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

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

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
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
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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...

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