Engineering and Architectural Jurisprudence: A Presentation of the Law of Construction for Engineers, Architects, Contractors, Builders, Public Officers, and Attorneys at Law

John Cassan Wait

J. Wiley & Sons, 1897 - Architects - 905 pages

Contents

• PART I: 1
• The Introduction to a Contract 4 Designation of the Parties: 3
• Parties to the Contract: 5
• Only Parties to Contract are Bound: 6
• Legal Representatives of the Parties: 7
• The Representatives after Death or Changes Effected by: 8
• Executor or Administrator Takes Benefits and Burdeus of Contract: 9
• Coutracts for Personal Skill of Contractor: 10
• Executor Named in Contract: 11
• Executors Liability on Contracts and for Torts of Party: 12
• Assignee of Contractor or Owner: 13
• What Contracts and Claims are Assignable: 14
• Contracts Awarded to Lowest Bidder may be Assigned: 15
• What Interest does an Assignee Take: 16
• Third Parties Strangers and Beneficiaries: 17
• Third PartySureties: 18
• Third Parties Sureties are Not Liable to Them: 19
• Surety Released by Unauthorized Changes in the Contract: 20
• Changes which will Not Release the Surety: 21
• Surety Discharged by Other Causes: 22
• Disabilities to which Persons are Subject: 23
• Infants: 24
• Imbeciles Inebriates and Lunatics: 25
• Married Women: 26
• Other Conditions Affecting a Persons Capacity to Contract: 27
• Either Party under Dures: 28
• AgencyParties Acting by or through their Agents: 29
• Principal should be Made the PartyIf Agent Assumes the Obligation He: 30
• Agents Authority must Come from His Principal: 37
• Charter and Statute Limitations: 43
• Subscribers to a Project: 49
• Provision that Work Sball be Carried On as Directed by the Eugineer: 51
• Precautions to be Taken by Coutractors with Regard to Parties and Their: 55
• As Regards Consideration: 61
• BECTION PAGE 72 There must Be a Lawful Subjectmatter The Promise must Be to Perform a Lawful Act: 65
• Contracts the Effect of Which Is to Influence Public Officers: 66
• The Consideration must Be Present: 67
• The Undertaking Must Not be Contrary to Federal or State Laws or in Dis regard of Police Regulations or City Ordinances: 68
• The Act must Not Be to Commit a Crime or a Misdemeanor or to lujure Others in the Enjoyment of Their Rights: 70
• The Undertaking must Not Have for its Object the Creation of a Monopoly: 71
• Contracts Not to Bid or Compete: 72
• Contracts that Promote Gambling: 73
• A Man Cannot by Contract Forfeit Certain Rights and Privileges the Protection of Wbich the Law Guarantees: 74
• Immoral Contracts: 77
• CHAPTER IV: 79
• There should Be No Misunderstanding: 80
• To Avoid a Contract Mistake or Misunderstanding must be Showu Conclusively: 82
• Manner of Coming to an UnderstandingOffer avd Acceptance Make a Con: 83
• What Is an Offer ?: 84
• What Constitutes an Acceptance?: 85
• Contracts Made by Mail or Telegraph: 86
• Acceptance must Be Unconditional and in the Same Terms as the Offer: 87
• What Effects a Revocation of an Offer: 88
• CHAPTER V: 91
• Statute of FraudsContracts for the Sale of Goods Materials and Merchan dise: 92
• What is a Sufficient Memorandum of a Sale: 93
• Contracts to be Performed within One Year: 94
• Contracts Executed or Completed by Contractor: 95
• Special Agreements Relating to Lands 108 Contract Implied by Law to Pay for Benefits Conferred when there has Been Enrichment: 98
• Contracts for the Creation Assigument and Surrender of Estates in Land 110 Promises to Answer for the Debts of Another: 99
• Application of the Law to Construction Work: 100
• Statute of Limitations 115 The Letter of the Law is Applied Strictly without Regard to Hardship or Mis fortune 112 Objects and Reasons for the Statu...: 102
• Statute Does Not Operate against the Government: 104
• Agreements to Waive the Protection of the Statute 118 New Promises May Interrupt the Running of Statute and Forfeit Its Protec tion: 105
• Injury Concealed by Fraud so that Right of Action was Not Known: 106
• Bad Work Concealed When under Inspection and Supervision of Engineer: 107
• Law of Contracts Proof of Terms of Collateral Contract Parol or Verbal Agreements PAGE 97 98 122 Parol Evidence Not Admissible to Vary or Con...: 108
• When Parol Evidence will be Received: 110
• Parol Evidence to Explain Obscure and Ambiguous Contracts: 112
• Parties may be Held to the Construction They have Themselves Adopted: 113
• Witnesses cannot Testify as to the Meaning of a Contract: 114
• LAW OF CONTRACTS: 115
• Independent Oral Agreements: 117
• Subsequent Promises Must be Founded upon a Consideration: 118
• PART II: 120
• The Form of Advertisement to be Adopted: 123
• As Regards the Advertisement or General Notice to Bidders: 124
• Instructions to BiddersWork is Undertaken by What Authority and under What Restrictions 115 115 117 118 120 122 123 121: 126
• SECTIONS PACA 142 The Legislature May Ratify Cootracts: 132
• Labor Laws and Limitations must be Complied With: 134
• Form of Notice and lustructions: 136
• The Requirements of the Act or Charter are Imperative: 138
• Instructions should Give All Necessary Information to Bidders: 139
• There must Be Competition in Compliance with the Statute or Charter: 140
• Public Officers cannot Legalize nor Ratify Void Contracts: 141
• 148a Possibility of the Law Beiug Used to Escape Onerous Contracts: 142
• What is Good Evidence of Fraud and Coilusion of Public Officers and Ser vants: 143
• Oath as to Truthfuluess of Statements: 144
• Propriety of Certain Requirements and Restrictions: 148
• There should be a Standard for Comparisou of Bids: 149
• The Bid should Contain neither More vor Less than is Called for by the Instruc Lions Plans and Specifications: 150
• Contracts Must be Strictly According to Terms of Advertisement Plans and: 152
• Right to Make Changes and Alterations Reserved: 156
• Works Whose Cost Exceeds a Certain Amount Within the Stutute Charter or Ordinance: 157
• What Work Comes Within the Statute: 158
• Slate or City to Furnish Certain Things at a Specified Price: 159
• Instances where Contracts have been Made for Things in which there Was a Monopoly: 160
• Conditions and Stipulations as to the Performance and Completion of the Work: 161
• Conditions and Stipulations as to Performance and Completion of the Work: 164
• Bond and Certified Check io Ivsure the Execution of the Contract and Surety for Failbful Performance and Completion of the Work: 167
• Proposal to be Accompanied by Consent of Sureties: 168
• Information to be Furnished and Conditions to be Imposed when Contract is Executed: 169
• Acceptance of Proposal and Execution of ContractRight to Reject Bids: 170
• Power to Determine Responsible Bidder is Discretionary: 171
• Discretion Must be Exercised in Good Faith: 172
• Bids Rejected but Reconsidered Without a New Advertisement: 173
• Whether Lowest Bidder can Compel an Award to Himself: 175
• Public Officer may be Enjoined from Illegally Awarding Contract: 176
• What Remedies a Bidder May Have: 177
• Liability of Public Officers for Acts Discretionary or Quasi JudicialMisdeeds in Awarding the Contract: 179
• Liabiliiy of Public Officers for Ministerial Acts: 180
• Bicis Cannot be Recalled: 181
• What Constitutes an Acceptance of the Proposal or an Award of the Contract: 182
• Bid to Furpish Materials: 185
• Form of Proposal for Public Work: 186
• CHAPTER VII: 192
• In Absence of Agreement or Pleilge Owner may Exercise his Own Preference: 193
• Implied Agreement to Rumuneraie Bidder for His Labor or to Award Con tract to Lowest Bidder: 194
• STRUCTION CONTRACT ITS PHRASEOLOGY TERMS CONDI: 196
• Auother form of Introduction: 197
• her or They Must be Physically Joined: 202
• Contract may Consist of Two or More Written Instruments: 203
• hances and Regulations Referred to in Contract: 208
• Reference to Maps in Deeds and Other Forms of Conveyancing: 209
• Does Owner or Contractor Warrant Sufficiency of Plans?: 218
• Liability of the State County or Municipal Corporations for the Adopt on: 224
• Provision that Work shall be Performed and Completed According to: 230
• SECTION PAGE: 236
• Provision for the Inspection and Rejection of Inferior Materials and Work: 242
• Provision that Contractor shall Not Assign or Sublet: 248
• Provision that Work shall be Carried On as Directed by Written Orders of: 252
• Recovery of Damages Stated may Depend Upou Whether It Is a Penalty: 258
• Provision that Contractor may Take Materials at a Valuation: 263
• Matiers to be considered iu Determining the Amount of Liquidated Damages: 264
• Delay Occasioned by the Fault of the Owner: 270
• If Works Are in a State of Good Repair after a Certain Time Owner will: 276
• Work to be Done to the Satisfaction and Approval of Engineer or Architect: 283
• Is the Agreement a Submission to Arbitration?: 290
• Engineer car Administer Justice with the Aid of the Courts: 296
• No Definite Line of Separation of Cases for and against Binding Effect: 303
• SECTION PAGE 376 Eogineer cannot Pledge His Employers Credit to Pay Subcontractors or Workmen: 311
• Ratification of Engineers Orders may be Imp ied from Acquiescence or Adop tion of Prior OrdersIuslauces: 312
• Eugineer capuot Change Contract and Specitications por Make New Terms: 313
• Engiveers Powers to Determine Quantities: 314
• Engineer must Act in Good Faith and Have Strict Regard for the Methods Prescribed in Contract: 315
• Engineers Power 10 Determine Quality Character and Classification: 317
• Eugineer cannot Make a New and Intermediate Classification: 318
• English and American Decisions Compared: 319
• Powers to Determine the Sufficiency and Skill with which Work is Per formed: 320
• Powers of Engineer or Architect may be Extended by Other Clauses so as to Permit Some Deviations from Plans and Specitications: 322
• Prior Proinise to Classify Work or Materials in a Certaiu Way Not Always Binding: 323
• Engineer to Determine the Value of Work and Materials: 324
• Engineer to Determine Questions in Regard to Additions Omissions and 393 Provision that Engineer shall Determine Every Question Arising Out of ...: 325
• Instances in which Engineers Decisions have been Held Not Biuding under a General ClauseExtra Work: 326
• Other Instances Not Covered by a Sweeping ClauseBreach by Either Party: 327
• 28: 329
• Many Cases Hold that Agreements for Changes and Alterations are Subject to Engineers Determination Same as for Work Under Contract: 330
• Engineers Power to Determine all Questions may Sometimes be Limited by Specializing: 332
• Engineer to Determine the Meaning and Iutention Expressed in the Specifica tion and Contract: 334
• Engineer should Not be Able to Enlarge_bis Own Powers: 335
• The Contract Creates the Powers of the Engineer or Architect: 336
• Can the Engineer Interpret the Coutract Wrongfully if He Interprets It Honestly?: 337
• Necessity and Propriety of Such Clauses: 338
• Objection that such a Clause Ousts Courts of Their Proper Jurisdiction Treated: 339
• May Make Payment or Any Right to an Action Conditioned on the Engineer Determining Any Differences Existing: 340
• Two Classes of Cases the Distinction bei weep them Well Marked and Defined: 341
• Payment by Owner Made Contingent on Engineers Certificate: 343
• Indebteduess should be Created by Promise Only and Not by Performance of Work: 344
• Courts Unwilling to Construe the Stipulation a Condition Precedent: 345
• Make the Engineers Certificate a Condition Precedent to the Promise to Puy by Owner: 346
• The Condition Precedent may be Waived: 347
• Payment of Contract Price is Conditional on Procuring Engineers Certificate It will Hold: 349
• Language that Makes a Condition Precedent: 351
• 127: 353
• Right to Require Engineers Certificate may be Waived: 354
• RECOVERY BY CONTRACTOR WITHOUT PRODUCING ENGINEERS CERTIFICATE: 357
• 426a Difficulties Mei in an Action at Law: 364
• A Faulty Introduction: 369
• Mistake of Engineer in his Decision or Estimate an Element of Fraud: 370
• A Pure Mistake does not Render Award or Estimate Void but Subject: 376
• Performance of Condition Precedeut Prevented by Failure or Refusal: 383
• Iustances Showing when the Engineers Determinations bave been Upheld: 390
• Owner cannot Avoid Engineers Certificate by Pleading Work was: 399
• 458: 400
• CHAPTER XVI: 408
• SECTION PAGE: 418
• Earlier Cases Treated Engineer as an Arbitrator and Required a Hearing: 424
• Certain Duties cannot be Delegated except by Express Agreement: 430
• Determination of Skill Possessed or Want of Skill: 435
• The American and English Courts Agree as to Interest an Engineer can Have: 436
• Profits Made by an Engineer or Agent in the Conduct of His Employers Busi: 443
• Provision that Estimale and Decision of Engineer shali be Fival and: 447
• MATTERS OF DOUBT AND DISPUTE SUBMITTED TO ARBITRATION SECTION PAGE The Appointment of Arbitrators and an Umpire 519 Pr...: 448
• Certain Matters to be considered in a Subinission 10 Arbitratiou: 449
• What Questions may be Submitted to Arbitration: 450
• What Parties may Act as Arbitrators: 452
• Wbat Constitutes a Submission to Arbitration: 453
• A Submission to Arbitration should be Distinguished from an Appraisal: 454
• What Rules Govern the Arbitration: 455
• 28 Conduct of the Hearing: 456
• 29 Arbitrators must Determine Questions ThemselvesCannot Leave Them to Oihers: 457
• The Arbitrators must Act Together: 458
• Mailers Left to Two Arbitrators with Power to Cali iu an Umpire: 459
• The Award: 460
• CHAPTER XX: 462
• 37 Express Waiver of All Claims for Extra Work: 464
• Provision that Extra Work shall be ordered in Writing and the Price Deter mined: 465
• Provision that Contractor will Not Interfere with Other Contractors: 466
• Conditions Precedent to Liability must be Strictly Performed: 467
• An Unsigned Sketch or Plan is Not a Written Order: 468
• Want of Written Order may be Cured by Final Certificate if Certificate Par lakes of the Nature of an Award: 469
• English and American Practice Compared: 471
• Engineers Authority to Direct Alterations Additions or Omissions is: 472
• Authority to Order Extras except in the Manner Required by Contract 472 553 Without Special Authority the Engineer or Architect cannot Render H...: 473
• Who May Authorize Extra Work or Order Alterations on Behalf of the Parties: 475
• SECTION PAGE 556 Ordinances Resolutions and Appropriations cannot be Changed by Members of the Bodies Creating Them: 477
• Tlie Acts of Individual Members may be Ratified or Adopted by the Board: 478
• Engineers Authority to Order Extras may be Established by Implication Ratificatiou or Adoption: 479
• Liability for Extra Work may be Assumed by a New or Supplemental Agree ment: 482
• Simple Contracts and Those Under Seal may be Changed by Parol: 483
• The Agreement to Waive or Resciod should be Supported upou a Sufficient Consideration: 484
• The Owner City or Company may by Express Agreement on Its Part become Liable for Exira Work though Not Ordered in Writing: 486
• The Stipulation for a Written Order may be Wrived: 487
• Kuowledge of Owner that Contractor is Doiug Work as Extra Work a Strong Factor in Determining the Responsibility: 488
• If Amonnt of Work or Materials is Reduced by Changes: 490
• Effects of Alterations and Changes: 492
• Changes which Modify or Extinguish the Original Contract: 495
• Original Contract Rescinded or Reduced to a Parol Agreement: 496
• Alterations of Terms of Contract may Change Form of Action by Contractor: 497
• Effect of Change and Alterations ou Liability of Surety: 498
• Etfcct of Changes Ordered under al Clause Reserving ihe Right to Make Alter ations: 499
• Contractors Rights are Frequently Preserved by Notices on His Part: 503
• Contractor should Make His Claiin for Extras when the Addition or Alteration is Required: 504
• Contractor may be Held to the Terms Acquiesced In or Adopted: 505
• Owner may Waive his Rights by Remaining Silent and Not Objecting: 508
• Instances where Changes have been Made: 509
• Owners Liability for the Cost of Extra Work Caused by Circumstances Un foreseen and Uukuown: 511
• Alterations and Additions an Excuse for Delay in Completing Works: 513
• More Expensive Material Ordered and Furnished than the Contract Required: 514
• Provision that Estimates are Approximate Only and that Proprietors shall Not be Responsible for Inaccuracies: 516
• Preliminary Estimate of Work Incorrect: 517
• Extra Work Determined by Custom and Usnge: 518
• Provision that Engineer or Architect shall Have Power to Determine whether Work is or is Not Included in the Contract: 519
• Quantity Character and Value of Extra Work Left to Judgment of Engineer or Architect: 520
• Power 10 Decide Questions of Extra Work Does Not Imply Power to Deter mine Damages for Breach of Contract: 523
• Provisior that Questions and Doubts with Regard to Extras shall be Submit ted to Arbitration: 524
• Provision that Disputes as to Extra Work shall be Referred: 525
• CHAPTER XXI: 530
• Knowledge of Parties of Trade Usages and Customs: 536
• When Usage will be Admitted to Explain ContractsIt cannot Contradict: 542
• Instances in Brick work: 548
• Custom of What Place Controls: 556
• SECTION PAGE: 561
• Liability for the Unskillful Careless Negligent and Lawless Acts: 564
• A Man must Maintain His Property in a Reasonably Safe and Proper Manner: 568
• posed by Law Upon the Owner to Exercise Due Care and Foresight: 570
• City Company or Owner Cannot Escape Liability by Delegating Duties to: 574
• ics and that the Engineer may Dismiss Objectional Employees: 576
• The Relation of Independent Contractor is Not Determined by the Term: 581
• Clause should Give Control of Men and Manner of Doing Work: 582
• The Mode Method and Manver of Doing the Work niay be Prescribed in: 587
• ontrol or Direction if Any at All may be Reserved to the Owner: 588
• 129: 590
• Interpretation of Certain Contract Clauses: 594
• Destruction of Works Does Not Excuse Failure to Complete by a Specified: 605
• Work Destroyed which was to be Paid for as It Progressed: 611
• NONPERFORMANCE OF CONTRACT BREACH OR RESCISSION: 617
• Failure to Make Specific Payments when Due a Breach of Contract: 622
• 130: 628
• 131: 639
• What will Be a Subsiantial Performance: 643
• SECTI 142: 645
• 55: 647
• Specific Performance of Contract: 649
• Compensate the Losses Sustained: 650
• CHAPTER XXVI: 655
• on that Owner may Terminate Contract for Certain Causes: 656
• Agreements that Owner may Terminnte Contract are Valid and Binding: 661
• ments that Owner may Terminate Contract are Valid and Binding: 662
• What will Amount to a Breach of a Contract?: 681
• 143: 682
• CHAPTER XXVII: 693
• Provision that Contractor shall Furnish a Certificate of Register of Deeds that: 698
• Liens on Public Buildings: 704
• Provision that Progress Certificates shall Not Prejudice Right of Owner or City: 710
• Signed by One Party Only: 717
• be Liable: 722
• Dismissal or Discharge of an Employee: 724
• 25: 726
• Incompetence or Incapacity: 727
• Condonation of Employees Offense: 728
• Duty of Discharged Einployee to Seek Other Employment: 729
• No Recovery for Extra Work Unless so Agreed: 731
• un Employmeni of an Engineer or Archiiect ?This is Often a Difficult Question: 732
• What Is a Performance of a Contract of Service ?: 735
• Recovery for Services Rendered: 736
• CHAPTER XXIX: 739
• Incorporeal Property in Architectural and Evgineering DesignsCopyright and Patentright: 740
• Rights of a Purchaser to Incorporeal Creations: 743
• Rights of an Author Inventor or Designer when in the Emplos of Another: 744
• Things Made or Created Outside of Office Hours: 746
• Employees Right to His Inventions: 747
• What Is Invention and Who Is the Inventor ?: 748
• Instances of Invention between Eurployer and Employee: 750
• upon: 751
• That the Employee Possesses Skill is Implied from the Undertaking to Act: 752
• Professional Man must Possess Ordinary Skill and Exercise Ordinary Care: 754
• gence or Want of Care and Skill of a Professional: 755
• Engineer and Architect are Liable to their Employer and to Nobody Else: 762
• Power to Supervise Direct the Work and Order Changes and Deermine: 764
• FREE 6 5 5 5 5 I: 766
• Engineer is Liable to His Employer when He may Not be Liable to Con: 768
• Officers 44: 773
• County Officers and Their Liability: 774
• 145: 779
• CHAPTER XXXIII: 783
• gence: 792
• Use of Books by Expert Witness: 798
• Expert Witness should Fortify His Opinions with Authority and Undispute: 805
• Hypothetical Questions may be Asked of an Expert Witness: 811
• 813: 813
• Contractor should Not Perform Addisional or Extra Work by Direction of: 814
• 146: 817
• 147: 820
• Expert Witness in Civil and Criminal Cases Distinguished: 827
• Proof of Agency: 832
• 167: 837
• 770: 842
• Names of Parties in Body of Contract should Correspond with Signatures 33 Agents should be Duly Authorized to Contract: 843
• 779: 850
• Architects of Engineers Compensation: 860

Popular passages

Page 92 - That no contract for the sale of any goods, wares, and merchandise, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.

Page 396 - And it is hereby expressly agreed and understood by and between the parties hereto that the said parties of the first part, their successors and assigns, shall not, nor shall any department or officer of the city of New York, be precluded or estopped by any return or certificate made or given by any engineer, inspector...

Page 608 - The principle seems to us to be, that in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance.

Page 717 - Part further covenants and agrees to merchandise such wheat in foreign ports , it being understood and agreed between the Party of the First Part and the Party of the Second Part...

Page 191 - KNOW all Men by these Presents, That we, are held and firmly bound unto our...

Page 338 - Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by , and decision shall be final and conclusive...

Page 97 - ... or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto...

Page 581 - ... care of the person employed : but neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occasioned.

Page 187 - ... named has any interest in this proposal or in the contract proposed to be taken ; that...

Page 108 - When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing...

Bibliographic information

• Title: Engineering and Architectural Jurisprudence: A Presentation of the Law of Construction for Engineers, Architects, Contractors, Builders, Public Officers, and Attorneys at Law; Making of modern law
• Author: John Cassan Wait
• Publisher: J. Wiley & Sons, 1897
• Original from: the University of Michigan
• Digitized: Oct 3, 2007
• Length: 905 pages