18661. ed.), 8. 7 Rennie D. Wyun, 4 Exch. 691 [1849]. 4 Suiitbmeyer v. United States, 147 U. S. * See Sec. 291, infra. 212 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 214. at work, if the company had the benefit of his services knowingly, they are liable to him for their value. 1 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. 8 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 recover for his services and expenditures on the company's refusal to award Mm 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. 2 Under a charge for services, an engineer may prove and recover for ser- vices whether performed by himself or an assistant, or by both, unless it appears by 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. 3 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- vants of the company. 4 'Moline W. P. & Mfg. Co. v. Nichols, 26 111. 90 [1861]. 2 Wilson v. Kinss Co. El. R. Co,, 21 N. E. Rep. 1015 [1889]. 3 Leet v. Wilson, 24 Cal. 398 [1864], 4 Gillis0. Duluth, etc., R. Co. (Minn.), 25 N. W. Rep. 603 ; New Orleans, etc., R. Co. v. Reese, 61 Miss. 581. CHAPTER IX. PROPERTY OF ENGINEERS OR ARCHITECTS IN DESIGNS AND INVENTIONS. OWNERSHIP OF PLANS, SPECIFICATIONS, AND DRAWINGS. CORPOREAL AND INCORPOREAL PROPERTY RIGHTS. 215. 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 an 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. 1 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. 2 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 where 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 the? ownership of the plans was in the architect. To constitute larceny the- wrongful 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> 1 Ebdy v. McGowan, Ct. of Exch., Nov. Architect, etc., Before the Law 129. 17, 1870, The Times; s. c., Roscoe's Digest 2 Dalloz 1871, 2, 83; 1849, 2, 171. of Building Cases 134; and see Clark's 213 214 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE [ 216. 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. 1 This case further held that the architect might show the existence of a universal custom among architects and builders to the effect that the plans and specifications belonged to the architect by whom they were made. 2 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. 3 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 adopted. 4 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. 5 216. Incorporeal Property in Architectural and Engineering Designs. Copyright and Patent-right. However doubtful the ownership of the plans themselves may be i. e., the corporeal embodyment 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 building from them, would be a tort to the architect's natural property in his 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 1 Lumsford v. Dietrich, 86 Ala. 250 360; but see Watson v. Ambergate, 15 Jur. S888] ; see also Marcotte . Beaupre, 15 448. inn. 152. 5 Mather . 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 v. Boston & L. R. S. 162. Co., 128 Mass. 221 ; and see Clark's Ar- 3 Walsh v. St. Louis Exp'n, 101 Mo. 534, chitect, etc., Before the Law, 26. 4 Adams Exp. Co. t. Egbert, 36 Pa. St. 216.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 215 engineer's or architect's cultivated taste and training, the other perhaps of an artist's perception, taste, and genius. 1 .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 the 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 and exclusive right to his own creation, and it becomes the common property of a jealous and selfish public. 2 An author may give away a copy of his manuscript, 3 he may send it as a communication to another, as in the case of a letter to a friend, 4 he may permit a copy to be made, 5 he may lecture from it in public or in the class-room, 6 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. 7 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. 8 Nor is the delivery of copies of a report to the state, without any distribution thereof, a publica- tion. 9 The sale of a book is prim a facie a publication. 10 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 copyright. 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 protection of the government in whose territory he expects- to sell it. 12 The same holds with regard to all intellectual productions which have 1 N. E. Monumental Co. v. Johnson peal, 107 Pa. St. 221 [1884] ; Abernetby . Dutton, supra. 216 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 216. 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, 3 music, and art, and even the letters a man has written, are within the protection of the 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. 4 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. 6 The passage by Congress of the copyright statutes has not abrogated the common-law right of an author to his unpublished manuscript. 6 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. 7 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. 8 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. 9 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. 1 Rees . Pettizer, 75 111. 475. Fed. Rep. 196. 2 Falkc. Donaldson (C. C.), 57 Fed. Rep. 7 Turner v. Robinson, 10 Irish Ch. 516 32. [I860]; Copiuger's Law of Copyright 382, 3 Aronson v. Baker (N. J.), 12 All. Rep. 383. 177 [1888]. 8 Werckmeister v. Springer Lithograph 4 Drone's 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. Werck- Rep. 196. meister (C. C. A.), 72 Fed. Rep. 54. 5 Amer. & Eng. Ency. Law 148-150. 9 Prof. Largdell in his lectures at Har- 6 Press Pub. Co. v. Monroe (C. C. A.), 73 vard; semble, Pope v. Curie, 2 Atk. 346. 218.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 217 217. 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 frorn it, or use it for a different purpose from that for which the artist sold it; 1 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. 2 218, 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 bis work on Law of Copyright, is authority for the statement that in the English act the word drawing includes architectural design. 3 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. 4 The word chart has been held not to include sheets of paper exhibiting tabulated or methodically arranged information. The courts distinguished 5 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, 6 and art designs are a subject of copyright. 7 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- 1 Werokmeister v. Springer Lithograph 3 Copinger 's Law of Copyright (2d ed.) Co., 63 Fed. Rep. 808; Copinger's Law of 389. Copyright 388. 4 Drone on Law of Copyright 174. 2 N. E. Monument Co. -M. Johnson (Pa.), 6 Taylor v. Oilman, 24 Fed. Rep. 632. 22 All. Rep. 974; semble, Blunt v. Pat- 6 Deury v. Ewing, 1 Bond (U. 8.) 40. ten, 2 Paines (C. C. Rep.) 397. 7 Grace 0. Newman, L. R. 19 Eq. 623. ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 219. neer. 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 imprinted book, which existed only in the manuscript, has been held the subject of copyright. 1 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. 3 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 not 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, 3 but a later statute grants copyright protection to photographs and to the negatives thereof, and such an act has been held not unconstitutional. 4 A photographer has no right to make copies of a customer's photograph without his permission, 5 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. 5 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. 6 219. 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- 1 Eoberts t>. Myers, 23 Law Rep. 396 ; Fed. Rep. 693; see cases of copyrighted but see Jewelers' Merc. Agcy. v. Jewelers' photograph cited in Springer Lith. Co. v. W. Pub. Co., 32 N. Y. Supp. 41. Fnlk (C. C. A.), 59 Fed Rep. 707. 2 Drone on Copyright 142. , 5 Corliss v. E. W. Walker Co. (C. C.), 64 3 Wood v. Abbott, 5 Bktchf. (U. S.) 325. Fed Rep. 280. 4 Sarony v. Burrow Giles Lith. Co., 17 6 Kilburn v. Ingersol (C. C.), 67 Fed, Fed. Rep. 591; Schreiber v. Thornton, 17 Rep. 46. 219.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 219 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. 1 Such an agreement has been held not against public policy. 8 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 ; 3 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. 4 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. 6 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, and which are neces- sary for the immediate manufacture of the carpet designed, and its subsequent reproduction. 5 The employer has recovered such receipt-books in trover from the employee. 8 An owner of a process or invention for manufacturing an article, which was kept secret from all but confidential employees, may restrain former 1 Cases collected in 4 Amer. & Eng. Ency. Supp. 190. Law 178; Smith's Master and Servant 4 Baldwin v. Von Micheroux (Sup.), 25 166-7, and English cases cited; see Pape v. N. Y. Supp. 857; accord Dempsey v. Dob- Lathrop (Ind.). 46 N. E. Rep. 154 [1897]. son (Pa.), 34 Atl. Rep. 459. 2 Hulse v. Machine Co. (C. C. A.), 65 5 Dempsey v. Dobson (Pa. Sup.), 34 Atl. Fed. Rep. 864. Rep. 459. 3 Clark v. Fernoline Chem. Co., 5 N. Y. 6 Makepeace v. Jackson, 4 Taunt. 770. 220 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [220. employees from disclosing, or using in a rival establishment, their knowledge thereof, acquired while occupying such confidential relation; and it 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. 1 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. 2 220. 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. 3 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. 4 221. Creations Made from Materials Collected while in Another's Ser- vice. xl draughtsman or engraver in the government employ can have no- copyright in a chart prepared for the government; 5 and it was so held of an artist that accompanied a government expedition. 8 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. 7 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. 8 222. 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 1 Little v. Gallus (Sup.), 38 N. Y. Supp. C. B. 427. 487, 1014; Peabody . Dice, 109 111. 649. 4 Blandy v. Griffith, 3 Fish. 615 [18691 2 Cases in 18 Amer. & Eng. Ency. Law 5 Bloxam *>, Elsee 1 Car. & P. 567; 135; Hulsefl. Bonsack Mach. Co. (C. C A .), Allen . Rawson, 1 Man. G. & S. 551. 6"> Fed. Rep. 864. 224.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 223 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 sufficient 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/' 1 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." a 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 grantor a patent to an assignee that an assignment should be previously recorded and that the inventor should take oath to the specification, it can 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. 3 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- 1 Agawam Co. v. Jordan, 7 Wall 602. 3 See U. S. Rev. Stat. 4888 ; Hogg 2 Allen v. Rawson, 1 Man. G. & S. 551. Emerson, 6 How. (U. S.) 437. 224 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 225. feet the details and realize his conceptions. If tinder 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. 1 225. Instances of Invention between Employer and Employee. A case in point was one where a husband was experimenting with turkeys 7 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 lie was entitled to the patent. This case, 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. 2 It has been held that an engineer may recover additional compensation for extra skill arid 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. 1 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. 3 * 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. 4 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. 1 Allen v. Rawson, 1 Man G. & S. 551. 3 Dull v. Bramhall, 49 111. 364 [1868]. 2 National Feather-Duster Co. D. Hib- 4 Gill v. United States, 16 Sup. Ct. Rep. bard, 9 Fed. Rep. 558 [1881J. 322. *See Sec. 210, supra. CHAPTER X. LIABILITY OF ENGINEER OR ARCHITECT AS A PROFESSIONAL MAN. MUST BE COMPETENT, SKILLFUL, AND MUST EXERCISE DUE CARE. 226. 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. 1 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. 8 227. 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"; 3 (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"; 4 (3) "in stipulating to exert their skill and apply their 1 Harmer . Cornelius, 5 C. B. (N. S.) 8 Cooley on Torts 649. 236 [18581. 4 Leiguton v. Sargent, 27 N. H. 460 2 Stmble, People v. Campbell, 82 N. Y. [1853]. 247 [1880]. 225 226 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 228. diligence and care, the medical and other professional men contract to use 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. 2 228. 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. 3 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. 4 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. 6 229. 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. 6 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. 7 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. 8 In the absence of an express agreement a physician does not even insure 1 Cooley on Torts 649; Leighton 0. Sar- (Tenn.) 452; McDonald v. Simpson, 4 Ark. gent, 27 JN". H. 460 [1853]; Peck v. Hutch- ~23; Wilson v. Brett, 11 M. & W. 113; inson (Iowa), 55 N. W. Rep. 511; Hewitt Shipman v. State, 43 Wis. 381; Money- v. 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 v. Cornelius, 5 C. ton v. Bell, 2 Hawks (N. C.) 145; Varuum B. (N. S.) 236 ; McFarland v. McClees v. Martin, 15 Pick. (Mass.) 440; Stimpsou (Penn.) 5 Atl Rep. 50. v. Sprague, 6 Greenl. (Me.) 470; Crooker 4 Story on Bailment. 435; Felt v. v. Hutchinson, 1 Vt. 73; Holmes v. Peck, School District, 24 Vt. 297. 1 R. I. 242; Graunis v. Branden, 5 Day 5 Meechem on Agency, 496. (Conn.) 260; Howard v. Grover, 28 Me. 6 McCarthy v. Bauer, 3 Kan. 237. 97; Ayers v. Russell, 50 Hun 283 [1888], 7 Shipman v. State, 43 Wis. 381; Leigh- where 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. 8 Munsell v. Baldwin, 56 Conn. 522 8 Kirtland , Montgomery, 1 Swan. [1888]. 231.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 227' that he will benefit his patient. 1 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. 3 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. 4 To recover for services he need riot prove their value to the patient, but only the ordinary and reasonable value of like- services. 1 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. 6 ' 230. 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. 8 The party asserting the negligence of the architect, or his want of skill, must prove it. 7 231. 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 will 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 bethesub- 1 Styles v. Tyler, 64 Conn. 432. 6 Pennsylvania R. R. Co. v. Ogier. 3i> Leighton v. Sargent, 27 N. H. 460 Pa. St. 60; Hubert v. Aitken, 15 Daly [18531. 237; Gill v. Midleton, 105 Mass. 477; Eddy 3 Utley'u. Burns, 70 111. 162 [1873]; in his v. Livingston, 35 Mo. 493; Grant v. Lud- locality, Whitesell 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. 4 Leighton v. Sargent, 27 N. H. 460 437. [1853]; Shipman v. State, 43 Wis. 381. 7 Gillmau . Stevens, 54 How. Pr. (N. Y.> 5 Mayor v. Bailey, 3 Denio 433; semble, 207. Judge Cooley, in 49 Mich. 153. 228 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 232. 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. 2 If lie 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. 3 232. 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. 4 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. 5 233. 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). 6 In such case it seems that a physician is not liable for the unskillfulness of another physi- cian which he has sent in his stead, the substitute being reg-arded as an inde- pendent contractor. 7 He is not responsible for evil consequences due to his 1 Union Pac. Rv. Co. V. Estes(Kan.), 16 som (Sup.), 31 N. Y. Supp. 966; Camp- Pac Rep 131 [18881. bell v. Russell, 139 Mass. 278 [1885]. 2 Harmer v. Cornelius, 5 C. B. (N. S.) 5 Carpenter v. Blake, 60 Barb. 488 [1871]; 236 [1858]. semble, Lottman -y. Barnett, 62 Mo. 159. 3 Chase v. Heaney, 70 111. 268 [1863]; 6 Booii v. Reed (Sup.), 23 N. Y. Supp. Springfield C. A. v. Smith, 32 111. 252 421. 1-1863] 7 Myers v. Holborn (N. J.), 33 Atl. Rep. ' 4 Carpenter v. Blake, 60 Barb. 490 [1871] ; 389. 50 N. Y. 696, explained; Deguan v. Ran- 235.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 229 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. 1 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. 2 234. 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 Mi\ 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." 3 "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." 4 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; 5 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. 9 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." 7 235. 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 1 Jones v. Vroom (Colo.), 45 Pac. Rep. 7 49 Mich. 153; Terre Haute v. Hudnutt, 234. 112 Ind. 542; Harmer v. Cornelius, 5 C. B. 2 36 Alb. L. J. 179. (N. S.) 236 [1858]; Somerby u. Tappan, 1 s Story on Agency, 217, p. 259. Wright (Ohio) 570 [1834]; Anderson 0. 4 Walker v. Walker, 5 Heiskell (Tenn.) Whitaker (Ala.), 11 So. Rep. 919; Sprine- 428. field C. A. v. Smith, 32 111. 252 [1663]; 5 Story on Agency, 192, n. 3. Downer . Davis, 19 Pick. 72 [1883]; Sher- 6 Walker 0. Walker, 5 Heiskell (Tenn.) man 0. Bates, 15 Neb. 18. 428. 230 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 23C. wounded man as a physician or surgeon without possessing a fair degree of professional knowledge is guilty of a breach of duty. 1 A mechanic who undertakes to build a house is liable in damages if through his ignorance he does his work unskillfully." 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; 3 and a dyer for damages arising from his unskillfulness; 4 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; 5 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. 8 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 liirn from recovering for his services. 7 236, Skill Required of Specialists. The same contracts are implied and the same rules of liability are laid down in case of physicians. 8 One case held that when a patient called upon a clairvoyant physician, it was held that lie 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. 9 So it has been held of attorneys.' The right of action against an examiner of titles for negli- gence exists only in favor of the party to the contract. It does not inure to the widow of the employer, 11 nor to an assignee of the mortgage negotiated on the faith of such abstract." 237. Skill and Care Required of Engineers and Architects Instances.* 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 Terre Haute v. Hudnutt, 112 Ind. 542. 9 Nelson v. Harrington (Wis.), 40 N. W. 2 49 Mich. 153. Rep. 228 [188k 1 : Pelky 0. Palmer (Mich.), 3 Parish v. Gilmore, 33 Wis. 608 [1873]. 67 N. W. Rep. 561. 4 Woodrow v. Hawving (Ala.), 16 So. 10 Bridges v. Paige, 13 Cal. 640 [1859]; Rep. 720. Mismanagement, Drais v. Hogan, 50 Cal. 5 Gaslin v. Hudson, 24 Vt. 140 [1852]. 121 [1875]; Examiners of titles, Rankin v. 6 Jones >. Vestry of Church, 19 Fed. Sclmeffer, 4 Mo. App. 108 [1877]; Roberts Rep. 59 [1883]. . The Loan & Abstract Co., 63 lown 76 7 Story on Bailments, g 485; Felt v. [1884]; Chaser Heaney, 70 111. 268 [1873]; School District, 24 Vt. 297 [1852]; Jones and see Thomas v. Carson (Neb.), 65 N.W. v. Vestry of Church, 19 Fed. Rep. 59 Rep. 899. 1883] 11 Schade v. Gerner (Mo. Sup.), 34 S. W. 8 Carpenter t>. Blake, 60 Barb. (N. Y. ) 488 Rep 576. [1871]: Robinson v. Campbell, 47 Iowa 12 Talpey . Wright (Ark.)- 32 S. W. 25 [1878] ; Cooley's Torts 649. Rep. 1072. * See Sec. 258, infra. 238.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 231 plans; 1 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. 2 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 tjje cracking of the walls of a build- ing. 3 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. 4 A builder has likewise been held liable for building a chimney that did not carry off the smoke. 6 238. 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. 6 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 as architect. An architect sued for the balance clue 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 caro 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. 7 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 1 Niver . Nash (Wash.), 35 Pac. Rep. 5 Somerby v. Tappan, 1 Wright (Ohio) 380; Erskine v. Johnson, 23 Neb. 265; 570 [1834]; and see Krebs Mfg. Co. v. Lake . McElfatrick (Sup.), 19 N. Y. Supp. Brown (Ala.), 18 So. Rep. 659. 494, reversed in 139 N. Y. 349; Pierson v. 6 Shreiner v. Miller, supra; Hubert v. Tyndall (Tex.), 28 S. W. Rep. 232. Aitkin, 15 Daly 237 [1889J; 14 Amer. & 2 Shipman v. State, 43 Wis. 381; Money- Eng. Ency. Law 781. penny . Hartland, 1 C. & P. 352; Oilman 7 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: Shiells v. Blackburne 1 H. Bl. 158; Newman v. Fowler, 37 N. J. Law 89. Hamilton Provident & Loan Society . 3 Shreiner t>. Miller, 67 la. 91 [1885]; Bell, 29 Gr. 203; Canada Lauded 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 v. Aitkin (N. Y.), 15 Daly 237; Goulden, L. R. 9 C. P. 57; Re Hopper, L. [1889]; and see semble, Brown 0. Burr (Pa.), R. 2 Q. B. 367; Ranger v. Great Western 2 Atl. Rep. 828. Ry. Co., 5 H. L. Cas. 72. 232 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 239. 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. 1 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 tetter'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 plaintiffs position as arbitrator exempted him from responsibility for negligence under his own agreement with the defendant. 2 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. 3 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 insufficient, he was liable for the consequences; and the opinion was expressed that an engineer should not estimate work at a price at which he would not contract for it, for if he does he deceives his employer. 4 239. 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- 1 Lotholz D. Fiedler, 59 111. App. 379. 3 Mistakes in making a survey, McCarthy 2 Irving v. Morrison, 27 C. P. (Upper v. Bauer, 3 Kans. 237; but see Halsey v. Canada) 242; but see Vigeant . Scully, 20 Hobbs (Ky.), 32 S. W. Rep. 415. 111. App 437; Shipman v. State, 43 Wi?. 4 Money penny 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 v. Lord Dillon, 2 F. & F. 67. 239.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 233 tions which ordinary care and attention, when bestowed by a competent architect, would detect and prevent, or detect 'in time to be remedied. 1 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. 8 When the contractor, by the terms of the contract, agreed to lay out his work himself, and made a mistake in the height of ce'rtain 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. 3 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 2f 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. 4 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. 5 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. 8 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 1 Peterson v. Rawson, 2 Bosw. (N. Y.) case that would have been in point but for 234 [1857]. the impertinent answers of the commis- 2 Peterson D. Rawson, supra ; accord, sioners. It was lost on account of the Pierson v. Tyndall (Tex.), 28 S. W. Rep. pleadings. 232. 5 Oilman v. Stevens, 54 How. Pr. (N. Y.) 3 Peterson v. Rawson, supra. 197 [1877]. 4 Peterson . Rawson, 34 N. Y. 370; 6 Vigeant v. Scully, 20 Bradw. 437. Shipman t>. State, 43 Wis. 381, is another 234: ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 240. 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. 1 240. 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 consequence 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 suit 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. 2 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. 3 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 foresight. 4 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. 5 241. 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 1 Merritt v. McNally (Mont.), 36 Pac. semble Gilman *>. Stevens, 54 How. Pr. 197 Rep. 44. [1877]. 2 Newman . Long Dock Co., 20 N. J. Y. 39 [1888]. 236 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 242, 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. 1 242. 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. 8 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. 3 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 4 unless the negligence is imminently dangerous to others, as when' a druggist makes a mistake in labeling or compounding a medicine. 5 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. 8 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 1 Kimberly t>. Dick, 41 L. J. Ch. 38 4 Winterbottom v. Wright, 10 M. & W. [1871]. 109; Losee v. Clute, 51 N. Y. 494. 2 Feltus v. Swan, 62 Miss. 415 [1884]; 5 Thomas . Davis, 19 Pick. 72. * Lottman v. Barnett, 62 Mo. 159 ; and 3 Mayor t>. Cunliff, 2 N. Y. 165. see Trustees v. Bradfield, 30 Ga. 1. 243.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 237 damage done, it was held that the superintendent was not liable to the neighbor, and no action could be maintained against him; 1 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 remedy against one party or against both parties jointly. 8 243, 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. 3 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. 4 . Swan, 62 Miss. 415 [1884]. Miss. 581; Gillis v. Duluth, etc., R. Co. 2 Grudger . Western N. C. R. Co., 87 (Minn.), 25 K W. Rep. 603. . C. 525 [1882]. 4 White v. San Antonio W. W. Co. 3 New Orleans, etc., R. Co. Badgley . Dickson, 13 Ont. App. 494 2 Russell Law of Awards 497. [1887]. 248.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 243 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 ^^m'-arbitrator,. 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/ 7 As a professional engineer, " he was bound to exercise ordinary care and skill, 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,. 0. 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/ 7 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. Kose, L. R. 7 C. P. 40. 244 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 249. 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 this 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 arid 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. 1 249. 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. 9 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. 1 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 skill ought to be exer- 1 Badgley v. Dickinson, 13 Ontario App. ble to his employer for want of skill orneg- 494 [1887]. ligence in the performance of a judicial 2 Badgley V. Dickinson, 13 Ontario App. act, such as an estimate of work, by which 494 [1887], It is submitted that this may both parties have agreed to be bound. be true enough, but would he be responsi- 249A.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 245 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. 1 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. 1 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. 2 249A. 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 vigilance 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, if 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. 3 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. 4 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. 6 " 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 1 Vigeant o. Scully, 20 Brad well (111. 4 Tagg v. The Term. Nat'l Bk., 9 Heisk. App.) 437 [1886J. 479 [1872]. 2 Tharsis 8. & C. Co. v. Loftus, L. R. 8 5 1 Amer. & Eng. Ency. Law 421. C. P. Gas. 1 [1872]; and see 69 Iowa 541; 6 Judge Cooley, in Davis v. Detroit & 2 Dillon's Munic. Corp'ns, 237, note. Mil. R. Co., 20 Mich. 105 [1870]. 3 Union Bank v. Campbell, 4 Hun 394. 246 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [249 A. incapacity of his engineman, 1 and when a track-repairer failed to advise his company of the condition of the road-bed. If he knows, 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. 2 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. 3 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. 4 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 that the work was being done or that it had been done by his orders. 6 The status of an engineer or architect and his relations to his company or employer when he is on the witness stand deserves a passing notice. The engineer or architect enjoys no such privileges in court as his brother attorneys or physicians, though he be employed in a professional capacity. Communications 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. 8 The same is held of a banker 7 and of clerks and servants in general. 8 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, 9 or where he is to build, 10 if he has neither agreed nor been requested to keep such facts secret. It might be a ground for discharging him if he were a servant in the owner's regular employ.* 1 Davis v. Detroit & Mill. R. Co., supra. ruff v. Rochester & P. R. Co., 108 N. Y. 2 Porter v. Han. & St. J. R. Co., 71 Mo. 39; Wolf v. Des Moines & Ft. D. R. Co., 66 [1879]. 64 Iowa 380; Rentoii . Mourner. 77 Cal. 3 46 Iowa 109; semble, Indiana B. &W. 449. Hy. Co. v. Adamson (Ind.), 15 N. E. Rep. Page v. Ward, W. K 1869-51. 5 [1888]. 7 Lloyd . Freshfield, 2 C. & P. 325. 4 Danville Bridge Co. . Poraroy, 15 Pa. 8 19 Amer. & Eng. Ency. Law 155-156. St. 151 [1850]; and see O'Brien v. Mayor 9 Havens v. Donahue (Cal.), 43Pac. Rep. . Brooks (Cal.), 22 Pac. Rep. 6 Many cases cited by counsel in Wood- 849; but see Wills v. Abbey, 27 Tex. 202 * See Sec. 204, supra. CHAPTEE XII. LIABILITY OF ENGINEER OR ARCHITECT WHEN A PUBLIC OFFICER. 250. 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 public 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 1 or city engineer a within the cage smilingly tells him he is "very sorry, but that he can't help it, for mistakes will happen." ISTo 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. 3 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, 4 and there are many cases which deny the exemption alto- 1 See State . Harris, 89 Ind. 363. z 19 Arner. & Eng. Ency. Law 483. 2 See McCarthy v. Bauer, 3 Kans. 237 4 19 Amer. &Eng. Ency. Law 484, cases [1865]. cited. * See Sec. 36, supra. \ See Sees. 344-249, supra. 247 248 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 251. gether, except when the act complained of is a judicial act or one involving- the discretion of the officer. 1 251. 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 judges 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. 2 In England no action lies against the county surveyor for damages resulting from the want of repair to a county bridge, 3 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. 4 252. 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 organization s, 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- sive 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. 253. 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. 4 State v. Harris, 89 Ind. 363. 2 Wheatley v. Mercer, 9 Bush (Ky.), 704 5 Commissioners of Ham. Co. v. Mighels, [1873]. 7 Ohio St. 109; Wheatley v. Mercer, J> 'M'Kinnon v. PensoD, 8 Exch. 319 Bush (Ky.) 704. [1853] 254.] ENGINEER' 8 AND ARCHITECT'S EMPLOYMENT. 249 with the supervision of highways, discharging the duties gratuitously 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. 1 Trustees and commissioners acting gratuitously for the bene- fit of the public and intrusted with the conduct of public works 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. a 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; 3 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 ; 4 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. 5 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.' 254. 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. 7 The same has been held of an officer who was charged with the duty of keep- ing a street in repair. 8 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. 9 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. 10 1 Meechem on Public Officers, 594; 6 Rauer v. Lowe (Cal.), 107 Cal. 229, Holliday v. St. Leonard, 11 Com. B. (N. 40 Pac. Rep. 337 [1895]. S.) 192. 7 Shepherd v. Lincoln, 17 Wend. (N. Y.) 2 Hall v. Smith, 2 Bing. 156; Harris . 250. Baker, 4 Maule & S. 27; Sutton v. Clarke, 6 8 Bennett v. Whitney, 94 N. Y. 302; Rec- Taunt. 34; Holliday v. St. Leonard, supra. toru. Pierce, 3 Thomp. & C. (N. Y.) 416; 8 Rowe v. Addison, 34 N. H. 306, 312, and a bridge, People v. Adsit, 2 Hill(K Y.) and cases cited. 619; cases cited, 19 Amer. & Eng. Eucy. . 4 Butter v. Ashworth (Cal.), 36 Pac. Rep. Law 495. 922. 9 Robinson . Chamberlain, 34 N. Y. 389. 8 Merritt v. McNally (Mont.), 36 Pac. 10 Arthy v. Coleman, 8 E. & B. 1092 Rep. 44. [1857]. 250 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 255. 255. 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. 1 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. 2 * 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. 3 If a person sign his own name to a note followed with ' ' for the select- men," 4 he will be liable personally upon the obligation. 6 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 appears 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. 5 1 Meechem on Public Officers, 803 4 Andover v. Grafton, 7 N. H. 298. 'Nichols v. Moody, 22 Barb. (N. Y.) 6 Sumner v. Chandler, 2 Pugsley & B. 11. (N. B.)175. 'Humphrey v. Jones, 71 Mo. 62 [1879]. 8ee Sees. 29-42, 54, 149, and 178-180, supra. 258.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 251 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 officer'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. 1 256. Officer or Employee is Responsible for His False Representations. If the engineer or architect make false or fraudulent representations 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 2 or a public officer. 3 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 bonafide belief that he had authority, in any case he was held liable. 4 257. 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. 5 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. 258. 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. 4 Randell v. Trimen, 18 C. B. 786 [1856]. 2 Randell v. Trimer, 18 C. B. 786 [1856]. s East River Gas Light Co. t>. Donnelly, 3 Culver v. Avery, 7 Wend. (N. Y.) 380 ; 25 Hun 614; 19 Amer. & Eng. Eucy. Law Newman v. Sylvester, 42 Ind. 106. 484 252 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 258, 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 ft 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 : t( 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 refuse 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." 1 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- 1 McCarthy 0, Bauer, 3 Kans. 237 [1865]; semble Sievess v. San Francisco (Cal.), 47 Pac. Rep. 687. 259A.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 253 mine the amount 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. 1 259. 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. 2 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. 3 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. 4 259 A. 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. 6 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. 8 Injunctions sometimes issue that may be evaded on technicalities, the recognition and prompt advantage of which may be taken by an engineer 1 McCarthys 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 0. Ridg- Alcorn v. Philadelphia, 44 Pa. St. 348 ley et al., 21 111. 65, cited and explained. [1863]; 2 Dillon's Mimic. Corp'ns, 237 Hall v. Smith, 2 Bing. 156 [1824]. note, 859, 910, 978; Rowe v. Addison, 34 N. 4 Eliason v. Col em an, 86 N. C. 285 [1882]. H. 306, 312; Norwell v. Wright. 3 Allen 6 10 Amer. & Eng. Ency. Law 833-7. (Mass.) 166; Chitty's Contracts [9th Amer. 6 Holmes . Calhoun County (Iowa), 66 ed.], p. 598; Story's Agency 328. N. W. Rep. 145. 2 Bunn v. The People, 45 111. 397 [1867]; 254 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [259 A. versed in law. If the injunction cannot be defeated or avoided, then it becomes his duty to employ other tactics. Whether 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. 1 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. 1 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. 2 A copy of an injunction left at a person's residence 3 is a notice to him, and a service on a company at its office is one to its directors, 4 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, 6 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. 7 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. 8 An injunction issued by a court of competent jurisdiction must be fairly and honestly obeyed it cannot be evaded by subterfuges or tricks. 9 If the 1 10 Amer. & Eng, Ency. Law 1011. 6 Wellesley v. Mornington, 11 Beav. 2 McCauley v. Palmer, 40 Hun (N. Y.) 181. 38; Sanford v. Sanford, 40 Hun (N. Y.) 7 Golden Gate Min. Co. v. Yuba Co. 540. Super. Ct., 65 Cal. 187. 3 Morris v. Bradford, 19 Ga. 527. 8 In re Bryant, 4 Ch. D. 98; Cape M;iy, 4 Brown v. Pac., etc., R. Co., 5 Blatchf. eto., R. Co. v. Johnson, 35 N. J. Eq 422. (U. S.) 525. 9 Wilcox Silv. P. Co. v. Sclrimmel 59 8 People v. Sturtevant, 9 N. Y. 263. Mich. 524. 259A.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 255 court has not jurisdiction, then one who disobeys it will not be punished for contempt. 1 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. 2 The erection of a bridge under a special act of Congress in disobedience to an injunction was held not a con- tempt. 3 Ignoring an injunction to prevent the infringment of a patent which is declared invalid on appeal has been held not contempt. 4 If the order of the court is merely erroneous, some courts hold it must be obeyed, or the one- who violates it may be punished. 5 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. 6 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. 7 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 1 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. 9 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. 10 A man is not guilty of a constructive contempt 1 3 Amer. & Eng. Ency. Law 788. see People t>. Edson, 52 N". Y. Super. Ct. 2 Keenan v. People, 58 111. App. 241. 53, mayor appointing superintendent of 3 State of Penna. v. Wheeling Edge. 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. 7 Atlantic Powder Co., 9 Fed. Rep. 316. Law 842-3. 8 10 Amer. & Eng. Ency. Law 1011- 4 Worden v. Searls, 121 U. S. 14. 1012. 5 Keenan v. People, 58 111. App. 241; 9 Shirk v. Cox (Ind. Sup.), 40 N. E, Walton t>. Develing, 61 111. 201 [1871]; Rep. 750. but see In re McCain (S. D.), 68 N. W. 10 Indianapolis Water Co. v. American Rep. 163. Strawboard Co. (C. C.), 75 Fed. Rep. 972. 6 Walton v. Develing, 61 111. 201 [1871]; 256 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 259 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. 1 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. 8 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. 3 1 Shirk v. Cox (Ind. Sup.), 40 N. E. 8 West . Utica (Sup.), 24 N. Y. Supp. Rep. 750. 1075. 2 3 Amer. & Eng. Ency. Law 796-799. CHAPTER XIII. COMPENSATION OF ENGINEERS AND ARCHITECTS. PROTECTION OF LIEN AND OTHER LAWS FREE PASSES. 260. 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 valebat, 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. 1 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. 2 261. Eights 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- 1 Wandelt v. Cohen (Com. PL), 36 N. Y. * Feltham v. Sharp (Ga.), 25 S. E. Rep. Supp. 811. 619. * See Sec. 296, infra. t See Sees. 211-214, supra. 257 258 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 262. 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 superintendent and attorneys of the company, 1 nor can an agent, superin- tendent, general manager, or general manager and bookkeeper be embraced under any of the terms laborer, servant, or apprentice. 2 It is usually held that a general enactment for the protection of laborers, mechanics, apprentices, and materialmen will not extend to an architect who- 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. 8 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, 4 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. 5 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. 6 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. 7 A mining engineer who has rendered professional services only is not entitled to a lien under the statute of Utah. 8 262. 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 structure 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. 9 1 People v. Remington, 45 Hun 338 senible, 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.), 5 McCormick v. Los Angeles Co., 40 Gal. 48 Pac. Rep. 355 [1897]; People . Rem- 185. ingtou, supra, and cases cited ; McDonald 'Breault v. Archambault (Minn ), 67 N. v. Charlestown, etc., R. Co. (Tenn.), 24 S. W. Rep. 348. W. Rep. 252; Addison v. Pac. Coast Mill. 7 Lambard v. Pike, 33 Me. 141. Co. (C. C.), 79 Fed. Rep. 459. 8 Mining Co. v. Cullins, 104 U. S. 177. 3 Price v. Kirk, 90 Pa. St. 47 [1879]; 9 Bank v. Gries. 35 Pa. St. 423- Railroad Foushee v. Grigsley, 12 Bush 75 [1876]. Co. v. Leufner, 84 Pa. St. 168; Hubert t>. 4 Ames v. Dyer, 41 Me. 397 [1856]; Aitken, 15 Daly (N. Y.) 237; Stryker v. 262.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 259"* It is submitted that this is no more than just, that even though 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 &< 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 a 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 hi right to a lien. 1 It may be noted, however, that the architect recovers as a mechanic and^ for mechanical work, and 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." 2 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. 3 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 fojr compensation. 4 This decision was reversed and quite a contrary opinion rendered.- The 1 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. Electric P. 2 Price v. Kirk. 90 Pa. St. 47 [1879]; Co (Sup.), 38 N. Y. Supp. 845; Mutual Rush v. Able, 90 Pa. St. 153; Railroad Co. Benefit L. Ins. Co. v Rowand, 26 N. J. v. Leufner, 84 Pa. St. 168. Law 389; Knight v. Norris, 13 Minn. 473; 3 People?'. Board of Aldermen of Buffalo 4 Phillips on Mechanics' Liens (2d ed.), (Sup.), 42 N. Y. Supp. 545. 158; and see 1 Oreg. 169; 11 Nev. 304; 4 Leufner v. Pa. & Del. Ry., 11 Phila, and other cases cited, infra. (Pa.) 548 [1876]; accord, Stryker v. Gas- 1 Bank v. Grigs, 35 Pa. St. 423 (11 Casey) sidy, 76 N. Y. 50 ; semble, Conant v. Vam [I860]. Schaick, 24 Barb. 99. 260 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 262. but 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. 8 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 how 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 oases 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; 3 and another case under a statute providing that when any person 1 Penna. & Del. R. R. Co. v. Leufner, 84 5 Pa. Dist. Rep. 623. Pa. St. 168 [1877] ; Wen troth's Appeal, 1 3 Judge Cullcn in Rfm v. Electric Power Norris 469. Co. of S I. (Sup.), 38 N. Y. Supp. 345 2 Cuilum 0. Lickdale Iron Co. (Com. PI.), [1894], 3 App. Div. (N. Y.) 305 [1896]. 262.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 261 shall intrust to any mechanic, artisan, or tradesman materials to construct, alter, or repair any article of value, 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. 1 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; 2 and an architect has been held entitled to the protection of the lien laws in Alabama, 3 for " work or labor upon a building or improvement on land ; " in Ohio 4 and in Iowa for plans, specifications, and superintendence; 5 in New Jersey for plans and specifica- tions and superintendence at 24- per cent; 6 in Minnesota at 5 per cent; 7 also in California; 8 in Louisiana; 9 and in Canada. 10 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. 11 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. 12 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. 13 1 Amazon Irrigating Co. v. Briesen W. Rep. 717; Gardner v. Leek (Minn.), 54 (Kans. App.), 41 Pac. Rep. 1116. K W. Rep. 746. 2 Taylor v. Gilsdorf, 74 111. 359; Rim v. 8 Pac. Mut. Life Ins. Co. t>. Fisher (Cal.), Electric P. Co., 3 App. Div. (N. Y.) 305 42 Pac. Rep. 154. [1896]; Stryker v. Cassidy, 76 N. Y. 50; 9 Mulligan v. Mulligan, 18 La. Ann. 20. Gurney v. Atlantic, etc., R. Co., 58 N. Y. 10 Arnoldi v. Gourin, 22 Grant's Cli. 358; Hubert v. Aitkeu, 15 Daly 237; but (Ont.) 314. see Ericsson v. Brown, 38 Barb. *891. n Ames v. Dyer, 41 Me. 397; Raeder v. 8 Hughes v. Forgerson, 96 Ala. 346. Bensberg, 6 Mo. App. 445; Foushee v 4 Phoenix Fur. Co. v. Hotel Co. (C. C.), Grigsby, 12 Bush 76; Thompson . Baxter 6G Fed. Rep. 683. (Tenn.), 21 S. W. Rep. 668; and see Adler 6 Parsons v. Brown (Iowa), 66 N. W. . World's P. Exp. Co. (111.), 18 N. E. Rep. 880. Rep. 809 [1888]. 6 Mutual v. Rowand, 26 N. J. Eq. 389. 12 Bentley v. Adams (Wis.), 66 N. W. 7 Knight V. Norris, 13 Minn. 473; and Rep. 505. see Wauganstein v. Jones (Minn.), 63 N. 13 Hoffa v. Person, 1 Pa. Super. Ct. 357. 262 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 263. 263. Engineers' or Architects' Rights 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, 1 while others have maintained a .contrary view. 5 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 the act, the ^ourt 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. 4 '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, 3 a contractor, 4 and officers of the company, as the chief engineer and the assistant chief engineer; 5 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." 6 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 1 Brockway v. Innes, 39 Mich 47 [1880]; Williamson v. Wadsworth, 49 Barb. 296; Boutwell v. Townsend, 37 Barb. 205; Bailey 0. Banker, 3 Hill 188. Hovey. Ten Broeck, 3 Roberts 316; Coffin 3 Ericsson v. Brown, 38 Barb. 390. y. Reynolds. 37 N. Y. 640; Aiken v. Was- 4 Aiken v. Wasson, 24 N. Y. 482. -son, 24 N. Y. 482; Fish 0. Dodge, 38 Barb. 5 Brockway v. Innes, 39 Mich. 47 [1880]. 168; 17Amer. L. Reg. 102. Conant v. Van Schaick, 24 Birb 87 2 Conaut v. Van Schaick, 24 Barb. 87; [1857]; see Bailey v. Banker, 3 Hill 188. JFtichardson v Abendroth, 43 Barb. 162; . 264.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 263 a 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 Mts in subordination to others, under whose orders, directions, and control he acts for the time being. The one commands, the other obeys ; the 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 ^very 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 and implicitly obey their commands. He was, in this capacity, their subordi- nate helper,and therefore a servant within the act. 1 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. 2 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. 264. 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. 3 * Nor can such a stipulation be made a condition in the engineer's contract of employment. 4 In spite of such releases, therefore, it has been held frequently that the party riding upon such pass could recover. 5 'Williamson v. Wadsworth, 49 Barb. 4 Accord, Lake Shore, etc., R. Co. v. 294 [1867]; Richardson v. Abendroth, 43 Spangler, 44 Ohio St. 471 [1887] ; Roe- Barb. 162. suer v. Herman, 3 Fed. Rep. 782; Kansas 2 Aiken . Wasson, 24 N. Y. 482 [1862]; Pac. R. Co. v. Peavey, 29 Kan. 169; 2 Peck v. Miller, 39 Mich. 594 [1880]. Thomp. on Negce. 1025; 1 Cent. L. J. 485. 3 9 Amer. & Eng. Ency. Law 913, 914. 6 Porter v. N. Y. L. Erie & W. R. Co., * See Chap. I, Sec. 86, supra. 264 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 265. 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 the company's servants, is valid if it is made in consideration of the free car- riage, 1 or of employment, 2 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. 3 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. 4 265. 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. 6 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 officers 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. 266. 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 v. 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. v. Donnegan. 12 Cent. R. R. v. Mundy, 2 Ind. 48; Illi- N. E. Rep. 153; and see 35 Alb. L. J. 404, nois Cent. R. R. v. Read, 37111. 484; see 33 N. W. Rep. 603, 8 Fed. Rep. 782. also 9 Amer. & Eng. Ency. Law 913-914, 1 Kinney 0. 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 212 R. Co., 25 N. Y. 448; and see Jacobus . [1892]. St. Paul R. Co , 20 Minn. 110. 4 Ulrich v. N. Y. Cent. R. Co., 108 N. s Pittsburgh, etc., R. Co. . Mahony Y. 80 [1888], (Ind. Sup.), 46 N. E. Rep. 917, but not so 5 Peuna. R. Co. v. Henderson, 51 Pa. St. if the pass is not a gratuity; Doyle u. Fitch- 315; contra, Omaha & R. V. Ry. Co. v. burgR. Co. (Mass.), 44 N. E. Rep. 611. Crow (Neb.), 66 N. W. Rep. 21: other case 3 Kinney v. Cent. R. R. of N. J., 34 N. 9 Amer. & Eng. Ency. Law 914. 266.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 265 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. 1 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. 2 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. 3 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. 4 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. 5 The constitution of the State of New 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. 6 The article applies to public officers nsing passes received by them before such provision took effect." 1 Pbila. & Reading R. Co. v. Derby, 1 la.), 42 N. W. Rep. 563; see also North- Am. Law Reg. 397 [1852]; other cases era Pac. R. Co. v. Beaton (C. C. A.), 64 cited, 9 Amer. & Eug. Ency. Law 914. Fed. Rep/ 563. 2 Noltonfl. Western R. Corp., 15 N. Y. 6 Scarbrough v. Alabama Mid. Ry. Co, 444 [1857]. (Ala.), 10 So. Rep. 316. 3 9 Amer. & Eng. Ency. Law 913. 6 People v. Rathbone (N. Y. App.), 40 4 Melvy v. Chicago & N. W. Ry. Co. N. E. Rep. 395. CHAPTEE XIV. EMPLOYMENT OF AN ENGINEER OR ARCHITECT AS AN EXPERT WITNESS. THE CONSULTATION, PREPARATION, AND BEHAVIOR IN COURT. REMUNERA- TION FOR HIS SERVICES. 267. 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. 268. 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 206 269.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 267 the proper solution or of the 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, . Baldwin (Kans.), 12 Pac. Rep. 4 Mix v. Staples, 17 N. Y. Supp. 775, 318 [1887]. Justice O'Brien dissenting. g 276.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 273 than from actual practice, is admissible, 1 and 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. 3 When books are referred to for authority, or to strengthen opinions, the opposition may bring the same books in evidence to test the witness's knowl- edge, or to contradict him or his opinion. 4 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, (rillespie, Gilmore, and other authori- ties on engineering, were received as competent. 6 It is therefore submitted that though books themselves are not admissible to prove the declarations they contain, yet their statements and opinions may be 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. 6 Their contents must have been previously known. Though they cannot 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. 7 The use of a standard authority on the subject of inquiry has been permitted 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. 8 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, 9 and permission to read the law to the jury is within the discretion of the trial judge. 10 Current schedules of prices in trade, calendars, life-tables, and so forth, have been admitted, and it is submitted that in the same cate- 1 Fordyce . Moore (Tex.), 22 S. W. B Central R. R. Co. v. Mitchel, 63 Ga. Rep. 235; Hardiman . Brown (Mass.), 39 173. 1ST. E. Rep. 192. 50 Mich. 148 and 296 and 629. 2 Marshall v. Brown (Mich.), 12 The T Thompkins . West, 56 Conn. 478. Reptr. 693 [1883], and 32 Albany Law 8 Byers v. Nashville, C. & St. L. Ry. Co. Journal 54. (Tenn.), 20 S. W. Rep. 128. 3 Rogers' Expert Testimony 28; City of 9 Yarbrough . State (Ala.), 16 So. Rep. Jackson v. Boone (Ga.), 20 S. E. Rep. 46. 758. 4 Marshall v. Brown (Mich.) [1883], 10 Forbes v. State (Tex.), 29 S. W. Rep. supra; People v. Vanderhoof (Mich.), 784. supra ; Taylor on Evidence. 274 .ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 277. gory can be classed standard tables of sines, cosines, logarithms, multipli- cation tables, etc. 1 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. 2 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. 3 277. Witness may Use a Book, Chart, or Prepared Memoranda to Refresh His 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. 4 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. 6 As a witness he cannot read from his memoranda, even though 1 Morris v. Columbian Dock Co. (Md.), cited, see Central Law Journal, vol. 5, p. 25 Atl. Rep. 417; Richmond & D. R. Co. v. 439, and vol. 15, p. 88. Hisong (Ala.), 13 So. Rep. 209. 3 Lawson's Exp. & Opin. Evdce. 169 2 Lawson's Expert and Opinion Evdce. et seq. 187-192. For an article on Books of Sci- 4 Best on Evidence (Chamb. ed.) 227. ence as Evidence, in which many cases are 5 Nefl v. Cincinnati, 32 Ohio St. 215; 277.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 275 made by himself; be can refresh his memory by looking at the writing, but be must testify from his recollections. 1 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. 3 The memoranda is not of itself competent evidence to prove the facts stated. 3 In general, such memoranda employed by a witness to re- fresh his memory must be verified as correct 4 before it can itself become evidence. 5 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 trial court may in its discretion allow the jury to take the plat with them as a memoranda when they retire. 6 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. 7 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. 8 This is not, however, a general rule. 9 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 be used to refresh the. memory, nor can they if made at the recommendation of one of the parties. 10 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. 12 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. 13 Cunningham v. Massena, etc., R. Co. and see Commonwealth v. Burke, 114 (Sup.). 18 N. Y. Supp. 600. Mass. 261; Merril v. The Ithaca & O. R. 1 Wilde v. Hexter, 50 Harbour 448. Co., 16 Wend. 586; Bissell . Mich. South- 'Bonnette v. Gladtfeldt, 11 N. E. Rep. ern, etc., R. Co., 22 N. Y. 262; Halsey . 250 (Ills.) 1887; Meade . White (Pa.), 8 Siucebaugh, 15 N. Y. 485; Harvey v. All. Rep. 912 [1887.] United States, 113 U. S. 243. 3 Baum v. Reay (Cal.), 29 Pac. Rep. 117. 10 Spring Garden Mut. lus. Co. v. Evans, 4 Elder v. Reilly (Minn.), 51 N. W. Rep. 15 Md. 54 [1859]; Howell v. Bowman 226; City of Birmingham v. McPoland (Ala.), 10 So. Rep. 640; see also Btmm v, (Ala.), 11 So. Rep. 427. Reay (Cal.). 29 Pac. Rep. 417; Anderson 5 Klepsch v. Donald (Wash.), 35 Pac. v. Imhoff (Neb.), 51 N. W. Rep. 854. Rep. 621. "Boughton v. Smith (Sup.), 22 N. Y. 6 Neff v. Cincinnati, 32 Ohio St. 215. Supp. 148. 1 Butler 0. Chicago, B & Q. R. Co. 12 Sanders *>. 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], citing 114 N. Y 498. v. Duff (Kan.), 31 Pac. Rep. 1061. 13 Harvey v. United States, 113 U. S. 243. 9 King v. Inhabitants, 2 A. & E. 210; 276 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE, [ 278. 278. 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, .and was not present when the materials were delivered, and did not there- after measure and inspect them. 1 Books of account, containing i terns 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, where 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. 3 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. 3 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. 4 So held of a blue print. 5 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 an'd taken away, and he oould not find them. 6 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. 7 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. 8 So where the books of original account have been destroyed, the items therein maybe proved by the ledger. 9 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. 10 Nor if such entries were made by a party to the suit in his own behalf. 11 1 McCormick v. Saddler (Utah), 37 Pac. 7 Dillon v. Howe (Mich.), 57 N. W. Rep. Rep. 332. 102. 2 Dodge i). Morrow (Ind. App.), 43 N. E. 8 Klepsch . Donald (Wash.), 35 Pac. Rep. 153. Rep. 621. 3 Levine v. Lancashire Ins. Co. (Minn.), 9 McCrady v. Jones (S. C.), 15 S. E. Rep. 68 N. W. Rep. 855. 430. 4 Anderson v. Imhoff (Neb.), 51 N. W. 10 Fritz v. Burgiss (S. C.), 19 S. E. Rep. Rep. 854. 304; but see Levine v. Lancashire Ins. Co. s Currier . B. & M. R. Co., 31 N. H. (Minn.), 68 N. W. Rep. 855. 225 [1855]. Doty v. Smith (Sup.), 22 N. Y. Supp. 6 Stanfield . Knickerbocker Trust Co. 840. (Sup.), 37 N. Y. Supp. 600. 280.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 277 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 reason to believe it will refresh his memory. 2 The use of memoranda to refresh one's memory has been held a matter largely discretionary with the trial court. 3 279, 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 them 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 from 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. 4 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. 5 280. Use of Photographs as Evidence. Photographic views should be taken from selected positions, which, if sworn to as being true representa- tions of what they profess to be, may be introduced in evidence. 6 The value of photographic views cannot be overestimated. They are invaluable ira 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 1 Ehrisman t>. Scott (Ind. App.), 32 N. 17 S. E. Rep. 794; Roderiquez v. State E. Rep. 867. (Tex.), 22 S. W. Rep. 978; McVey v. Dar- 2 State v. Stanton (N. C.), 19 S. E. Rep. kin (Pa.), 20 Atl. Rep 541 [1890]. 96. 5 Chicago, etc., Ry. Co. v. Chambers- 3 Michigan Ins. Co. v. Wich (Colo.), 46 (C. C. A.), 68 Fed. Rep. 148. Pac. Rep. 687. 6 Howard v. Russell, 12 S. W. Rep,. 4 Poling v. Ohio River R. Co. (W. Va.), 525; German T. S. v. City of Dubuque, 64 18 S. E. Rep. 782; State 0. Harr (W. Va.), Iowa 736. 278 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 280. 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/' 1 or by a change of grade of a street, 2 to show wrecks, 3 and of broken parts of fallen structures, to show the obstruction to drainage of a turnpike by the erection of a bridge or causeway, 4 to sho.w a defective sidewalk. 5 Photo- graphic views of streets, buildings, railroad tracks, bridges, etc., have been admitted. 6 Photographs may be received of deeds and descriptions taken from public records which could not be withdrawn, such as to show boundaries, 7 and to identify and describe premises in dispute, 8 to identify persons, 9 a lot of jew- elry, 10 and to show the severity of wounds due to an assault; and the fact that 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. 11 They have been ad- mitted to identify documents, and in place of the original if the original document itself cannot be had, 13 and to show field notes of a survey. 13 Photographic copies on a large scale have been admitted to show com- parisons of handwriting, 14 but such copies have been excluded when not offered for comparison with enlarged copies of the genuine signature. 15 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 1 64 la. 736. 8 Blair v. Pelham, 118 Mass. 421 ; Mulbado 2 31 Wis. 512. v. R. R. Co. , 30 N. Y. 370 ; Cooper v. St. Paul 3 Kansas R. Co. v. Smith (Ala.), 8 So. City Ry. Co. (Minn.), 56 N. W. Rep. 42. Rep. 43 [1890]; 46 la. 109. 9 Udderzook v. Commonwealth, 76 Pa. 4 Chestnut H. Tk. Co. . Piper, Penna. St. 352; Peoples. Smith. 121 N. Y. 578. Sup. Ct., Jan'y 1884. ' 59 Fed. Rep. 684; Rulof v. People, 45 6 Barker v. Town of Perry (la.), 25 N. N. Y. 213. W. Rep. 100 [1885]. Cooper v. St. Paul City R. Co., supra. Glasier v. Town of Hebron, 16 N. Y. 12 In re Foster (Mich.) 3 Am. Law Times Supp. 503, an embankment; see Locke v. Rep. 411 [1876]; see also Eborn v. Zimple- JSioux City & P. R. Co., 46 la. 109; Red- man (Tex.) [1877] ; Haynes v. McDermott, din v. Gates, 52 la. 210; German T. S. t>. 11 Cent. L. J. 378. City of D., 17 N. W. Rep. 153; Udder- ls Ayers v. Harris (Tex.), 13 S. W. Rep. zooks Case, 76 Peun. St. 340; Ruloff v. 768 [1890]. People, 45 N. Y. 213; Marcey . Barnes, u 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 Amer. 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, a cellar floor; Dedrichsa. Salt Lake C. 15 White S. M. Co. v. Gordon (Ind.), 24 R. Co. (Utah), 46 Pac. Rep. 656. N. E. Rep. 1053; and see Geer v. Lumber 1 20 Alb. L. J. 4. Co. (Mo.), 34 S. W. Rep. 1099. 282.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 279 being for the jury. 1 The question of admissibility of photographs is one largely, if not entirely, for the trial judge; 2 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, 3 or to show the effect of a flood from a dam that had given way. 4 The rejection of a photograph of premises whose boundaries are in dispute does not furnish a ground of exception. 5 Photography is almost indispensable to the expert in the enlarged representation of minute objects or to emphasize details 8 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 testify that the photograph is a correct likeness or representation of the original object or locality. 7 281. Expert Witness should Fortify His Opinions with Authority and 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 what is not the true merit of the question. His reasons should be formulated and prepared, for he may or may not be asked to explain the reasons of his opinions. 282. 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 1 State v. Tice (Oreg.), 48 Pac. Rep. 367. 6 Marcy . Barnes, 82 Mass. 161; and see 2 Verran v. Baird (Mass.), 22 N. E. Rep. 9 Amer. Law Rvw. 173. 30 [1889]; Cleveland, C., C. & St. L. Ry. 7 Nies v. Broadhead, 27 N. Y. Supp. 52, Co. v. Monaghan (Ills.), 30 N. E. Rep. 869 also Roosevelt H. v. N.Y. El. R. Co., 21 N. [18921 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]; Leid- 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 Allen 473 [1864], 630 [1889]. which seems to hold that photographer 5 Hollenbeck D. Rowley, 8 Allen 473 must verify the picture under oath. [1864]. 280 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 283. disposition to present one's views plainly and clearly for what they are worth r a careful avoidance of any effort to force conviction into the minds of the 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 with them, has considered and weighed 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 requirements of an expert, which is in nowise a question for the jury. 1 283, Trial Court Determines the Privileges of an Expert Witness. The preliminary question whether a witness offered as an expert has the neces- sary qualifications is for the court, and is largely within its discretion. 1 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. 3 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. 4 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- diet the testimony of other witnesses testifying from practical experience, on appeal. 6 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. 8 In the furtherance of justice, the court may in its discretion depart from 1 Jones v. Tucker, 41 N. H. 546 [I860]; 983; see also Santa Cruz v. Enright(Cal.), 30 Mut. F.I. Co. -. Alvord (C. C. A.), 61 Pac. Rep. 197; and 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 ofanore crusher; Campbell v. Rus- 36; Helfenstein v. Medart (Mo. Supp.), 36 sell, 139 Mas*. 278 [18851. and cases cited. S. W. Rep. 863; Beckett v. N. W. Ma- 4 State v. Hendel (Idaho), 35 Pac. Rep. sonic Aid Ass'n (Minn.), 69 N. W. Rep. 836. 923. 5 Blue v. Aberdeen & V. E. R. Co. (N. 3 Mangban v. Burns Estate (Vt.), 23 Atl. C.), 23 S. E. Rep. 275. Rep. 583; St. Louis & S. F. Ry. Co. t>. 6 Johnson v. Coles, 21 Minn. 108 [1874]; Bradley, 54 Fed. Rep. 630; HowL.nd v. Wabash ft. Co. v. Defiance (Ohio), 40 N. Oakland St. Ry. Co. (Gal.), 42 Pac. Rep. E. Rep. 89. 284.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 281 the usual order of introducing testimony. It may permit experts to testify before the establishment of facts by the other witnesses. 1 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. 2 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. 3 The extent to which the temper and disposition of a witness may be shown on cross-examination is largely within the discretion of the trial court; 4 and the extent to which it may be pursued to test his memory is within the discretion of the court. 5 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, 6 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. 7 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. 284. 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 offices and 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 1 City of Denver v. Dunsmore, 7 Colo. 4 Czezewzka v. Benton-Bellefontaine Ry. 328 [1884]. Co. (Mo. Sup.), 25 S. W. Rep. 911. 2 Ha. land v. Lillienthal, 53 K Y. 438 5 Noblin v. "State (Ala.), 14 So Rep. 767. [1873] ; People v. Angaberry, 97 N. Y. 501 6 Blenkiron u. State (Neb.), 58 N. W.Rep. [1884]. 587. 3 Davis v. United States, 17 Sup. Ct. Rpp. 7 Northern Pac. R. Co. v. Urlin, 15 Sup. 360. Ct. Rep. 840. 282 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 285. 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. 1 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 opinions may be given without fear of punishment. 8 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. 2 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. 3 A question which elicits a reply based on a mere arith- metical calculation is not objectionable as calling for expert testimony. 4 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. 6 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. 6 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. 285, 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. 2 Furgeson v. Habbell, 97 N. Y. 507 5 Bel air v C. & N: W. R. Co.. 43 la. 662; [1884]. Van Wyclen v. City of B., 118 N. Y. 424 3 Staff ords v. City of Oskaloosa,64Ia. 251 [1890]. [1885]. Overby v. Chesapeake & O. Ry. 6 Overby v. Chesapeake & O. Ry. Co., Co. (W. Va.), 16 S. E. Rep. 813. (W. Va.), 16 8. E. Rep. 813. 4 Witmark v. Manhattan Ry. Co. (N. Y. 285.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 283 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, 2 whether stairs were located in a safe place in a building, 3 as to the effect of water in disintegrating mortar of a wall, 4 as to the value of real estate, 5 whether a survey was actually located on the ground or was made in the office from plats, 6 and whether wood was, or was not, rotten. 7 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. 8 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; 10 if a certain arrangement of machinery is dangerous; n as to the safety and fitness of a belt-fastening when a piece of the belt and the fastenings are before the jury; la as to how much limestone is beneath a railroad and its value per ton; 13 as to what hard-pan is and whether any was found; 14 as to how much a man can improve his hand- writing in a short time. 15 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. 16 Witnesses 'cannot give any opinions as to the legal effect of documents or events, 17 nor will their opinion be received as to the amount of damages suffered in an action for damages; 18 nor as to whether a certain ailment would bring to a man the knowledge that he was not in perfect health. 19 1 Furseson v. Hubbell, 97 N. Y. 507. E. Rep. 952 [1887]. 2 Stone fl. Bishop (Vt.), 22 Rept'r. 319 H Freeburg v. St. Paul Plow Works [1886]. (Minn.), 50 N. W. Rep. 102G; Kaufman . 3 Underwood v. Waldron, 33 Mich. 232 Maier (Cal.), 29 Pac. Rep 481. [1876]. 12 Harley v. Buffalo 0. Maiifg. Co. (N. 4 Naughton . Stagg, 4 Mo. App. 271 Y. App.), 36 N. E. Rep. 813. 1 1877]. l9 Reading & P. R. Co. v. BaUhaser (Pa.), 5 Schwander v. Birge, 46 Hun 66. '13 Atl. Rep. 294 [1888]. 6 Reast v. Donald (Tex.), 19 S. W. Rep. u Currier v. B. & M. R. R. , 34 N. II. 795. 498. 1 Reynolds v. Van Beuren, 31 N. Y. 1S McKeone v. Barnes, 108 Mass. 344 Supp. 827. [1871]. 8 Springfield Fire & Marine Ins. Co. 0. 16 Shufeldt v. Searing. 59 111. App. 341. Payne (Kan. Sup.), 46 Pac. Rep. 315; but " Thompson . Brannin (Ky.), 21 S. W. see Little Rock, etc., Ry. Co. t>. Alister Rep. 1057. (Ark.), 34 S. W. Rep. 82 ; and Joske v. 18 Tingley . City of Providence, S R. T. Pleasants (Tex. Civ. App.), 39 S. W. Rep. 493; affirmed, Brown v. Providence R. Co., 586 [1897]. 12 R. I. 238 [1879]. 9 Turner . Haar (Mo.), 21 S. W. Rep. I9 Mut. L. Ins. Co. of N. Y. . Simpson 737. (Tex.), 28 S. W. Rep. 837. 10 Sch winger v. R-iymond (N. Y.), 11 N. 284 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 286.. 286. 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 them. " to form an accurate judgment thereon and no better evidence than such opinions is attainable. 1 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. 8 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. 3 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. 3 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. 4 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 where 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. 5 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," 6 though he may, as an expert, show the effect of a knot or cross-grain upon the strength of a timber supporting the scaffold. 7 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 1 Van Wycklin v. City of Brooklyn, 118 4 The C. R. J. & P. R. R. Co. v. Moffit, N. Y. 424 [1890]; Pacbeco v.'Judaon Mfg. 75 111. 524. Co. (Cal.), 45 Pac. Rep. 833; Ewing . 5 McDonald v. State (N Y ) 27 N E Goode (C. C.), 78 Fed. Rep. 442. Rep. 358 [1891]; Eastman v. State. 27 N. 2 Hunt v. Lowell Gas Lt. Co., 8 Allen E. Rep. 358 ; Hughes v. Muscatine Co , 44 169; B. & L. Tpke. Co. v. Cassell, 66 Md. Iowa 672. 419 [1886]; Butler v. Chicago, B. & Q. R. 6 Mauer v. Ferguson, 17 N. Y. Supp. Co., 54 N. W. Rep. 208; Yeaw v. Williams 349. 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. 4 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; 5 but any facts may be assumed which the evidence tends to establish. 6 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. 7 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. 8 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, 10 while others have allowed questions that embrace facts deducible from the evidence, 11 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 Spanker (la.), 61 Ct. Rep. 618; Darling v. Thompson N. W. Rep. 1072; Neudeck v. Grand (Mich.), 65 N. W. Rep. 754. Lodge, 1 Mo. App. 330. ? Prentiss v. Bates (Mich.), 50 N. W. ' Frankfort v. Manhattan Ry. Co., 33 N. Rep. 637. Y. Supp. 36. 3 Stoddard 0. Town of Winchester 8 Bedford Belt Ry. Co. v. Palmer (Ind. (Mass.), 32 N. E. Rep. 948. App.), 44 N. E. Rep. 688. 4 Deig v. Moorhead (Ind.), 11 N. E. Rep. 9 Stanwick v. Butler-Ryan Co. (Wis.), 458 [1887]. 67 N W. Rep. 723. 5 North Amer. Ace. Ass'n v. Woodson 10 Prentiss . Bates (Mich.), 50 N. W. (C. C. A.), 64 Fed. Rep. 689. Rep. 637. 6 Hicks v. Citizens' Ry. Co. (Mo.), 27 S. ll Peoples Vanderhof (Mich.), 39 N. W. 286 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 288. the evidence fairly tends to prove, though they may not be fairly proved. 1 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. 8 If the facts on which the "opinion is based are dis- puted, their truthfulness may be assumed hypothetically. 8 It has been held even that a hypothetical case stated need contain only such facts as tend to support counsel's theory of the case. 4 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. 5 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. 6 Generally, an expert witness should not be allowed to testify to- hypothetical questions based upon facts a part of which only have been proved. 7 The fact that the names of the parties to the suit are mentioned in putting hypothetical questions is not objectionable. 8 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. 9 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. 10 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. 11 An opinion may be asked of a physician as to what would be the result of a disease in the natural and ordinary coarse to wit, that the plaintiff would never be any better and never be able to strengthen his limbs. 12 288. 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 v. Durrant (Cal.), M.), 34 Pac. Rep. 544. 48 Pac: Rep. 75 [1897]. 8 Lee v. Heuman (Tex.), 32 S. W. Rep, 1 Hall v. Rankine (Iowa), 54 K W. Rep. 93. 217; Kelly v Perrault (Idaho), 48 Pac. 9 Roreback v. PeDna. Co. (Conn.), 20 Rep. 45 [1897]. All. 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. 3 Frankfort v. Manhattan Ry. Co., 33 578. N. Y. Supp. 36. 10 Deig v. Morehead (Ind.), 11 N. E. Rep. 4 Bowen v. City of Huntington (W.Va.), 458 [1887] ; see also Baltimore & L. T. Co. 14 S. E. Rep. 217. *> Cassell, 66 Md. 419 [1886]. 5 K. C., M. & B. R. Co. v. Webb (Ala.), n Graves v. Pemberton (Ind. App.), 29 11 So. Rep. 888. . N. E. Rep. 177. 6 Vermillion A. W., etc., Co. v. Vermil- 12 Stromm v. N. Y., L. E. & W. R. Co., 96 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. semble, 111. Silver M. & M. Co. v. Roff (N. 289.] ENGINEERS AND ARCHITECTS EMPLOYMENT. 287 facts 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. 1 Thus an engineer who has had charge of the erection of a wall may testify whether or not it was properly and compactly constructed. 3 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. 3 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, 4 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. 5 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. 7 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. 8 289. 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. 9 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 1 In re 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. 3 Pullman v. Corning. 9 N. Y. 93. Ry. Co. v. Pulaski I. D. Co. (Colo.), 35 3 Conrad v. Trustees, 16 N. Y. 158 [18571. Pac. Rep. 910, bridge abutments ob- 4 Morgan v. Fremont Co (la.), 61 N.W. strutting an irrigation ditch ; Helfenstein Rep 231. v. Mednrt (Mo. Sup.), 36 S. W. Rep. 863,. 5 Washington C. & A. T'p'ke v. Case speed of a bursted grindstone ; Sneda v. (Md.) f 30 All. Ren. 571; Buckalew v. 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 ; Egarr 606. v. Dry Dock, etc., R. Co. (Sup.), 42 N. Y. 6 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 1 Bramble v. Hunt, 22 N. Y. Supp. 842. [1878]. * Galveston, H. & S. A. Ry. Co. . Dan- 288 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 290. .and knowledge upon the subject; it is their province to weigh the opinions offered, the time devoted, and other circumstances, and to apply to them their own experience and knowledge of the character of such questions. 1 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. 2 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. 3 290. 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. 4 Nor can the opinion of other witnesses be admitted to show the 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 the court alone." 8 Although a surveyor may in some instances be called upon to explain or account for a mistake in a survey, 7 or give his opinion as to how he would locate a tract similar to the one in controversy, 8 yet he may not give his own construction of the description and survey, nor determine what are the con- trolling calls of the deed. 9 Though his evidence may be admitted to aid in locating the land by the description in the deed, 10 he cannot determine the location of a tract according to a description when it is a duty devolving upon a jury. 11 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. 18 He is a qualified witness to test and 1 Head 10. Hargrave, 105 U. S. 45. 9 Whittesley v. Kellogg, 28 Mo. 404; * Leittensdorfer v. Kind's Admx., 7 Colo. Tate v. Fratt (Cal.), 44 Pac Rep. 1061. 436 [1884]. iCornwell v. Cornwall, 91 111. 414. 3 People 0. Vanderhoof (Mich.), 39 N. [1879]; affirming Colcord v. Alexander, 67 W. Rep. 28 [1888] ; The Conqueror, 17 111. 584; Ormsby v. Ihrasen, 34 Pa. St. Sup. Ct. Rep. 510; Ewing . Goode (C. 462. C.), 78 Fed. Rep. 442. " Schultz v. Lindell,30Mo. 310; Blumen- 4 Twogood v. Hoyt, 42 Mich. 609. thai v. Roll, 24 Mo. 113; Randolph v. 5 Public School v. Risley's Heirs, 40 Mo. Adams, 2 W. Va. 519. 556. 1J Bugbee Land Co. . Brents (Tex. Civ. 6 Norment v. Fastnaught, 1 McArthur App.), 31 S. W. Rep. 695. 515. ls Rapley v. Klugh (S. C.), 18 S. E. Rep. 7 Forbes v. Caruthers, 3 Yeates 527. 680. 8 Farr v. Swan, 2 Pa. St. 245. 291.] ENGINEERS AND ARCHITECT'S EMPLOYMENT. 289 apply data on a map, in determining their sufficiency as guides by which to ascertain a location. 1 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. 3 If skilled in masoii 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; 3 and if a builder, he may testify as to the meaning among mechanics of " smoke- stack." 4 291. Qualifications 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. 5 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. 6 They have been defined as " men of science," T "persons professionally 8 acquainted with the sciences or practice," 9 " con- versant with the subject-matter," 10 " persons of skill," " "experienced per- sons," ia possessed of some particular science or skill respecting the matter in question. 13 No precise knowledge is required. It is enough if the witness shows an acquaintance with the subject as to qualify him to give an opinion. 1 * 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 and 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. 16 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 1 Grand R L & D. R Co. v. Chesebro ' Folkes t>. Chadd, 3 Doug. 157. (MiclO, 42 N. W. Rep. 66 [1889J. 8 Jones v. Tucker, 41 N. H. 546. 8 Cargill v . Thompson (Minn.), 59 K W. 9 Strickland on Evidence. Ren 638 10 Best on Evidence. 3 Elgin . Joslyn (111.), 26 N. E. Rep. Rochester v. Chester, 3 N. H. 349, 365. 1090 [1891]. 12 Peterborough fl. Jaffrey, 6 N. H. 462, 4 SkeltonV Fenton Elec. L. & P. Co. 464. (Mich.), 58 N. W. Rep. 609 13 Beard v. Kirk, 11 N. H. 397. 8 Pa"-e v Parker 40 N. H. 59 [I860]. u Terre Haute . Hudnutt, 112 Ind. 542. 6 Louisville, E , & St. L. R. Co. v Don- 15 Rogers' Expert Test. 28; People v. iicgun 111 Ind. 179; 58 Ala. 290; 92 Ind. Thackery (Mich.), 66 N. W. Rep. 562. 464; 102 Ind. 138. 290 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 291. thinks he can state what is a safe rate of speed, is qualified to testify as an expert in regard thereto. 1 Mere opportunities for observation are not suf- ficient; thus the opinion of a civil engineer on the sufficiency of a highway was held incompetent, 2 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 ; 4 but per- sonal experience with and care of stock will qualify a witness. 6 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. 6 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 ; 7 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. 6 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. 10 Nor can a brick and stone mason give an opinion as to what caused the floors and walls of a building to collapse. 11 It has therefore been held that a witness familiar with earth dams could not testify as to a dam built of wood, 18 and that the apparent safety of an embankment cannot be judged by one who has merely seen it collapse. 18 One who has been a civil and hydraulic engineer for several years is qualified 1 Helfenstein v. Medart (Mo. Sup.), 36 S. 7 Dane v. State (Tex.), 35 S. W. Rep. W. Rep. 863. 661. 2 Benedict v. City, 44 Wis. 495. 8 Davis v. Mills (Mass.), 40 N. E. Rep. 3 Taylor v. Town of Monroe, 43 Conn. 852. 43; accord, Bergen Neck Ry. Co. v. Pt. 9 State v. Martin (S.C.), 25 S. E. Rep. 113. Breeze F. & J. Co. (N. J.), 30 Atl. Rep. 10 Kilbourne 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 Pears-m v. Zehr (111.), 29 N. E. Rep. 12 Weidekind . Twolume Co. W. Co 854; semble, State v. Dixon (La.), 16 So. (Cal.), 25 Pac. Rep. 311. Rep. 589. 13 Central R. Bkg. Co. . Kent (Ga.), 10 6 Grayson v. Lynch, 16 Sup. Ct. Rep. S. E. Rep. 965. 1064. 291.] ENGINEERS AND ARCHITECT'S EMPLOYMENT. 291 to testify as an expert in matters touching civil and hydraulic engineering. 1 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 1 ditch, and was able to verify his estimate from such stakes, is competent to testify to the cost of completing the ditch. 8 His testimony has been admitted to prove that stakes were surveyors' stakes; 3 that piles of stones and marks upon trees were monuments of a boundary; 4 that a particular lino was marked by government surveyors. 5 They have been permitted to give, results of surveys made, and the relative position of the line to exist- ing monuments, fences, and buildings ; 6 their opinions have been allowed: upon the location of boundary lines which had not previously been officially' located. 7 These, however, cannot be allowed if the true location of the 1 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. 8 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, 9 to- show what is a reasonable time in which a contract shall be performed; 10 as'. to the value of the work done, 11 or the cost of construction of a house; 12 as to* whether abridge was skillfully constructed with reference to a creek; 13 as ta the proper size of the base of certain columns; u 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 ; 5 to establish that a crack in iron machinery could have been ascertained in certain ways; 18 as a defect in a car- wheel by the hammer test; !7 to prove the faulty construction of a dock; 18 that in order properly to carry out a construction contract, certain methods of ' erection and certain work done were necessary; 19 and what the rule is as to^ constructive measurements. 20 1 Egger v. Rhodes (Gal.), 37 Pac. Rep. I2 Woodruff v. Imp. F. Ins. Co., 1037; and see 5 B. & A. 64. 133. 2 McDonald v. Dodge County (Neb.), 60 13 Bellinger v. N. Y. Central R. CcH,23; N. W. Rep. 366. N. Y. 42. 3 McGrann v. Hamilton (Conn.), 19 Atl. 14 Linen v. Paris L. & G. E. Co. (Tex.); Rep. 376 [1890]. 15 S. W. Rep. 208 [1891]. 4 Davis v. Mason, 4 Pick. 156. 15 Callau v. Bull (Gal.), 45 Pac. Rep. 1017. 5 Barrou . Cobleigh, 11 N. H. 557; Wai- 16 Pacheco v. Judson Mfg. Co, (jOal.), lace v. Goodall, 18 N. H. 439; 24 Ala. 390. 45 Pac. Rep. 833. 6 Messeru. Regunter, 32 la. 312. Pittsburgh, etc., Ry. Co. v. Sheppard 7 Kinsley v. Crane, 34 Pa. St. 146. (Ohio Sup.), 46 N. E. Rep. 61. 8 Clegs: a. Fields, 7 Jones' Law (N. C.) 37; 1R Munroe v. Godkin (Mich.), 69 IT. W. Tate v. Fratt (Gal.), 44 Pac. Rep. 1061. Rep. 244. 9 L. E. & St. L. Ry. Co. u. Donnegan, 19 Haver 0. Tenney, 38 Iowa 80 [1875]; 111 Ind 179. see also Hamilton v. Railroad Co., 36* 10 Goddard v. Crefield Mills (C. C. A.), 75 Iowa 81. Fed. Rep. 818. 20 Ambler 0. Phillips (Pa.), 19 Atl. Repv 11 Crawford v. Wolfe, 29 Iowa 567. 717. * See Sees. 286 and 290, supra. 292 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 291. Engineers, architects, and surveyors may in general testify to any opin- ions which belong peculiarly to their occupation and business. 1 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; 2 and an engineer may testify as to the necessary capacity of a sewer, 3 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. 6 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, 8 and the same may be said 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, 7 as to the amount and value of labor, based upon a given state of facts and their personal knowledge to a certain extent of the work done; 8 that a wall though a little out of plumb is just as valuable for the purpose for which it was built; 9 and blacksmiths may testify as to the quality and condition of a piece of iron. 10 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. 11 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; ia 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; 18 and a witness having twenty years' experience in the construction of railroads to 1 Chamberlain v. Dunlop (Sup.), 8 N. Y. 9 Stiles v. Neillsville M. Co. (Wis.), 58 Supp. 125. N. W. Rep. 411. 2 St. L. & T. Ry. v. Johnston (Tex.), 15 10 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 Atl. n Gulf C. & S. F. Ry. Co. . Hepner Rep. 830. (Tex.), 18 S. W. Rep. 441; K. C. Ft. S. & 4 McNight Stone Co. v. 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]. 12 St. L. I. M. & S. Ry. v. Lyman (Ark.), 6 Haas v. Green (Com. PI.), 27 N. Y. 22 S. W. Rep. 170, 213. Supp. 347; Bears v. Copley 10 N. Y. 93. 13 Ethridge v. San Antonio Ry., etc., Co. 7 Shulte v. Hennesy, 40 Iowa 352 [1875]. (Tex.), 39 S. W. Rep. 204. 8 Crawford v. Wolf, 29 Iowa 567 [1870]. 291.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 293 his credit, after describing the manner in which the culvert was constructed, may testify that it was not properly constructed. 1 A person whose knowl- edge of coal veins and overhead and underlying strata is entirely theoretical 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. 2 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. b An expert engineer may give his opinion that certain culverts through an embankment would materially help in draining certain lands; 4 and that from certain statements given in the testimony of another engineer there is a certain quantity of stone in a wall. 5 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; 6 as to what it was worth to build a structure; 7 as to the usual and proper way of removing paint; 8 as to the construction, strength, and suffi- ciency of a building; 9 to prove that black means white, in showing a usage of trade; 10 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; ia and current prices of materials may be shown by schedule of established prices in the trade. 13 The reasonable value of professional services as those of an engineer, architect, or physician, may be shown by an expert in the same profession. 14 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. 14 The qualifications of such witness to testify as to the value of services may be tested by the opinions of other experts. 15 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. 1 ' To determine handwriting an expert may give his opinion that the body 1 Bonner v. Mayfield (Tex.), 18 S. W. Holyoke Mut. Fire Ins. Co. (Mass.), 33 N. Rep. 305. E. Rep. 572. 2 Lineoski v. Susquehanna Coal Co. (Pa. 9 Turner v. Haar, (Mo ) 21 S. W. Rep. Sup.), 27 All. Rep. 577. 737. 3 Galveston H. & S. A. Ry. Co. v. 10 Mitchel v. Henry, 15 Ch. D. 181. Brings (Tex.), 23 8. W. Rep 503. Barry v. Bennett, 7 Met. 254. * Willite 0. C..B. & K. C. R. Co. 12 Stiles v. Neillsville Mill Co. (Wis.), 58 (Iowa), 55 N. W. Rep. 313. N. W. Rep. 411 ; Chamberlain v. Dunlop 5 Moerling v. Smith (Ind.), 34 K E. (Sup.), 8 K Y. Supp. 125. Rep. 675; see also Vulcanite Paving Co. v. 13 Morris v. Columbian Iron Works (Md.), Ruch (Pa.), 23 Atl. Rep. 555. 25 Atl. Rep. 417. 6 Broadhead v. Wiltse, 35 Iowa 429; u Lee v. Heuman (Tex.), 32 S. W. Rep. citing also 6 Iowa 380, 386, and 30 Iowa 93. 456. 15 Buehler v. Reich (Com. PI.), 18 N. Y. 7 O'Keefe v. St. Francis' Church, 59 Supp. 114 [1892]. Conn. 551 [1890]. 16 Pierce v. Boston (Mass.), 41 N. E. Rep. 8 First Cong. Church of Rockland v. 227. 294 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 292. and signature of an instrument were written by the same person, 1 but the genuineness of a signature cannot be proved by simple comparison. 2 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. 3 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. 4 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. 5 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. 6 292, 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, lor 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. 7 The engineer may employ almost any reasonable means to explain his reasoning and deductions, such as blackboards, 8 diagrams, 9 maps, 10 models, and photographs. 11 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 aline 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. 12 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. 11 1 Reese fl. Reese, 90 Pa. St. 89 [1879]. W. P. Co. (Me. Sup Ct.), June [1886] * Bevan t>. Atlanta Nat. Bk. (111.), 31 N. 8 McKay . 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. 3 In re Gordon's Will, 26 Atl. Rep. 268. 10 Shook v. Pate,50 Ala. 91 [1874]; Cnlu- 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. 5 Galveston H. & S. A. Ry. Co. v. Dan- 215. iels (Tex.), 20 S.W. Rep. 955. n 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. I2 Shook v. Pate, 50 Ala. 91 [1874j, 7 Lewiston S. M. Co. v. Audroscoggin 292.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 295 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. 1 It is generally a matter within the discretion of the presiding officer 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, 2 or a section of a human body to show the exact location of certain parts, 3 or a sample of needlework by a person who has lost her capacity to do such work. 4 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. 5 The trial court may in its discretion permit the jury to go from the court-room and view the premises, 6 and the court's refusal to permit such excursion is not review- able on appeal. 6 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 Plaster casts of a person's mouth and the teeth supposed to fit them, 8 impressions of a horse's mouth in wax and plaster, 9 weapons used and clothes worn, 10 are instances recorded. Courts have permitted chemical tests of the ink with which a paper has been written, 11 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. 12 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 1 Western & A. R. Co. v. Stafford (Ga.), 117 Mass. 122, spots of blood; Herman . 25 S. E. Rep. 656; accord, Clegg *>. Metro- State, 41 N". W. Rep. 171. politan Ry. Co. (Sup.), 37 N. Y. Supp. 6 Board of Comm'rs v. Castetter (Ind.), 130. 33 N. E. Rep. 986; see also 14 Gratt. 448. 2 Mayor v. Pool (Tenn.), 19 S. W. Rep. 7 City of Sbelbyville v. Brant, 61 111. 325 [1892]. App. 153. 3 Knowles u. Crampton (Conn.), 11 All. 8 Commonwealth v. Webster, 5 Gush. Rep. 593 [1888]. 295. 4 Yountrstown Bridge Co. v. Barnes 9 Earle v. Lefler, 46 Hun 9. . Desmond, 103 Mass. 439. 445; and see 12 Amer. & Eng. Ency. Law I City of McPherson v. Nichols (Kan.), 169. 29 Pac. Rep. 679. 16 De Baker v. Southern Cal. Ry. Co. 8 Stone v. Halstead, 62 Mo. App. 136. (Cal.), 39 Pac. Rep. 610. 9 Penna. Co. v. Horton (Ind. Sup.), 31 " McGhee Irrigating Ditch Co. . Hudson N. E Rep. 45. (Tex. Sup.), 22 S. W. Rep. 398. 10 Brennan v. Vogt (Ala.), 11 So. Rep. 18 Calhoun v. Ross, 60 111. App 309. 893: Williamson v. Brandenburg (Ind.) 19 Texas & P. Ry. Co. v. Black (Tex.), 27 32 N. E. Rep. 1022. S. W. Rep. 118. II Andersons. Anderson (Ind. Sup.), 40 20 Skelly v. New York El. R. Co., 27 N. N. E. Rep. 131. Y. Supp. 304. 18 Hawkins v. Thomas (Ind. App.), 29 N. 293.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 297 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. 3 Courts have taken judicial notice of the government surveys and the legal subdivision of public lands; s of the initials used in surveys and descriptions; * of the magnetic variation of a needle from the true meridian; 5 that railroad lines are marked out and the grades fixed by the company's engineer; 8 that trains running upon a railroad are run, directed, and controlled by the owners of the road; 7 that it is within the scope of a section-foreman's agency to keep both the track and right of way in proper condition; 8 of what everybody knows incident to railway travel; 9 but not that C. B., & Q. R. Co. means the Chicago, Burlington and Quincy Railroad Company; 10 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. 12 The court 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 ; 13 that a person with an artificial leg can stand; 14 that whisky, apple-brandy, and a whisky cocktail are intoxicating; 15 that kerosene is inflammable, 18 but not that it is refined coal-oil or earth-oil. 17 These examples are sufficient to show what the courts may take 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. 293. Right to Use Models and Make Tests Rests with Trial Court. While illustrations bearing more directly upon engineering are the use of 1 Canavan v. Stuyvesant, 27 N. Y. Supp. Iowa 185. 413. n Globe Printing Co. v. Stohl, 23 Mo. 2 North Chicago St. R. Co. v. Cheetham, App. 451. 58 111. App. 318. i 2 Luke v. Calhoun Co., 52 Ala. 115. 3 See cases 12 Amer. & Eng. Ency. Law 1S Hunter v. New York, O. & W. Ry. 171. Co. (N. Y.), 23 N. E. Rep. 9. 4 Kile v. Yellowhead, 80 111. 208. u New Jersey Traction Co. i>. Brabban 5 Bryan v. Beckley, Litt. Sel. Cas. (Ky.) (N. J.), 32 Atl. Rep. 217. 91. 15 Schlicht v. State, 56 Ind. 173; Thomas 6 Alabama M. Ry. Co. . Coskey (Ala.), v. Commonwealth (Va.), 17 S. E. Rep. 9 So. Rep. 202. 788; United States . Ash (D. C.), 75 Fed. 7 South, etc., R. Co. . Pilgreen, 62 Ala. Rep. 651. 305. 16 Wood v. N. W. Ins. Co., 46 N. Y. 8 Mobile & O. R. Co. v. Stinson (Miss.), 421; State . Hayes, 78 Mo. 307. 21 So. Rep. 522. " Bennett . N. British Ins. Co., 8 Daly 9 Dowoie v. Hendrie, 46 Mich. 498. (N. Y.) 471. 10 Accola 0. Chicago, B. & Q. R. Co., 70 298 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 294. 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, and the disposition, impressions, and intelligence of the court and jury. 294. 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 : x "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 apply 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/ " 2 "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 roomfull 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. 3 * It is absurd to call upon the 1 William J. McAlpine before the tell the contents of a stomach on the stand. American Society of Civil Engineers, 1870. Eastharn v. Riedell, 125 Mass. 585, and 2 This is justified by the courts, for an Insurance Co. . Tobin, 32 Ohio St. 96. engineer can no more be expected to an- 3 Newlan v. Dunham, 60 111. 233. An wer 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- stand, 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 make the estimate and do the necessary calculations, he may be asked if he can make them. ED. 296.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 299 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." 295. 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. 1 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. 1 296. Compensation Reward 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. Ehode 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 and Illinois, on the other hand, refuse to acknowledge the right to extra compensation, and require experts to attend their courts and give their opinions with no compensation more than that allowed to any other witness. 4 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- 2 See Statutes of the States. not answer categorically. Quinn u. 'Rules of Practice in Chancery, 104 O'Keeffe (Sup.), 41 N. Y. Supp. 116. Mass, 573. 1 Lawrence v. Samuels (City Ct.), 44 N. 4 Indiana Revised Statutes, 1881, p. 94, Y. Supp. 602. 504. 300 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 296. their fees were paid or secured to them. 1 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. 2 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. 3 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 1 held that he need not answer questions involving professional skill and knowledge. 4 This deci- sion was, however, opposed by two dissenting judges, 5 and can have little weight to-day from the fact that a statute has been passed opposed to the decision. 6 It is established law in England that a witness selected and called for hi& 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 the 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. 7 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 semble 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 studies, but a necessary result of their calling. l Exparte Dement, 53 Ala. 389, 5 Tex. Alb. L. j! 242. App. 374, 112 111. 540. 5 Dills v. State, 59 Ind. 15. 2 Clark County. Kerstan (Ark.), 30 S. 6 Indiana Revised Statutes 1881, p. 94, W. Rep. 1046. 504. 3 Ex parte Dement, 53 Ala. 389. 7 Rogers' Expert Testimony 256. 4 Buchannan v. State, 59 Ind. 1; 8. c., 17 298.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 301 297. Expert Witness in Civil and Criminal Cases Distinguished. Whether the power of a court in civil 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, would be upheld by higher courts, cannot be foretold. In criminal cases where 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 titter 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. 298, If Expert Has Knowledge of Facts of Case, He must Testify. If an expert takes the stand and without protestation testifies in part to facts 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. 1 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. 2 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. 3 It has been held that where an agreement is made by one to go into oourt 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 c.'uim, and, though testifying, and advising counsel as to questions 1 Wright v. The People, 112 Ills. 540 Rep. 451. [1884] 3 Board Com'rs Larimer County v. Lee 2 Flinn v. Prairie Co. (Ark.), 29 S. W. (Colo. App.), 32 Pac. Rep. 841. 302 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [ 299. to be asked him and other witnesses, he is not asked any question as an expert. 1 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 had notice of the limitation of the attorney's authority, or agreed to look solely to the attor- ney for compensation. 2 299. 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. 300. 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 examination for the purpose of testifying. 3 Where there has been no special contract with 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. 4 301. Legislation is Needed to Improve Expert Testimony. In con- clusion, it may be said that the law of expert testimony is in 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 his own state. 1 Barrus v. Phaneuf (Mass.), 44 N. E. 8 Rogers' Expert Testimony 261. Rep. 141. * Board Com'rs Larimer County . Lee 5 Mulligan 9. Cannon (Sup.), 41 N. Y. (Colo. App.), 32 Pac. Rep. 841. Supp. 279. 301.] ENGINEER'S AND ARCHITECT'S EMPLOYMENT. 303 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. 1 1 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 seg ; 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. References are to sections. ABSENCE : A cause for dismissing an employee, 205 ABSOLUTE ACCURACY : Not required of a professional man, 229, 258 ACCEPTANCE (see also OFFER AND ACCEPTANCE): Of offer : Must be absolute, positive, and uncon- ditional, 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 No acceptance amounts to a rejection, 96 By post or telegraph, 95 Is completed by mailing of letter or delivery of message of acceptance, 95 Massachusetts rule that message of ac- ceptance must be communicated to offerer, 95 Letter addressed, stamped, and mailed is presumed to have been received, 95 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 that will create a binding contract, 183 For public work, 170-171, 182-184 Conditioned on execution of formal contract, 91, 97, 183, 797 For private work, 188 Of works : 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 ACCOUNT BOOKS : Use of, in court by officer of company, 278 ACKNOWLEDGMENT : Of old debt revives it, and forfeits pro- tection of statute of limitations, 118 ACQUAINTANCE : Of expert with facts of case, 288 ACTION BY CONTRACTOR : Against engineer for want of care and skill, 246-248 ACT OF INCORPORATION : Powers of company limited to those ex- pressly conferred, 44, 138 ADMINISTRATOR, see EXECUTOR AND ADMINISTRATOR ADMISSIONS : Of engineer: To contractor, evidence of, 249A 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, 133 For proposals to do work, 132 Of public work : Objects to be attained, 92, 132 Form to be adopted, 134, 135 Form of advertisement given, 133-135 Cannot be changed by verbal explana- tions, 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, 164 305 306 INDEX. References are to sections. ADVICE : Of one expert to others, 294 ADVISER : Expert, to attorney, 295 AGENCY : Proof of agency, 31 May be shown by parol evidence, 123 AGENT (see also ENGINEER on 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 Private instruction 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 prin- cipal, not of agent, 30-32 Principal or agent bound, 30 Anthority to contract cannot be inferred from business or family relations, 38 Contracts under seal, made by agent, 32 Who is the principal, 37 Agent's acts, ratified or adopted, 34 Description of, in a contract, 30 Of owner : 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 Public officer and agent of private party, 31 AGREEMENTS (see also CONTRACTS) : For extras must be supported by a con- sideration, 66 To stifle competition, 148 Must have a consideration, 69, 131 ALIEN LABOR : Statute forbidding the importation, 136 Employment of, prohibited on public works, 144 ALTERATIONS : Of terms of a contract, 69, 122-126 In terms of bid when contract is executed, 156 Effect of: On surety, 20-22 AMBIGUITY (see also PAROL EVIDENCE; WORDS AND PHRASES): Cleared up, by parol evidence, 122-126 ANY AND ALL BIDS (see also BIDS): Right to reject, 171, 172 APPROPRIATIONS : For the work : Contractor should watch them, 44-47 Should not be exceeded, 44-47 Excess ratified by legislature, 46, 141 ARBITRATORS (see also ENGINEER OR ARCHITECT): Not liable for want of care and skill, 247 Must be dishonest or fraudulent to make liable to an action, 248 Position an " absurd " one, 248 ARCHITECT (see also ENGINEER OR ARCHITECT) : His property in plans and specifications, 215, 216-222 ARCHITECTURE : Questions in, the subject of expert testi- mony, 291 ARTICLE : Sale of article to be manufactured, 101 Patented, in bids for public work, 163 164 ASSENT : An essential element of a contract, 88-97 ASSESSMENTS : May be vacated when contract is illegal, 157 ASSIGNABLE : Contracts : For personal service, 13-16 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 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 as- signable, 14 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 ASSISTANTS : Recovery for services of, 214 Liability for the acts of, 243 Liability of public officers for acts of. 253 ' INDEX. 307 References are to sections. ASSOCIATIONS : Unincorporated, parties to contract, 48 ATTORNEYS, see LAWYERS. ATTORNEY-GENERAL : Intervention of, when contract is not let to lowest bidder, 177, 178 AUCTION SALE: Compacts to stifle competition, 148 AUTHORITY : To contract : Not proved by business or family rela- tions, 38 AVERAGE ADJUSTER : Not liable for want of care, 249 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 BANKRUPTS : Parties to contract, 27 BENEFICIARY : Of a contract, effect of allowing him to sue on contract, 68 BENEFIT (see also CONTRACTS IMPLIED IN LAW) : Benefit to promisor a consideration of a contract, 61 BIAS: Of expert w. messes, 270 Not confined to experts, 271 BIDS OR PROPOSALS (see also BIDDER ; COMPETITION ; LOWEST BIDDER) : Are but offers, require accepting to make contracts, 132 Invitation to make proposals, 132 Mode of entering into contract, 132 Must be complete and definite, 146 Plans and specifications a part of, 188 There must be competition, 53, 82, 132 140, 148 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 BIDS OR PROPOSALS Continued. Should be a standard for comparison, 153 Should be compared by a common stand- ard, 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- 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 Work undertaken, by what authority, 136 Contracts let in violation of constitu- tional requirement that public work be let to lowest bidder cannot be rati- fied 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 adandoned, 178 Unbalanced bid, not the lowest bid, 54 Unbalanced, evidence of fraud, 149 Extraordinary bids, evidence of fraud and collusion, 54 Fraudulent bid rendeco contract void, 148 308 INDEX. References are to sections. BIDS OR PROPOSALS Continued. For work, for private parties, 186-188 Rights and liabilities of bidders, 132- 185 BIDDERS (see also LOWEST BIDDER ; SURETY) : Formalities to be observed, 151, 152 Propriety of certain requirements and restrictions, 152 Mast conform to reasonable require- ments, 146 Required to name all parties interested, 14 Oath as to truth of statements of bid, 145, 150 Information for, to prepare bids, 133-140 Information should be full, 154 Need not furnish plans, etc., 154 Should see that terms of contract agree with those of bid, 90, 156, 157 Is not benefited by offering a better ma- terial or guaranty, 155 Must take materials furnished by state or city, when included in advertise- ment, 162 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 persons does so at his peril, 155 Act of awarding contract discretionary, 171-173 When can 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 bound, 93 BOARD, MEMBERS OF : Must act as a unit, 39, 40, 48 BOND : Form of, in a proposal, 185, Art. 22 To accompany bid, 167-169 For benefit of laborers, who may sue upon it, 17 BOOKS : Read to the jury, 276 Reading of, to expert witness, 276 Are not evidence of what they contain 276-278 Use of, by expert witness, 276-278 BORINGS : To be made by contractor, 286 Engineer liable for neglect to make, 238 BOUNDARIES : Agreement with regard to, and statute of frauds, 106 BOWLING ALLEY: Contract to erect, held void, 76 BROKERS : Agreements to divide profits, 85 BUILDERS : Agreements between, to refrain from bid- ding, 82, 148 BUILDING: Contract to erect, to be used for immoral purposes, 87 BUILDING INSPECTORS : Of a city, liable for neglect of duty, 239 CARE, see also ENGINEER OR ARCHITECT; EMPLOYEE. CARE AND SKILL (see WANT OF CARE AND SKILL) : Required of a professional man, 226, 237 Required of specialists, 236 CARRIAGE HIRE : For public officers, need not be adver- tised, 164 CARVING AND CUTTING STONE : Act relating to, in New York State, 136, 144 CEREMONY : Attending bids and bidding, 132 CERTIFIED CHECK (see also BIDS AND BIDDERS) : Bids cannot be withdrawn, 181 To accompany bid, 167, 168 Must accompany bid if stipulated for, 168, 169 Liquidated damages or penalty, 168 Forfeiture of, for failure to execute con- tract, 168 Forfeiture of, cannot be relieved, 168 Deposit returned to bidder and accepted, not a waiver of right to contract, 183 CHANGES : In written contracts by parol evidence, 122-126 In work : That release surety, 20-22 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, cannot be made safely, 157 In amount of work, let to lowest bid* der, 157, 158 Must have a consideration, 69 INDEX. 309 References are to sections* CHARTER (see also STATUTES): Limitations, 43-47 Limits powers of corporation, 44, 138 CHARTER REQUIREMENTS : Re lowest bidder, 51 Must be strictly carried out, 51 CHEMIST : His right to discoveries when an em- ployee, 219 CITIZEN'S DUTY : To promote justice applied to an expert, 274 CITY (see also EMPLOYER): Its liability : 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 work done under an illegal con- tract, 143 CITY ENGINEER: Liability for mistakes, 258 CITY OFFICERS : Compared with county officers, 252 CLAIMS : Doubtful claim a consideration for a new promise, 69, 131 CLUBS : Parties to contract, 48 COLLUSION (see also FRAUD AND COL- LUSION): Its effect on bids for public work, 148 Between engineer and contractor, 120, 121 COMBINATIONS : Of contractors to lessen rivalry in bid- ding, 148 To prevent bidding not criminal act, 148 COMMISSIONERS : Of Public Works : Not liable for tortious acts of employ- ees, 253, 259 COMMITTEE, MEMBER OF : Must act as a unit, 39, 40, 48 COMMUNICATIONS : Between owner and engineer not privi- leged, 249A COMPANY OR CORPORATION (see also OWNER ; PARTIES TO CONTRACT): As party to contract, 43-48 Capacity of, to contract, 43 Powers limited to those conferred by charter, 48 Contracts, ultra vires, 43 Information in regard to, 37 Who are representatives of, 37 Relation 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 COMPENSATION (see also EMPLOYEE ; WAGES) : Of engineer or architect, 211-214, 260 Of expert witness, recovery, 296 For injuries while riding on a pass, 264 COMPETITION (see also BIDS AND BID- DERS) : Necessary when law requires it, 148 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, 215 Rights of competitors, 212-214 COMPLETION OF WORK : Time of completion may be changed by parol agreement, 130 COMPROMISE : Of a claim, consideration for new prom- ise, 69, 131 CONCEALMENT OF INJURY : Effect 011 statute of limitations, 119-121 CONDITIONAL ACCEPTANCE : Of a bid, written contract to be executed, 183 CONDITIONS AND STIPULATIONS: In regard to performance and completion of work, 165, 166 Should be enforced, 413 CONDITIONS PRECEDENT : To an appeal to the courts, 86 CONDUCT : Of expert on witness stand, 282 CONFIDENTIAL AGENT: Engineer or architect is not, 219A 310 INDEX. References are to sections. CONGRESS: May ratify invalid contract, 46 CONSENT OF SURETIES : To accompany proposal for work, 169 In form of proposal, 185, art. 19 1 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 Must be legally equivalent to promise, 60, 63 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 Failure of the consideration, 65 An obligation to a party cannot be a consideration for a new promise to the same party, 66 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 binding, 70 Must be present, or coexistent with prom- ise, 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, 62 Must come from promisee, 68 Must come from party to whom promise is made, 68 Compared with subject-matter, 71 Good in 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 Subsequent changes must be for a, 69, 131 Necessary when contract is performed on one side, to a rescission or change in its terms, 69, 131 Mutual promises, for changes and modi- fications in written contract, 131 Misrepresentation and a claim for extra work a consideration for a promise to pay extra compensation, 66, 69 Obligation not enforceable because of infancy, bankruptcy, or statute of lim- itations as a consideration, 64 CONSPIRACIES : To prevent bidding, 141 To prevent competition, 148 CONSTRUCTION CONTRACT also CONTRACTS) : Mode of entering into, 92, 132 (see CONSTRUCTION OF CONTRACT (see also INTERPRETATION OF CONTRACT) : Is for the court, 126 Evidence to assist in, 123-126 Lawful construction will be adopted, 70 CONTEMPT OF COURT : What is contempt, 259A Physician in, for refusing to testify with- out extra pay, 296-298 Purging it, how to do it, 259A CONTENTS, pages vii-xiv CONTRACTS (see also AGREEMENTS ; ASSIGNMENTS ; BIDS AND BIDDERS ; CHANGES ; CONDITIONS ; CONTRACT STIPULATIONS ; OFFER AND ACCEPT- ANCE) : Validity determined by laws of what place, 58 Essential elements of : Parties to contract, 1-56 Between members of trades-union, 82 Considerations of, 60-70 (see also CON- SIDERATION). Mutual assent an essential element of a contract, 88-97 (see also MUTUAL ASSENT). Unilateral and bilateral, 67 Bilateral; a promise for a promise, 93 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 con- tracts, 132 Should contain all terms of agreement, 122 By mail or telegraph, 95 Indeterminate, and statute of frauds, 125 Completion of, postponed until draft of written contract, 91, 97, 183 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 undertaking, 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 INDEX. 311 References are to sections. CONTRACTS Continued. Void or voidable Continued. To erect structures in violation of laws or ordinances, 76 Must not be to invade property riglits, 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 subject-matter of con- tract is unlawful will prevent recov- ery for performance or breach, 75 Must not have a tendency to injure or defraud the government, 75 In violation of immigration, labor, or excise law, 78 Must not be inconsistent with duties and obligations of parties, 84 To refrain from working for a com- pany's interest to the advantage of others is void, 81 By employee to exercise his influence adverse to employer's interest, 85 To not resort to courts for redress, 86 Inalienable right not the subject of contracts, 85 Releasing railroad, express, and tele- graph companies from liability for injuries, 86 To stifle prosecution, 74 For the perversion of the courts, 74 To influence public officers, 73, 74 For public favor or personal influence with public officers, 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 marriage, 87 In violation of Sabbath laws, 59, 79 Void in part only, 159 Valid, are not affected by later act of legislature, 142, 144 (see also RATI- FICATION). Void for irregularities, are not made valid by subsequently rectifying the illegal acts, 141 Illegal contracts for public work can not be legalized by public officers, 141 Illegal contracts may be ratified by legislature, 46, 141, 142 CONTRACTS Continued. To lowest bidder : 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 With party having exclusive franchise, when required 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 Execution of, certified check to insure, 167-169 Not to compete or bid, 81, 82, 148 To stifle competition, 81, 82, 148 By bidders, to share profits of con tract, not enforceable, 148 Interpretation (see also INTERPRETA- TION) : Intention of parties controls, 127 If intention be clear, no explanations will be received, 122 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, made clear by parol evi- dence, 122-126 Condition of parties shown by 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 Written contracts cannot be changed by parol evidence, 122 Void or illegal, a subject of parol evi- dence, 124-127. Right to make changes reserved, 158 Defining engineer's powers, see also ENGINEER OR ARCHITECT. Statutes limiting (see also STATUTE OF FRAUDS; STATUTE OF LIMITATIONS): Promises to pay contractors' debts, within statute of frauds, when, 111 312 INDEX. ^References are to sections. CONTRACTS Continued. Statutes limiting Continued. 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, 201 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 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, 213 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, 200-259 Undertaking on part of employee, 211 Determines rights of employee to his inventions and designs, 219 Implied in law : To prevent unjust enrichment, 67, 108 None implied against public corpora- tion, 143 None, when the law forbids the con- tract, 52, 53, 138 Implied contracts to pay for work used or appropriated, would defeat object of statute requiring competition, 53 Implied by law, when services are so- licited and accepted, 211 CONTRACT FORMS: The introduction, 3 CONTRACTOR : Right to recover depending upon acts of public officers, 54 No recompense for his labors, prepar- ing bids, plans, and specifications for private work, 186. His rights : When he is the lowest bidder, 174, 175 Under orders by individual members of the board, 39 His liability : As a non-judicial officer for negligence in doing duty, as in making repairs, 254 For mistakes of, when he was to lay out his own work, 239 CONTRACTOR Continued. Party to contract, determined by his own act, 50 Consideration of promise of subscribers to pay, 62 Bound by his contract though estimates are wrong, 241 Action against engineer for want of care and skill, 246-248 Must 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, 35, 38, 44 His means of obtaining information of work and parties, 41 CONTRACT STIPULATIONS (see also- SUBJECT OF STIPULATION) : Form of introduction, 3 Designation or description of parties, 4 Agency, power of agent described, 29 Binding personal representatives, 7 Re alterations and extra work : Modified or rescinded by subsequent agreement, 69, 131 COPY (see also EVIDENCE ; EXPERT WITNESS) . Enlarged by photography, 280 COPYING DESIGNS, ETC.: Law forbids, unless sold or published, 216 COPYRIGHT : What is the subject of, 216-218 Necessary to protect published works, 216 Of plans and drawings, 216-218 Of map, etc., made from materials col- lected by others, 222 Of photographs, 2l9 COPYRIGHT LAWS : Have not destroyed author's incorporeal rights in his creations, 216 CORPORATION, see COMPANY. COST OF PUBLIC WORK : If it exceeds a certain amount must be let to lowest bidder, 160, 161 COUNCIL : Individual members, acts of, 39 Members must act as a unit, 39, 40, 48 COUNSELOR : Expert to attorney, 295 INDEX. 31S References are to sections. COUNTY : Sometimes held liable under implied contract, 143 COUNTY OFFICERS: Compared with municipal, 252 Liability of, for lack of skill, 251 COURTS (see also EVIDENCE ; INJUNC- TION ; MANDAMUS) : Contracts to pervert, 74 Contracts not to resort to courts, 86 Cannot by agreement be ousted of juris- diction, 86 Will take notice of notorious facts, 292A May have candid expert opinion, 273 Have little confidence in experts, 269 Expert should gain confidence of, 282 Expert must consider the understanding of court and jury, 269 COVENANT, see also CONDITION ; CON- TRACT STIPULATIONS. CREATIONS : Made from materials collected by others, 222 - Made from materials collected_while an employee, 221 CROSS-EXAMINATION : Of an expert is largely within the dis- cretion of trial court, 289 CUSTOM AND USAGE (see also CON- TRACTS) : To define duties of professional engineer or architect, 211 To show authority to employ assistants, 243 To establish charges of architect held unreasonable, 214 That plans belong to architect, 215 Parol evidence of, received, 123 Of what place controls, 58 DAMAGES : For unskillful performance of work, 235 Measure of, for loss of competitive plans by express company, 215 Suffered by employee for wrongful dis- charge, 209 For injuries while riding on a pass, 264 DATE OF CONTRACT: Time of entering into contract, 59 Importance of date, 59 Date omitted, may be proved, 59 DAYS, see also TIME OF PERFORMANCE OR COMPLETION. DAY'S LABOR: Hours in, fixed by statute, 136, 144 DEATH (see also EXECUTOR AND ADMIN- ISTRATOR ; REPRESENTATIVES) : Representatives after, 7 Terminates contract for personal skill, 11 Of contractor discharges surety, 21 DEBTS : Contract to pay the debt of another, 110 DECORATIONS : Copyright of, by artist, 216 DEFECTIVE MATERIALS (see also MATERIALS) : Liability of engineers, 237 Liability of engineer for not detecting, 238-240 Joint liability of engineer and contractor,. 240 DEFECTS : Fraudulent concealment of, 120, 121 Contractor's liability therefor, 120 Concealed until statutory period of limi- tations has passed, 119-121 DESCRIPTION : Of public work required to be let to lowest bidder, 154 DESIGNS (see also COPYRIGHT ; EM- PLOYEE; PLANS AND SPECIFICATIONS): Property in, of artist, 215-225 Embodied by plans are protected by law, 216 Exhibited in public, rights of author or artist, 216 Rights of purchaser in, 217 Made by employee, 222 Rights of employee in, 219-225 Should be protected by copyright, 216 Of structures, right to copyright, 216- 218 DETRIMENT : Detriment of promisee a consideration of a contract, 61 DIAGRAMS : May be used by expert witness, 292 DISCHARGE OF CONTRACT Law of what place governs, 58 DISCHARGE OF SURETY: By alterations, 20, 22 DISCHARGE OR DISMISSAL: Of employee (see also CONTRACT ; EM- PLOYEE; EMPLOYMENT): What is or is not, 208 Of an employee, 202-210 What will justify, 202-210 If the employee be incompetent, 204 For misrepresentation as to skill, etc., 206 For willful disobedience, 203 For habitual negligence, 205 For disclosing business of employer, 204 * Offense condoned, 207 Measure of damages recoverable, 209 Due to combinations, conspiracies, or boycotts, 204 He may have an action against, who maliciously procures his discharge, 204 INDEX. ^References are to sections. DISCOVERY OF FRAUD: Clues should be followed up, 119 Of public officers : Must be exercised in 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, 244-259 DISCRETIONARY DUTIES : Liability for misconduct in the perform- ance of, 179, 244-249 May not be delegated, 173 DISMISSAL, see also DISCHARGE. DISOBEDIENCE : That will justify the dismissal of an em- ployee, 203 DISABILITIES : Of persons to contract, 23-28 Social, to contracting, 27 Political, to contract, 27 Which prevent operation of statute of limitations, 114 DRUNKARDS : Contracts of, 25 DRUNKENNESS : A cause for dismissing an employee, 204 DURESS : Parties 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, 211, 226-237 As public officers they are presumed to do their duty, 40 Of employee to notify employer, 249A Of owner : To do no act imminently dangerous to others, 242 ELEMENTS OF CONTRACT (see also CONTRACTS) : Four essentials, 1 Parties, 1-56 (see also PARTIES). The consideration, 60-70 (see also CON- SIDERATION). Subject-matter, 71-87 (see also SUBJECT- , MATTER). Mutual assent, 90-97 (see also MUTUAL ASSENT). EMBANKMENT, see also EARTH- WORKS. EMPLOYEE (see also CONRACTS ; EM- PLOYMENT ; ENGINEER OR ARCHI- TECT): Duties and Rights : Rights of, in designs and inventions, 219-225 Rights of, to literary productions, 219 Right to things created outside of office hours, 220 Cannot copyright charts made from Government surveys, though con- ducted by himself, 222 His right to his inventions, 223-225 In making inventions should assume the cost. 225 His duty to give notice, 249A Statute giving right to wages when discharged, 144 Misunderstanding as to wages to be paid, 90 Overtime, when statute fixes hours in a day, 210 Term of service and statute of frauds, 105 Contracts for service for one year or more should be in writing, 103-105, 201 Citizen on public works, 136, 144 Can have no secret interest in em- ployer's business, 85 Contract to divulge employer's busi- ness, 42, 85 Of state, liable for negligence, 254 Discharged (see also DISCHARGE:) : Measure of damages recoverable, 209 Wrongfully dismissed may recover reasonable value of services, 209 Discharged is bound to seek only like employment, 209 What he should do, 209 Employer must show that employee could have had other employment to reduce amount of recovery, 209 Must possess degree of care and skill alleged, 226-237 Recovery for extra skill and service, 225 Determination of skill, 230 Disrespectful conduct will justify dis- missal, 203 Need not put up with indignities, 203 Criminal act of, a just cause for dis- missal, 204 EMPLOYER (see also OWNER) : May be the true inventor, 223 EMPLOYMENT : Engineer or Architect : In regard to, 200-259 What is or is not, 212 What is proof of, 214 INDEX. 315 References are to sections. EMPLOYMENT Continued. Engineer or Architect Continued. Engagements for a salary and a part of profits of business not a partner- ship, 201 What is not an engagement, 213 As a professional man, 258 In a professional capacity, 211-214 Similar to that of other professional men, 226 Undertaking of, in a professional ca- pacity, 211 Often very indefinite, 211 In connection with competitive plans submitted, 212-214 Conditional on acceptance of plans, 212 In a judicial capacity, 244-249 Character of work changed, without consent of employee, 208 By unauthorized persons, 214 Beyond power conferred by charter upon company, 43 By two persons jointly, 214 May not delegate duties, 205 As an expert witness, 267-301 His right to designs and inventions, 219 Bight to inventions made, 223-225 What is a performance of contract of service, 213 Breach of contract of, 201-210 Recovery for services, 214 Recovery for services of assistants, 214 Who is liable for value of services, 214 No recovery for extra services volun- tarily rendered, 210 Term of service, 201 By the year, month, or day, 201 Period adopted for estimation of wages, 201 Contracts for service not to be per- formed within a year, 105, 201 Service by month and continuous for several years is one hiring, 201 Term of service indefinite, 201 Yearly contract, long-continued serv- ice, 201 Agreement to employ permanently, 201 Steady and permanent service, 201 For life or during ability to perform, 201 Term of service so long as works are kept running, 201 Dismissal or discharge, 202-210 (see also DISCHARGE). What will justify a discharge, 202- 210 Overburdened with work, and dis- missed for lack of control, 206 What amounts to a dismissal, 208 A demand for the resignation of, is a discharge, 208 Dismissal for incapacity, 206 EMPLOYMENT Continued. Engineer or Architect Continued. Incompetency or incapacity, 206 His liability for lack of care and skill, 226-243 Misrepresentation as to skill and ex- perience, 206 If careless and incompetent, he is liable to employer, 228-243 Illness and absence a cause for dis- charge, 205 Absence a cause for dismissal, 205 Gross moral misconduct, 204 Misconduct overlooked and condoned, 207 Waiver of right to dismiss, 207 Recovery of wages when wrongfully dismissed, 209 Damages recoverable for discharge, 209 Duty when discharged to seek other employment, 209 ENGAGEMENT (see also EMPLOYEE ; EMPLOYMENT) : Of engineer or architect, 200-259 Of professional man, implies capacity to do what is undertaken, 226-237 ENGINEER OR ARCHITECT (see also AGENT ; EMPLOYMENT ; EXPERT WITNESS): When an agent or servant, 234 Is not a confidential agent, 249A Is trusted agent of employer, 42 An agent, his knowledge attributed to owner, 249A May owe a double duty to his employer, as a referee and as a professional man, 249 Liability when a public officer, 250-259 Acts ratified or adopted, 34 As politicians and lobbyists, 301 Judicial status of, 246 Must not act fraudulently, 247 Liable to owner for fraud and collusion with contractor, 247, 248 Evidence of collusion, 149 Not liable to a suit by contractor for re- fusing his certificate, 246 Can have no secret interests in contract, 42 Must be competent, careful, and skillful, 226-243 Must have ordinary skill and care, 232 Must give careful superintendence, 239, 249 His undertaking when he solicits or ac- cepts an engagement, 231 For inspection and defective design, 237 For omissions and defects made by con- tractor, 239, 240 To employer for neglect or unrikillful- ness, 242 316 INDEX. References are to sections.* ENGINEER OR ARCHITECT Con. For injuries resulting from adoption of insufficient plans, 242 Cannot recover for services when he has been careless and unskillful, 238 To owner for failure to make investiga- tions, 238 For acts of assistants, 243 To his employer, but not to others, 248 To owner, with contractor or builder, 240 For cost of materials obtained through misrepresentations, 256 For many acts or omission when his functions are judicial, 244-246 When his duties are judicial or discre- tionary, 179, 244-249A For want of care and skill when actino- judicially, 246 Is under contract with owner to use care and skill, and his judicial status will not relieve him, 248 For misconduct of contractor, 240 To contractor for fraud, collusion, and bad faith, 247, 248 When codefendant with owner and charged with fraud, must reply to charges, 247 For contempt for disobeying court, 259A When under an injunction, 259A As a witness : On the witness stand, 249A Qualifications as an expert witness, 284-291 As experts, not needed to determine certain questions, 285 A witness with knowledge of facts, 288 As an expert defending hasty and im- prudent opinions, 268 Justice requires him to take witness- stand, as an expert at times, 274 No special privileges as a witness.. 249A Examples that are questions for expert testimony, 291 Should nqt volunteer information to bidders for public work, 155 Canvassing among bidders, 140 As an independent contractor, 243 Property in his creations, 217 Right to copyright of plans, 216-218 His property in plans and specifica- tions he has supplied, 215, 216-222 Claims to a copyright of his plans, 218 Employment of (see also EMPLOYMENT): His engagement or employment, 200- 259 As a professional man, 226-237 Means of collecting his pay, 260 Right to a lien for services, 261, 262 Entitled to a lien for superintendence, 262 His relations to his work and right to a lien, 262 ENGINEER OR ARCHITECT Con. His rights under stockholders' liability acts, 263 Injured while riding on a pass, 264 ENGINEER'S AUTHORITY : May not order extras without authority 241 To employ assistants on account of com- pany, 243 ENGINEER'S DUTY : To report conditions and things to his employer, 249A To guard against defects, 239, 240 In regard to personal inspection before rendering certificate, 249 Not to be determined by a jury, 249 Presumption that he has done it, 240 As an employee not excused because of his judicial status, 248, 249 ENGINEER'S FRAUD (see also FRAUD) : Evidence of fraud, 54 ENGINEER'S INTEREST : Can have no secret interest in contract, 85 ENGINEER'S KNOWLEDGE : Imputed to his employer, 249A ENGINEER'S LIABILITY (see also ENGINEER OR ARCHITECT) : For misconduct when period of limita- tions is passed, 121 ENGINEER'S SERVICES (see also EMPLOYMENT OF ENGINEER) : No recovery for, if employment be ultra vires, 43 ENRICHMENT : To prevent unjust enrichment, contract to pay is implied by law, 108 ENTIRE CONTRACTS, see also CON- TRACTS ; CONTRACTOR. ESTATES IN LAND : Contracts for the creation, assignment, and surrender of, are within statute of frauds, 109 ESTIMATE (see also ENGINEER'S ESTI- MATE) : A random guess, evidence of fraud, 149 EVADING SUMMONS: For the statutory period of limitations, 115 EVIDENCE, see also EXPERT WITNESS. EXAMPLES : Of expert testimony, 291 INDEX. 317 References are to sections. EXCLUSIVE RIGHTS OR FRAN- CHISES : Contracts by public officer must not grant, 81 EXECUTED CONTRACTS : Not within statute of frauds, 104 EXECUTION OF CONTRACT, see CONTRACTS. 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 Liability for torts of decedent, 12 EXHIBIT : Use of by experts in court, 292, 293 Of designs by author, loss of rights thereby, 216 EXPERIMENTS : Expert witness may employ, 292 EXPERT TESTIMONY: When will it be admitted, 284 Does not require other like testimony to meet it, 289 Weight and value, for the jury to de- termine, 289, 290 As to professional methods and standard authors, 291 Must be from recollection, not from memoranda, 277-280 Legislation needed to improve, 301 EXPERT WITNESS (see also WIT- NESS) : Defined and described, 291 Who may be an expert, 291 Engineer or architect, as, 267-301 Treatment of subject, 267 The consultation, 268-274 Esteem in which they are held by Bench and Bar, 270 Views of learned text-book writers re, 270 A champion of his client, 272 Bias and prejudice attributed to him, Accused of having a biased and warped 270 judgment, 270, 271, Little help to a court, 260 Expected to be impartial, 272 Is a hired advocate, 272 EXPERT WITNESS Continued. Candid opinion may be had, 273 His duty to seek to improve the situa- tion, 301 Behavior of, in court, 282, 284 May take time before answering, 268 Is justified in taking stand, 274 Cannot decide question at issue, directlv 290 Cannot determine questions which are for the jury to decide, 285, 286, 290 What questions he may be asked, 291 Should seek confidence of court, 282 Qualifications of, 283, 291 Competency of, determined by Trial court, 283 Privileges of, are determined by trial court, 282, 283 May be asked hypothetical questions, 287, 288 Required to answer categorically, 274 Conduct upon the stand, 294 May employ practical illustrations and experiments, 292 Use of memoranda and copies, 278 May use books, charts, or prepared mem- oranda to refresh memory, 277-280 Use of photographs, 279, 280 His right to use models and make tests rests with the trial court, 293 Use of books on stand, 276-278 May adopt statements of book as his own, 276-278 May be questioned re books, 276 When he may testify, 284-291 Need not have been a specialist in the subject-matter, 291 Must confine his testimony to subject in which he is skilled, 291 Must have regard for the understanding of his audience, 269 Position in trying to sustain untruths, 268 Not a delightful position, 273 Must undergo inquisition, 299 His knowledge, character, and experi- ence may be gone into, 299 His preparation for the stand, 275-281 Must inform himself, 275 Should take time to investigate, 268 To carefully inspect scene of contro- versy, 279 Must possess himself of all the facts, 279 Should make personal examination of subject-matter, 288 When he has knowledge of facts of case, 288, 297, 298 Should be prepared to explain his con- clusions, 281 Should be prepared to convince others, 275 Should fortify his opinions, 281 318 INDEX. References are to sections. EXPERT WITNESS Continued. Need not prove certain things, of which courts take notice, 292A Not required to determine many ques- tions, 285-291 His advice to fellow experts, 294 As counselor and adviser to attorney, IV, 295-298 Recovery for services as adviser to at- torney, 298 Recovery for services, 296 Right to extra pay for opinion, 296 His time and services should not be re- quired without compensation, 296 His opinion his property, 296 If no extra pay, then no extra prepara- tion, 390 In criminal and civil cases, 296, 297 Sometimes compelled to testify in crim- inal cases, 297, 298 If he knows facts, he must testify, 298 EXPRESS PROMISE : Starts statute of limitations anew, 118 EXPRESSIONS : Made clear by parol evidence, 122-126 Releases surety, 20 (see also SURETY). EXTRA SERVICES : Rendered by employee, no recovery without express agreement, 210 EXTRA WORK OR EXTRAS : Stipulations to avoid : Subsequent promises to pay for, must be for a consideration, 131 Promise to pay extra compensation for work included in contract, is not binding, 66 Instances : When appropriation is insufficient, 47 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 PACTS : Versus opinions in court, 284 Of which courts will take notice, 292A Known to expert witness, 288 FIDUCIARY (see also AGENT ; ENGI- NEER OR ARCHITECT) : Acts must not be inconsistent with duties, 84, 85 FIDUCIARY Continued. Can have no interests in conflict with those of his principal, 42 Can have no personal interest in con- tract, 85 Engineer to company, 42 FIRE HOSE : Contract for to lowest bidder, 161 Must be advertised, 161 FIREWORKS : Need not be advertised, 164 FIRMS ; As parties to contract, 5 FOREIGNERS : Employment of, on public work pro- hibited, 144 FORFEITURES : Certified check of bidder, 168 FORMS : Of Advertisement for proposals, 133- 135 Of contract, see also CONTRACT FORMS. Of notice : To bidders in regard to work, 145 Recommended tor proposal, 151 Of proposal for public work, 185 FOUNDATIONS : Imperfect, liability of engineer or archi- tect, 237 Failure to bore for and investigate, 238 FRANCHISES : Sale of must be for cash, 139 FRAUD (see also ENGINEER or ARCHI- TECT) : Parol evidence of, in written contract, 129 FRAUD AND COLLUSION: Of engineer or architect : What is good evidence of, 149 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, 264 So called, are given for some considera- tion, 265 Without a waiver of damages from neg- ligence, 266 Statute laws forbidding the use of, by public officers, 266 FURNISHED ON GROUND: Meaning of words, 271 INDEX. References are to sections. 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 GENERAL INSTRUCTION: For bidders for public works, 136 GENERAL MANAGER : Right to a lien for service, 261, 262 GOODS : Sale of, under statute of frauds, 98-102 To be manufactured : Sale of, under statute of frauds, 101 GOVERNMENT : Is exempt from operation of statute of limitations, 116 GUARANTY : Of perfection of plans, or of safety of structure, not implied, '229, 258 Exacted from lowest bidder, 157 HARDSHIPS (see also CONTRACTOR) : Of bidder to be preferred to a rule which would injure the public, 157 Will not relieve from statute of limita- tions, 115 HEIR: Is not the representative of a contractor, 8 HIRING (see also EMPLOYMENT, ETC.) : Of engineer or architect, 200-259 HOLIDAYS, see SUNDAYS. HOURS (see also DAY ; WAGES) : In a day's work fixed by statute, 136, 144 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, 286, 287, 288 Propriety of, determined by trial court, 283 Should embody all the facts 287, 288 Cannot be based upon facts not shown, 288 May be based upon disputed facts, 287, 288 Must be based upon facts deducible from evidence, 287, 288 IDIOCY, INFANCY, INSANITY: Disabilities to operation of statute of limitations, 114 IDIOT : Contracts of, are voidable, 25 ILLUSTRATIONS : Expert witness may make practical, 292 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 INCAPACITY : To contract, 23-28 INCOMPETENCY, see ENGINEER. INCORPOREAL PROPERTY (see also COPYRIGHT ; EMPLOYEE ; INVENTION): In architectural and engineering de- signs, 216-225 Protected only so long as author retains control of it, 216 Rights of purchaser in, 217 INDEBTEDNESS : Limit of, of a city, 45-46 INEBRIATES : Contracts of, 25 INFANTS (see also PARTIES): Capacity to contract, 24 Contracts are voidable, not void, 24 Necessaries, liability for, 24 As agent, may be one, 24 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, 259A Engineer must obey, and be respectful to court, 259A Situation of engineer, 259A Acting under advice of counsel, 259A When court has exceeded its powers, 259A INSPECTION: An excuse with contractor for defective work, 120 320 INDEX. "References are to sections. INSPECTION Continued. Should prevent material errors and omissions, 239, 240 Liability of engineer for, 237 Cannot be excused by showing presence of owner, 238 INSPECTOR (see also ENGINEER OR AR- CHITECT) : His knowledge is owner's, 249 A Held liable for non-performance of duty, 239 INSTANCES : Of questions not for experts, 285, 286 Of invention between employer and em- ployee, 225 Of engineer's failure to do his duty, 237- 240 Of care and skill required of engineers, 237 Of mandatnus and injunction, 259A INSTRUCTIONS AND CONDITIONS: For bidders : Should give full information, 139 Form for public works, 136, 145, 151, 165, 167, 170 INSTRUMENTS, WRITTEN (see also WRITTEN INSTRUMENTS) : INTENTION OF PARTIES : Will prevail when not contrary to pub- lic policy, 127 In publication of designs, 216 INTEREST OF ENGINEER : Public officer in contract may invalidate it, 42 INTEREST IN LAND : Contract for work on land, or for im- provement thereof, not within statute of frauds, 106 Contracts relating to use of lands, and statute of frauds, 106 Special agreements in regard to, 107 INTERPRETATION OF CONTRACT (see also CONTRACTS, MEANING AND INTENTION) : Evidence to assist in, 123-126 INTERPRETERS : Cannot be compelled to serve without compensation, 296 INTOXICATION : Contracts made while intoxicated, 25 INVENTION (see also PATENT): Defined and described, 224 Who is the inventor, 224, 225 What does it consist of, 224 Ownership of, 215-225 Instances of, by employee, 225 Rights of employee in his own, 219, 225 INVENTION Continued. By employee, use of employer's materials entitles him to use it, 225 Power to invent may be the subject of sale, 223 INVENTOR : Not always natural-born, 223 May sell his inventions before they are made, 219 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 JOINED : Plans and specifications to contract, 214- 220 JOINT PARTIES : Liability as employers, 214 JUDGES, see also COURTS. JUDGMENT : Must be exercised in good faith, 171, 173 JUDICIAL ACTS (see also MINISTERIAL): Distinguished from ministerial, 180 Of public officers must be exercised in good faith, 171, 173 Liability for improper performance of, 179, 244-259 JUDICIAL DUTIES : Liability for misconduct in the perform- ance of, 244-249 JUDICIAL NOTICE : Of well-known facts by court, 292A JUDICIAL OFFICERS : Distinguished from judges of courts, 245 246 Engineer and architect are, 246 JUDICIAL POWERS : Defined and explained, 244 Of engineer and architect, 246 JURISDICTION : Of courts over parties to contract, 58 JURY : Visiting scene of controversy, 292, 293 If they can fully comprehend case, ex- pert evidence not admissible, 284, 290 Determines weight of expert testimony, 289 Experts cannot decide matters which are for them to decide, 286, 290 Expert must consider understanding of, 269 INDEX. 321 References are to sections. KNOWLEDGE : Of an order of the court, 259A Of members of council imputed to citv 249A If expert lias, he must testify, 298 Required of an expert, 291 Of engineer imputed to his employer 249A Of engineer's acts, a ratification thereof 249A LABOR LAWS AND LIMITATIONS: Must be complied with, 144 Constitutionality of, in some states, 144 Legality of many is doubtful, 144 LARCENY : Of plans by architect, 215 LAWS AND ORDINANCES: Of what place controls, 57, 58 Law of place where parties reside gov- erns, 58 Law of place where contract is to be per- formed controls, 58 Forbidding public officers from accepting or using passes, 266 LAWYERS : Poor opinion of experts, 270 Sometimes make mistakes, 271 LEGALITY : Representations as to, of a contract, 129 LEGISLATION : Needed to improve expert testimony, 301 LEGISLATURE : May ratify illegal contracts, 46, 141 May ratify contracts ultra vires a corpo- ration, 142 LETTER : Acceptance of offer by letter, 95 Proper mailing of, is evidence of receipt, 95 LEVELS, see LINES AND LEVELS. LEX LOCI: Law of what place governs, 58 What custom or usage controls, 57, 58 LIABILITY : Of engineer or architect : For lack of care and skill, 226-243 For not detecting defects and omis- sions, etc., 238-240 To owner for mistakes, 238-240 For acts of assistants, 243 As an agent, for misconduct, 234 Limited to employer, 242 In a professional capacity, 226-243, 258 As a public officer, 250-259 Of engineer and contractor jointly, 240 When his functions are judicial, 244- 249 For discretionary acts, 176-180 LIABILITY Continued. Of owner, in damages (see OWNER) :: For misconduct of engineer, 241 For underestimate of architect, 241 Of owner, -when a city : For acts of its officers in rejecting low- est bid, 178, 179 Of public officers (see also PUBLIC OFFICERS) : On contracts executed, 255 ' For rejecting lowest bid, 176-180 For acts of assistants, 253 Mistake of city engineer, 258 LIEN: Right of engineer or architect to, 261,, 262 None for preparing plans, 261, 262 Superintendents, general managers, and' cooks not entitled to, 261 LIEN LAWS . Objects to be attained, 262 Constitutionality of, attacked, 262 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 LOCATION : Of railroad lines or depots, for personal" profit, forbidden by public policy, 81 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, 176 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 INDEX. References are to sections. iOWEST BIDDER Continued. For Public Work Continued. When can he require the contract to be awarded to himself, 176 Power to determine who is responsible is discretionary, 172, 173, 245 " Responsible " has reference to other qualifications than pecuniary, 173 Record as a contractor and builder may be investigated, 173 Hecovery of profits, when contract was awarded to another, 179 Evidence that bid accepted was not the lowest, 174 Lower offer made after bids have been 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 bidder, 51 What work must be let to him, 161 What contracts must be advertised and 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 what is called for in advertisement, 155 M&y be required to take certain mate- rials at a valuation, 162 Right to make changes in his work re- served, 158 Should undertake extra work with caution, 157, 158 Bids reconsidered after having been rejected, 174, 175 Failure to accept bid in time stipu- lated, 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 -MANDAMUS (see also INJUNCTION) : To require that a contract for public work be awarded to lowest bidder, 176-178 Position of engineer under, 259A MANUFACTURER : Is liable to purchaser only, for defects, 242 MAPS: For use of expert witness, 276-280 MAPS AND CHARTS (see also PLANS) : Use of, by expert witness, 279, 292 Subject of copyright, 210-218 Copied from others, 222 Made from surveys and materials col- lected while in employ of another, 221 Made from surveys for the government, copyright of, 222 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 MATERIALS : Purchase or sale cf : Under statute of frauds, 98-102 To two different parties, 97 Patented for public work, 163, 164 Bid to furnish whwn ordered, 184 Collected while in the service of an- other and incident to it, 22 MATERIAL MEN : Promises to, by owner, to pay contrac- tor's debts must be in writing, 110, 111 MEANING OF CONTRACT (see also CONSTRUCTION ; INTENTION ; INTER- PRETATION) : Is for the court to determine, 126 Witness cannot testify in regard to, 126 MEMORANDA : Of dates, quantities, and calculations for use of expert witness, 277-280 Must have been made at time of occur- rence, 277-280 Lost, and copies used by witness, 278 Use of by witness, 277-280 MEMORANDUM OF SALE : What is a sufficient memorandum, 102 MINISTERIAL DUTIES (see also EN- GINEER ; JUDICIAL ; PUBLIC OFFI- CERS) : Distinguished from judicial, 244-249 Liability of public officers for neglect in performing, 180 MISCONDUCT : Of employee, that will justify a dis- charge, 202, 210 INDEX. 32$ Rference are to sections. 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, 235 Liability of public officers for, 256 Claims of, a consideration for promise for extra pay, 69 MISTAKES: Of engineer or architect : Are not frequent, 271 Not confined to industrial world, 271 Of parties : In terms of contract, 88-97 As to terms of contract must be rea- sonable, to excuse party from his contract obligation, 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 MISUNDERSTANDING (see also MIS- TAKE) : Of parties as to terms of contract, 88-90 MODELS : Brought into court, 292, 293 MONOPOLY : Contract must not create, 81 Articles, in bids for public work, the manufacture of which is a monopoly, 163, 164 Exclusive rights in public franchises not allowed, 81 MORAL OBLIGATION : A consideration of a contract, 64 MORE OR LESS : In a contract to furnish materials, 184 MUNICIPAL CORPORATION, see CJTY ; MUTUAL ASSENT (see also MISTAKE) : Must be evidenced by overt acts, 89 Must consist of physical as well as men- tal act, 89 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 In executed contracts, 90 MUTUAL PROMISES : Consideration one for the other, whem changes are made in written contract, 131 MUTUAL UNDERSTANDING : Essential to a binding contract, 88-91 NECESSARIES (see also INFANTE) : Contracts for, 23-26 NEEDLE, see MAGNETIC NEEDLE : NEGLIGENCE : (see also AGENTS ; ENGINEER) : Of parties to contract : Party asserting must prove it, 230 Of engineer or architect : On the part of agent, 234 Liability for injuries resulting to third persons, 242 As a professional man, 235 May prevent his recovery for services, 238 A cause for discharging employee, 205- Not to give notice of any fact affect- ing the performance of engineer's^ duty, 249 A Of a carrier's servants, waiver of dam- ages resulting, 266 NEW PROMISE : Interrupts running of statute of limita- tion, 118 NOTES (see also SIGNATURE) : Given to induce bidder not to bid om public work are invalid, 148 NORTH, see MAGNETIC NEEDLE. NOTICE (see also ADVERTISEMENT) * Form of notice, 145 Sometimes is notice to his employer*. 249A Letter properly mailed is presumed to> have been received, 95 What is a proper publication of a notice,, 135, 139 To be posted in conspicuous place, 135 When required, must be given, 135, 13^ Of things, to be given to employer by agent or engineer, 249A Of award of contract to bidder, 183 To bidders, as regards the notice, 135 Of an injunction, 250 A OATH AS TO TRUTH : Of statements in a proposal, 145, 150 Form of, in proposal, 185, art. 21 OBSCURE CONTRACTS : Explained by parol evidence, 123, 124 OFFER AND ACCEPTANCE (seealso> ACCEPTANCE OF OFFER, 94-97; REVO- CATION OF OFFER, 97) : Together make a binding contract, 92, 97 What is an offer, 93 An offer is a conditional promise, 93 324 INDEX. JReferences are to sections. OFFER AND ACCEPTANCE Con. Conditional offer, condition must be per- formed, 94 * f Will you or would you take ..." not an offer, 93 An offer may be revoked, 97 Offer of reward for service to be ren- dered, 94 Revocation of offer when consideration is partly performed, 94 Destroyed 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, 220 OFFICERS (see also AGENTS ; PUBLIC i OFFICERS) : Acts must not be against interests of their company, 84 Of company are not its servants, 263 OFFICIAL NEWSPAPER : Designation of, for advertisements, 135 OFFSET : Of owner against engineer's claims for unskillfulness, 238 OMISSIONS : Supplied by parol evidence, 123 OPENING OF BIDS: Bidders should be invited, 183 Not necessary to award contract at, 183 OPINIONS (see also EXPERT WITNESS) : Not generally admissible as evidence, 284 Of an expert, giving of, 268 Witness entitled to pay for, when ? 296 OPTION (see also REVOCATION OF OF- FER) : On materials for time specified, 97 ORAL AGREEMENTS (see also PAROL AGREEMENTS) : Independent oral agreements, 130 ORDERS (see also AGENTS ; ENGINEERS ; PUBLIC OFFICERS) : By couimitteemen and engineer, 39 Ratification of unauthorized, 34 OUTSIDE WORK (see also EXTRAS) : By employee, rights of employer, 220 OVERTIME : When hours in a day are fixed by statute, 210 OWNER'S LIABILITY : To pay claims against contractor, should be in writing, 110, 111 For damages suffered from architect's in- attention against sums due for serv- ices, 238 Cannot complain if he has knowingly employed an unskillful engineer, 228 OWNERSHIP OF PLANS, ETC., see INCORPOREAL PROPERTY, 216-225 PAROL AGREEMENTS : To be subsequently embodied in a writ- ten contract, 91, 97, 183 To rescind or change written agreement, 122-131 To pay the debts of another, 110, 111 To rescind specialty should have a con- sideration, 69, 131 May be consideration for written agree- ment and vice versa, 130 PAROL CHANGES : Of contract terms, 69, 121-131 Of written contract, evidence of, 130 PAROL EVIDENCE (see also EVI- DENCE) : Of written contract not admissible, 122 To identify, describe, or explain a con- tract, 123 To explain obscure and ambiguous con- tracts, 124 When it will be received to explain writ- ten contract, 123-126 Of fraud or duress in written contracts, 129 Not admissible to change written con- tract, 121-131 Of terms of written contract is not ex- cluded in suits between strangers thereto, 128 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 corporate bodies, 43- 47 Bankrupts, 27 Beneficiaries under contract, 17 Boards, 39 Committees and councils, 39 Contractor determined by his own act, 50 INDEX. 325 References are to sections. PARTIES Continued. To a contract Continued. 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 party, surety 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 ascertain authority of public agents at their peril, 255 Domicile of parties given in contract, 57 Precaution with regard to on part of contractor, 55 Misunderstanding of terms of contract, 00 Consideration must pass between, 68 PARTNERSHIP : Firm having common partner, 5 Agreements for, by bidders for public work, 148 PASSES (see also FREE PASS) : Stipulations endorsed releasing company from liability, 86, 264 PATENTS (see also INVENTION) : Secured by employer when employee is inventor, 223-225 Who is entitled as between employer and employee, 223-225 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 PAY (see also MONEY ; WAGES) : Wages at certain intervals required by law, 136, 144 PENALTIES : Forfeiture of certified check of bidder, 168 PERFORMANCE : Of service by engineer, 213 PERILOUS : 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 PERSONAL SERVICE : Fireworks, contract to make, 164 Light house, contract to build, 13, 164 PERSONAL SKILL, see ENGINEEB OB ARCHITECT. PHOTOGRAPHS : Some of the uses of, 280 As evidence, 280 Advantages of in a trial, 279, 280 To enlarge minute objects, 280 Deceptions contained in, 280 The subject of copyright, 218 Publication of without permission of the person, 218 PHYSICIAN : His contract of employment, 211-214 As an expert witness, 295-301 PICTURE : Rights of purchaser in, 217 PIRACY : Of books and charts, 222 FLANS AND SPECIFICATIONS (see also DRAWINGS ; SPECIFICATIONS ; PLANS) : A part of a bid, 188 Identified by parol evidence, 123 Ownership and control of, 215-225 Ownership of plans, etc., 215, 216-222 Possession of disputed, 215 Lost by common carrier, 215 Designs embodied are protected by law, 216 Copying or using without permission of author, 216-222 Copyright of by author, 216-218 Prepared and submitted in competition, recovery for, 212-214 No lien for labor in preparing, 261, 262 POOR WORK : Concealed by fraud, its effect on statute of limitations, 119, 121 326 INDEX. References are to sections. POSITION : Of a public officer, 250 POSSESSION : Of plans : During construction of works, 215 After completion of works, 215 PRACTICAL TESTS : By expert witness in court, 292, 293 PRECAUTIONS : To be taken by contractor in undertak- ing public work, 55, 138 PREFACE, see page iii PRELIMINARY ESTIMATES (see also ENGINEER'S ESTIMATE ; ESTI- MATE) : Should be made to enable bidders to bid, 53 PREPARATION : Of expert, none can be required without extra pay, 300 By expert witness, "for the witness stand, 279 PRESIDENT (see also PARTIES) : Party to a contract, 30, 32, 38 Can have no interest in company's con- tract, 43 PRESUMPTION : That engineer or architect has done his duty, 240 PRICE : Extraordinary in bids, 54, 149, 156 PRIOR CONVERSATIONS : ^ Merged in written contract, 122-126 PRIOR UNDERSTANDINGS : May not be shown to vary terms of writ- ten contract, 121-131 PRIVATE WORK : Lowest bid for work under, 186-189 Bidder's rights are such as he has stip- ulated for by express agreement, 187 PRIVILEGED COMMUNICATIONS: Between owner and architect, 249a PRIVILEGES OF EXPERT WIT- NESS : Determined by trial court, 283 PRIZE PLANS : For best plans submitted, custom re, 214 Recovery for work in preparing, 212- 214 Lost by express company, 215 PROCESSES : Patented, in bids for public work, 163, 164 PROFESSIONAL ENGAGEMENT : Of engineer or architect, 211-214 Requires of a person, what? 226-237 PROFESSIONAL MAN : Must exercise care and skill, 232 Must be competent and skillful and have due care, 226 Is responsible for want of ordinary skill, care and attention, 229 PROFESSIONAL SERVICES : When charter requires that all work be advertised, 164 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 prom- ise, 67 To pay extra compensation for work in- cluded in contract is without a consid- eration, 66 Must be contemporaneous with consid- eration, 67 Made prior to written contract, 121-131 PROOF OF CONTRACT, see STATUTE OF FRAUDS, 98-111 ; STATUTE OF LIM- ITATIONS, 112-121. PROPERTY RIGHTS : In plans and specifications, 215, 216-222 In designs and inventions, 215-225 PROPOSALS (see also BIDS AND BID- DERS) : Acceptance of, 170, 171, 182-184 Form of, for public work, 185 PUBLICATION OF DESIGN : What is and is not, 216 Destroys author's rights to exclusive use of it, 216 PUBLIC FUND : Diversion from purpose for which they were raised, 46 PUBLIC IMPROVEMENT : Parts of, must be advertised, 161 "What is, and within act requiring adver- tisment for bids, 138 PUBLIC OFFICER (see also AGENTS; ENGINEER OR ARCHITECT) : Power and liability of: Liability for assurances in English courts, 255 Liable for false representations, 256 Liability on contracts improperly exe- cuted, 31, 35 Not liable under void contracts, 35 Liability upon contracts executed in official capacity, 255 Should disclose the fact that he is an officer or agent, 255 INDEX. 327 References are to sections. PUBLIC OFFICER Continued. Power and liability of Continued. Signatures to notes, bonds, etc., 255 County and municipal compared, 251, 252 Fewer requirements than of a profes- sional man, 257, 258 Not liable for blunders, 36, 45 Liability of engineer as one, 250-259 Liability for acts of assistants, 253 Willfully exceeding powers are liable, 180 Who disobey an injunction must stand expense of contempt proceedings, 2 59 A Non- judicial held liable for negligence, 254 Ministerial acts of, 180 Employees of state held liable for negligence, 254 Acts must not be fraudulent, 176 Evidence of fraud or collusion in, 149 Power of to determine lowest responsi- ble Udder, 172 Power of to determine good and suf- ficient surety, 172 Awarding contract for public work to 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 vires 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, 244-259 May prescribe any reasonable formal- ity for bidders, 146 Act of awarding contracts is frequently discretionary, 171, 172, 173 Bound by discretion exercised, 138 In awarding contracts, must exercise good faitb, 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 pol- icy, 71-87 Defense of to contract obligations, 87 PUBLIC RIGHTS : Not lost by lapse of time, 116 PUBLIC WAY (see also HIGHWAY ; STREET) : Must not be obstructed, 76 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 or state, 162 Bids for cannot be withdrawn, 181 Not always required to be advertised and let to lowest bidder, 171 Precaution to be taken by contractor in bidding for public work, 55 Agreements between contractor* not to bid against each other for it, 82 PUBLISHING : Notices pursuant to law, 135 PURCHASER OF PLANS: Right to use and copy, 217 PURGING : Oneself of a contempt, 259A QUALIFICATIONS : Of an expert witness, 283, 291 Of bidder for public work, 147 QUESTIONS (see also EXPERT WIT- NESS) : Which do not require expert testimony, 285, 291 To be determined by court or jury can- not be asked witness, 285, 286, 290 RATIFICATION (see also CONTRACTS) : Of agent's, architect's, and engineer's acts, 34 Of invalid contracts by congress or legis- lature, 46 READVERTISE, 174, 175, see ADVER- TISEMENT. REASONABLE ; Requirements of bidders, 152 RECEIPTS AND PROCESSES : Right to between employer and employee, 219 328 INDEX. References are to sections. RECOVERY : Of employee : Of engineer or architect for services in preparing plans not used, 212 For extra work, 210 RECOVERY BY CONTRACTOR (see also CONTRACTOR) : For extra work: For extra services outside of contract, 210, 225 When contract must be let to lowest bidder, 157, 158 Under illegal or unauthorized contract : For work done under an illegal con- tract, 71-87, 138 None for public work under a void* contract, 138, 143 When contract has been awarded to one not lowest bidder, contrary to law, 143 Cannot recover for work and materials furnished under a contract not exe- cuted according to law, 52, 138 No recovery for work done not pursu- ant to charter or statute, 43, 138 Cannot recover when contract is for- bidden by statue 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 part performance : For benefits conferred and to prevent unjust enrichment, 108, 138 None for labor preparing bids unless by express agreement, 186-187 REFRESHING OF MEMORY : Of a witness on the stand, 277, 278 By witness depends upon trial court, 283 REGULATIONS : Necessity for, in contracts for public work, 137 REJECTION (see also BIDS) : Of bids or proposals : Right of public officers to reject any and all bids, 171, 174 May reject all bids, 171-175, 179 RENTING OF OFFICES : Need not be advertised, 164 REPAIRS : Liability of state employees in making, 254 Must be advertised, 161 REPRESENTATIVES : Of parties to contract, 7 REQUIREMENTS : Imposed by public officers are discretion- ary acts, 155 Of bidders, propriety of certain ones, 152 Of a professional man, 256-237 Of a public officer less exacting than of a professional man, 257, 258 RESCISSION OF CONTRACT : Of an executed contract, requires a con. sideration, 69 RESIDENCE OF PARTIES : Described in contract, 57 RESIGNATION OF EMPLOYEE : A demand for, is a discharge, 208 RESPONSIBLE : Significance of term when applied to lowest bidder, 173 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 REVOCATION : Of award : Of a contract, 183 ] Of offer : What will effect it, 97 Requires physical manifestation, 97 Before time for acceptance Las 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 RIGHTS (see also CONTRACTS) : Certain rights cannot be made subject of contract, 86 RIGHTS OF WAY : Contracts for and statute of frauds, 109 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 SEALED CONTRACTS: Changed by parol agreements, 69, 131 SEALS : Seal of principal or agent, 32 Failure of sealed instrument, simple con- tract sustains, 32 SEAMEN : Parties to contract, 27 Public officers, in public work, 148 INDEX. 329 References are to sections. SECRET PROCESSES : Employee prevented from using or dis- closing sucL, 219 SECRETARY : Power to contract, 30, 32, 38 SERVICE OF NOTICE : Of an order of the court on party en- joined, 259A SERVICES : Gratuitous, must be performed with care and skill, 226 Right to a lien for, 86 SIGNATURE : Of agent to contract, 30 Agent affixing title to signature, 30 SKILL (see also CARE ; EMPLOYEE) : Determination of skill possessed by en- gineer, 230 SPECIALIST (see also EXPERT WIT- NESS) : Skill and care required of, 236 SPECIALTY, see SEALS. SPECIFICATIONS AND PLANS (see also PLANS AND SPECIFICATIONS, 213- 252): 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 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 STATUTE LAWS (see also LAWS) : Re public works : Must be strictly observed, 143 That they shall be let to lowest bidder, 141 Includes what work, 161 Use of statute to escape a burdensome contract, 148A Prostituted to purposes not intended, 148A Prohibiting public officers from hav- ing any interest in contracts, 148 Forbidding the employment of alien labor, 136, 144 Relating to carving and dressing stone by citizens of the state, 136, 144 STATUTE LAWS Continued. Re public works Continued. Relating to hours of labor and rate of wages, 136, 144 Prohibiting importation of foreign labor, 136, 144 Forbidding " store - pay " to em- ployees, 144 STATUTE OF FRAUDS : Its application to construction work, 111 Executed contracts not within the stat- ute, 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, 201 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 STATUTE OF LIMITATIONS : Objects of, and reasons for, statute, 112 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 STENOGRAPHER'S NOTES : As evidence at former trial, 278 STIPULATIONS (see also CONTRACT STIPULATIONS) : That no damages shall be claimed for injuries while riding on a pass, 264 STOCKHOLDER : Engineer's or architect's rights under stockholders' liability acts, 263 STORE-PAY : Statute forbidding, to workmen, 144 STRAW BIDS: Certified checks to prevent, 168, 169 STREET CLEANING ; Contract for to lowest bidder, must be advertised, 161 330 INDEX. References are to sections. STRUCTURE (see also WORKS) : Contracts to erect structures, the use and maintenance of which are contrary to law or ordinance are void, 76, 87 SUBCONTRACTORS : Not liable to owner for negligent work, 17 SUBJECT MATTER (see also CONSID- ERATION ; CONTRACTS ; WORKS) : Must be lawful, 71-87 Compared with consideration, 71 Of controversy, bringing it into court, 292, 293 SUBLETTING, see also ASSIGNMENT. 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 Must be founded on a consideration, 131 SUCCESS : Not a test of skill or capacity, 229, 258 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 SUPERINTENDENCE : Should prevent material errors and omissions, 239, 240 Not excused by presence of owner, 238 Engineer or architect liable for neglect in, 238 SUPERINTENDENT (see also ENGI- NEER or ARCHITECT ; FOREMAN) : Right to a lien, 261, 262 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 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 SURVEY : As evidence in a trial, 270 Mistake in, by city engineer, 258 SURVEYOR'S STAKES : Liability for injury from falling over, 242 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 TELEGRAPH MESSAGE : Acceptance of offered by, 95 TERMS AND PHRASES : Explained by parol evidence, 122-126 TERM OF SERVICE (see also EM- PLOYMENT) : Permanent, 201 TESTIMONY, see also EXPERT TESTI- MONY. TIME: For offer to continue or remain open, 97 INDEX. 331 References are to sections. TIME OF COMPLETION (see also DAYS) : May be changed by parol agreement, 130 TORTS : Executor not liable for torts of person he represents, 12 TRADE SECRETS : Protection of to firm, 219 TREASURER : Power to contract, 30, 32, 38 TRIAL COURT: Determines what practical tests may be made, 293 TRUTH : Of statements in proposal, oath as to, 145, 150 ULTRA VIRES : Contracts by corporation, 142 UNAUTHORIZED ACTS: Of engineer, owner's liability for, 37, 39 Established by implication, ratification, or adoption, 34 UNBALANCED BID (see also BIDS AND BIDS AND BIDDERS) : UNDERSTANDING . Manner of coming to, 92 Of court, expert must consider, 269 UNDERTAKING : As regards the undertaking, 71-87 Of professional man, 220-237 Is a guarantee of ability to perform, 226- 237 UNRESTRICTED BID : To furnish materials, 184 VALIDITY OF CONTRACT : Determined by laws of what place, 58 VALUE : Of competitive plans lost by express com- pany, 215 VERBAL AGREEMENTS : To pay the debts of another, 110-111 VERBAL EXPLANATION : Cannot include items not mentioned in advertisement for proposal, 161 VOID AGREEMENTS, see also CON- TRACTS, INFANTS, IMBECILES, LUNA- TICS, MARRIED WOMEN, PUBLIC POL- ICY. WAGES (see also EMPLOYEE) : 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 WAGE S Con tinned. Payment of wages in store-pay forbid- den by statute, 144 Not agreed upon, 209 Mistake in regard to wages to be paid employee, 90 WAIVER : Of right to appeal to court, 86 Of right to discharge employee, 207 WANT OF CARE AND SKILL : Judicial officer not liable, 244-249 Of a professional man, 235 Liable to employer only, 242 WAR: Effect upon parties to a contract, 27 A disability under statute of limitations, 115 WARRANTY : 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, 229, 258 WEIGHT AND VALUE : Of expert testimony for the jury to de- termine, 289 WIFE, see HUSBAND AND WIFE. WITHDRAWAL OF BID : Before and after it is accepted, 181, 183 WITNESS (see also EXPERT WITNESS) : Cannot testify as to meaning of con- tract, 126, 285 Must know papers are correct in order to testify to them, 278 May have read to him evidence at a for- mer trial, 278 WORDS AND PHRASES : Meaning explained by parol evidence, 122-126 WORK (see also ACCEPTANCE ; ENGINEER OR ARCHITECT) ; Contract for, not within statute of frauds, 106 WRITINGS : Of an author, copyright in, to when an employee, 219 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 Cannot be changed by parol proof, 122- Modified by parol agreements, 130-131 SHORT-TITLE CATALOGUE OF THE PUBLICATIONS OF JOHN WILEY & SONS, NEW YORK, LONDON: CHAPMAN & HALL, LIMITED. ARRANGED UNDER SUBJECTS. Descriptive circulars sent on application. Books marked with an asterisk are sold at net prices only. All books are bound in cloth unless otherwise stated. AGRICULTURE. CATTLE FEEDING DAIRY PRACTICE DISEASES OF ANIMALS GARDENING, HORTICULTURE, ETC. Armsby's Manual of Cattle Feeding 12mo, $1 75 Budd and Hansen, American Horticulture Manual. .(In press.) Downiug's Fruit and Fruit Trees 8vo, 5 00 Groteufelt's The Principles of Modern Dairy Practice. (Woll.) 12mo, 2 00 Kemp's Landscape Gardening 12mo, 2 50 Maynard's Landscape Gardening 12mo, 1 50 Steel's Treatise on the Diseases of the Dog 8vo, 3 50 " Treatise on the Diseases of the Ox 8vo, 6 00 Stockbriilge's Rocks and Soils 8vo, 2 50 Woll's Handbook for Farmers and Dairymen 12mo, 1 50 ARCHITECTURE. BUILDING CARPENTRY STAIRS VENTILATION LAW, ETC. 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Svo, 4 00 " De Pontibus (a Pocket-book for Bridge Engineers). 16mo, morocco, 3 00 " Specifications for Steel Bridges 12mo, 1 25 Wood's Construction of Bridges and Roofs Svo, 2 00 Wright's Designing of Draw Spans. Parts I. and II.. Svo, each 2 50 " " " " " Complete 8vo, 350 4 CHEMISTRY BIOLOGY-PHARMACY SANITARY SCIENCE. QUALITATIVE QUANTITATIVE ORGANIC INORGANIC, ETC. Adriauce's Laboratory Calculations 12mo, $1 25 Allen's Tables for Iron Analysis 8vo, 3 00 Austen's Notes for Chemical Students 12mo, 1 50 Bolton's Student's Guide in Quantitative Analysis 8vo, 1 50 Boltwood's Elementary Electro Chemistry (In the press.} Classen's Analysis by Electrolysis. (HerrickandBoltwood.).8vo, 3 00 Conn's Indicators and Test-papers 12mo 2 00 Crafts's Qualitative Analysis. (Schaeffer.) 12rno, 1 50 Davenport's Statistical Methods with Special Reference to Bio- logical Variations 12mo, morocco, 1 25 Drechsel's Chemical Reactions. (Merrill.) 12mo, 1 25 Erdmann's Introduction to Chemical Preparations. 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(Macmillan.) 8vo, 2 50 Warren's Descriptive Geometry 2 vols., 8vo, 3 50 " Drafting Instruments 12mo, 125 ' ' Free-hand Drawing 12mo, 1 00 " Linear Perspective 12mo, 1 00 " Machine Construction 2 vols., 8vo, 7 50 " Plane Problems 12nio, 125 " Primary Geometry 12mo, 75 " Problems and Theorems 8vo, 2 50 " Projection Drawing 12mo, 1 50 Shades and Shadows ...8vo, 300 " Stereotomy Stone-cutting , 8vo, 250 Whelpley's Letter Engraving 12mo, 2 00 Wilson's Free-hand Perspective 8vo, 2 50 6 ELECTRICITY AND MAGNETISM. ILLUMINATION BATTERIES PHYSICS -RAILWAYS. Anthony and Brackett's Text- book of Physics. (Magic.) Small 8vo, $3 00 Anthony's Theory of Electrical Measurements .12mo, 1 00 Barker's Deep-sea Soundings 8vo, 2 00 Benjamin's Voltaic Cell 8vo, 3 00 History of Electricity. 8vo, 3 00 Classen's Analysis by Electrolysis. (Heriick and Bolt wood ) 8vo, 3 00 Crehore and Squier's Experiments with a New Polarizing Photo- Chronograph 8vo, 3 00 Dawson's Electric Railways and Tramways. 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(See also BRIDGES, p. 4; HYDRAULICS, p. 9; MATERIALS OP EN- GINEERING, p. 10 ; MECHANICS AND MACHINERY, p. 12 ; STEAM ENGINES AND BOILERS, p. 14.) Baker's Masonry Construction .,,,.,... 8vo, 5 00 " Surveying Instruments , 12mo, 300 Black's U. S. Public Works Oblong 4to, 5 00 Brooks's Street-railway Location 16m o, morocco, 1 50 Butts's Civil Engineers' Field Book 16mo, morocco, 2 50 Byrne's Highway Construction 8vo, 5 00 7 Byrne's Inspection of Materials and Workmanship. . . 1 61110, $3 00 Carpenter's Experimental Engineering 8vo, 6 00 Church's Mechanics of Engineering Solids and Fluids 8vo, 6 00 " Notes and Examples in Mechanics 8vo, 2 00 Crandall's Earthwork Tables 8vo, 1 50 " The Transition Curve 16mo, morocco, 1 50 * Dredge's Penn. 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Small 8vo, 1 50 Totten's Metrology 8vo, 2 50 Warren's Descriptive Geometry 2 vols., 8vo, 3 50 " Drafting Instruments 12mo, 125 Free-hand Drawing 12nio, 100 i: Linear Perspective 12mo, 100 " Primary Geometry 12mo, 75 " Plane Problems 12mo, 1 25 " Problems and Theorems 8vo, 2 50 " Projection Drawing 12mo, 1 50 Wood's Co-ordinate Geometry .8vo, 2 00 Trigonometry 12mo, 1 00 Woolf's Descriptive Geometry Large 8vo, 3 00 MECHANICS-MACHINERY. TEXT-BOOKS AND PRACTICAL WORKS. (See also ENGINEERING, p. 8.) Baldwin's Steam Heating for Buildings 12mo, 2 50 Barr's Kinematics of Machinery 8vo, 2 50 Benjamin's Wrinkles and Recipes 12mo, 2 00 Chordal's Letters to Mechanics 12mo, 2 00 Church's Mechanics of Engineering 8vo, 6 00 " Notes aud Examples in Mechanics 8vo, 2 00 Crehore's Mechanics of the Girder 8vo, 5 00 Cromwell's Belts and Pulleys .12mo, 1 50 Toothed Gearing 12mo, 150 Compton's First Lessons in Metal Working 12mo, 1 50 Coraptou and De Groodt's Speed Lathe 12mo, 1 50 Dana's Elementary Mechanics , 12mo, 1 50 Dingey's Machinery Pattern Making 12mo, 2 00 * Dredge's Trans. Exhibits Building, World Exposition. Large 4tp, half morocco, 5 00 Du Bois's Mechanics. Vol. I., Kinematics 8vo, 3 50 Vol. II., Statics 8vo, 400 Vol. III., Kinetics 8vo, 350 Fitzgerald's Boston Machinist 1 8mo, 1 00 Flather's Dynamometers 12mo, 2 00 Rope Driving 12mo, 200 Hall's Car Lubrication 12mo, 1 00 Holly's Saw Filing 18mo, 75 Johnson's Theoretical Mechanics. An Elementary Treatise. (In the press.) 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