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, 1898 - Architects - 905 pages
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Contents

Assignee of Contractor or Owner
8
What Contracts and Claims are Assignable
9
What Interest does an Assignee Take
10
Third Parties Strangers and Beneficiaries
11
Third PartySureties
12
Third Parties Simties are Not Liable to Them
13
Changes winch will Not Release the Surety
16
Surety Discharged by Other Causes
17
Disabilities to which Persons are Subject
18
Imbeciles Inebriates and Lunatics
19
Married Women
21
Other Conditions Affecting a Persons Capacity to Contract
22
Either Party under Duress
23
Principal should be Made the PartyIf Agent Assumes the Obligation He will be Liable
24
Proof of Agency
25
Names of Parties in Body of Contract should Correspond with Signatures
26
Agents should be Duly Authorized to Contract
27
Public Agents Not Liable for Blunders
28
Authority cannot be Inferred from Business or Family Relations
29
Boards Committees and Councils in Tlieir Representative Capacity
30
Public Officers are Presumed to Do Their Duty
31
Means of Obtaining Information
32
An Agent or Fiduciary can Have No Interest in the Contract
33
Charter and Statute Limitations
34
Oilier Restrictions to which Corporate Bodies are SubjectCost must Be within the Appropriation or Limit of Indebted ness
36
Appropriation must Not be Exceeded
37
The Legislature or Congress may Ratify the Contract
38
Cases where Appropriation has been Exceeded
39
Unincorporated Organizations as Parties
40
Second Party Not Named but Determined by His Own Act
42
51 Charter and Statute Requirements must be Strictly Carried Out
43
No Recovery can be Had for Work and Materials Furnished for Public Work Contrary to Law
44
Irregularities Need Not be Caused by Contractor
46
Precautions to be Taken by Contractors with Regard to Parties and Their Powers
48
Time when Contract was Made or Entered IntoDay or Date
51
CHAPTER II
54
Consideration In Case of Subscriptions
55
3 Adequacy of Consideration
56
The Consideration Must Not be Wanting
57
The Consideration must Be Present
59
From Whom Consideration must Come
61
Changes or New Terms In a Contract
62
Consideration Good in Part
63
CHAPTER III
65
The Undertaking must Not Have for its Object the Creation of a Monopoly
71
Immoral Contracts
77
What Is an Offer?
84
CHAPTER V
91
SECTION PAGE 106 Contracts for an Interest in Lauds
97
Special Agreements Relating to Lauds
98
Contracts for the Creation Assignment and Surrender of Estates in Land
99
Application of the Law to Construction Work
100
Statute of Limitation 112 Objects and Reasons for the Statute
102
Disabilities that May Prevent the Operation of the StatutePersonal Dis abilities
103
The Letter of the Law is Applied Strictly without Regard to Hardship or Mis fortune
104
Agreements to Waive the Protection of the Statute
105
Injury Concealed by Fraud so tht Right of Action was Not Kuowu
106
Bad Work Concealed When under Inspection and Supervision of Eugineer
107
Parol Evidence Not Admissible to Vary or Contradict a Written Contract
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
The Intention of Parties should Control
115
Independent Oral Agreements
117
Subsequent Promises Must be Founded upon a Consideration
118
PART II
120
The Advertisement or Notice to BiddersInvitation to Contractors and Build ers to Make Proposals
122
The Form of Advertisement to be Adopted 183
123
As Regards the Advertisement or General Notice to Bidders 184
124
Instructions to BiddersWork is Undertaken by What Authority and under What Restrictions
126
Necessity for Restrictions and Regulations
127
Instructions should Give All Necessary Information to Bidders
129
There must Be Competition in Compliance with the Statute or Charter 180
130
Public Officers cannot Legalize nor Ratify Void Contracts
131
The Legislature May Ratify Contracts
132
Labor Laws and Limitations must be Complied With
134
Form of Notice aud Instructions 186
138
Restrictions which Exclude Certain Persons from Bidding 189
139
148a Possibility of the Law Being Used to Escape Onerous Contracts
142
What is Good Evidence of Fraud aud Collusion of Public Officers and Ser vants
143
Oath as to Truthfulness of Statements
144
Propriety of Certain Requirements aud Restrictions
148
There should be a Standard for Comparison of Bids
149
The Bid should Contain neither More nor Less than is Called for by the Instruc tions Plans aud Specifications
150
Contracts Must be Strictly According to Terms of Advertisement Plans and Specifications by which Bids were Invited
152
Right to Make Changes aud Alterations Reserved
156
Works Whose Cost Exceeds a Certain Amount Within the Statute Charter or Ordinance
157
What Work Comes Within the Statute
158
State 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 to Insure the Execution of the Contract and Surety for Faithful 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
Powei 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 cixn 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 ID Awarding the Contract
179
Liability of Public Officers for Ministerial Acts
180
Bids Cannot be Recalled
181
What Constitutes an Acceptance of the Proposal or an Award of the Contract
182
Bid to Furnish Materials
185
Form of Proposal for Public Work
186
CHAPTER VII
192
In Absence of Agreement or Pledge Owner may Exercise his Own Preference
193
Implied Agreement to Remunerate Bidder for His Labor or to Award Con tract to Lowest Bidder
194
Another form of Introduction
197
Contract may Consist of Two or More Written Instruments
203
Reference to Maps in Deeds and Other Forms of Conveyancing
209
SECTION PAOK 231 Provision that Written Matter shall Prevail Over Printed Parts
213
Punctuation
214
Responsibility for Unauthorized Changes by Engineer or Architect between Owner and Contractor
215
Provision that Contractor shall Guarantee Sufficiency of Plans and Specifica tions
216
Insufficient Plans and SpecificationsLiability of Either Party to the Other Party
217
Does Owner or Contractor Warrant Sufficiency of Plans?
218
Failure of Structure after Completion Due to Insufficient Plans
219
Contracts foi Completed Structures Distinguished from Agreements for Woik and Materials
220
Contractor will be Held to His Guaranty of Sufficiency of Plans and Specifi cations
221
Contract to do Work According to Plans and Specifications Implies an Under standing of Them
222
Insufficiency of PlansLiability to Third Parties Iujured
223
Liability of the State County or Municipal Corporations for the Adoption of Insufficient Plans and Specifications
224
Selection of Plans for Public Works Sometimes Held a Judicial Act
225
Liability of City Town Couuty or State for want of Care or Skill of Public Officer
226
Property Rights in Plans as between Engineers or Architect and Owner 22T 254 Provision that Work Shall be Done in a Woikmaulike Manner
227
An Agreement to Perform Work in a Workmanlike Manner must be Faith fully Executed or uo Recovery can be Had
228
Provision that Work shall be Performed and Completed According to the True Spirit Meaning and Intent of the Plans and Specifications
230
CHAPTER X
232
i Provision that Contractor may Take Materials at a Valuation
233
Ownership of Materials in Public Way
234
Title to Materials and Plant Delivered upon the Works
236
on the Works who shall Receive and Obey Instructions of Engineer
247
Provision that Work Shall be Carried On as Directed by the Engineer
252
Recovery of Damages Stated may Depend Upon Whether It Is n Penalty
258
Matters 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
Grounds upon which the Stipulations are Attacked 27
279
Act of Third Party as Engineer or Architect may be Made a Condition Pre
285
Before the Award is Made Agreements to Submit to Arbitration are
291
Parties are Bound after Award is Mude
297
Engineer should Hiive No Secret Interest 801
303
Power to Supervise Direct the Work and Order Chances and Determine
310
CBCTIOt PACK 376 Engineer cannot Pledge His Employers Credit to Pay Subcontractors or Workmen
311
Ratification of Engineers Orders may be Implied from Acquiescence or Adop tion of Prior OrdersInstances
312
Engineer canuot Change Contract and Specifications nor Make New Terms 818
314
Engineer must Act in Good Faith and Have Strict Regard for the Methods Prescribed in Contract
315
Engineers Power to Determine Quality Character and Classification
317
Engineer 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 Specifications
322
Prior Promise to Classify Work or Materials in a Certain Way Not Always Binding
323
Engineer to Determine the Value of Work and Materials
324
Provision that Engineer shall Determine Every Question Arising Out of or Pertaining to the Work or Contract
325
Instances in which Engineers Decisions have been Held Not Binding under a General ClauseExtra Work
326
Other Instances Not Covered ly B Sweeping ClauseBreach by Either Party
327
Engineers Powers when the Contract has been Rescinded or Performed 828
329
Many Cases Hold that Agreements foi Changes and Alterations are Subject to Engineers Determination Same as for Work Under Contract 830
330
400 Engineers Power to Determine all Questions may Sometimes be Limited by Specializing 882
332
Engineer to Determine the Meaning and Intention Expressed in the Specifica tion and Contract
334
Engineer should Not be Able to Enlarge his Own Powers 888
335
The Contract Creates the Powers of the Engineer or Architect
336
Can the Engineer Interpret the Contract Wrongfully if He Interprets It Honestly?
337
English Scotch and American Views
338
Objection that Such a Clause Ousts Courts of Their Proper Jurisdiction Treated
339
May Make Payment or Any Rigbt to an Action Conditioned on the Engineer Determining Any Differences Existing
340
Two Classes of Cases the Distinction between them Well Marked and Defined
341
Payment by Owner Made Contingent on Engineers Certificate
343
Indebtedness should be Created by Promise Only and Not by Performance of Work
344
Courts Unwilling to Construe the Stipulation a Condition Precedent 845
345
Make the Engineers Certificate a Condition Precedent to the Promise to Pay by Owner 846
346
The Condition Precedent may be Waived
347
If Payment of Contract Price is Conditional on Procuring Engineers Certificate It will Hold
349
Language that Makes a Condition Precedent
351
A Condition Precedent Must be Expressed It will Not be Implied 853
353
Right to Require Engineers Certificate may be Waived
354
Under what Circumstances may Contractor Recover without Procuring Engi
358
Fraud and Collusion must be Alleged nnd Proven 864
366
Mistake of Engineer in his Decision or Estimate un Element of Fraud 870
372
Decision of Engineer when He lias Made a Mistake of Law 878
380
Inspection and Estimate Rendered Impossible by Act of Owner or Company
386
CHAPTER XV
392
Provision tliat Engineers Certificate Estimate and Decision may be Made Without Notice to the Contractor
422
Right to a Hearing may be Waived by the Parties
423
Earlier Cases Treated Engineer as an Arbitrator and Required a Hearing 42i
424
In Many Cases an Enuincei und Aibilrntor are Distinguished 4
426
CHAPTER XVII
428
Certain Acts may be Delegated
429
503 Certain Duties cannot be Delegated except by Express Agreement
430
The Engineer must Dp Whatever the Contract Expressly Requires of Him
431
Contract Clause Permitting Delegation of Engineers Duties Omitted
432
Engineer Not Properly Designated
433
Delegation of Duties by Engineer as a Public Officer
434
CHAPTER XVIII
435
The American and English Courts Agree as to Interest an Engineer can Have in His Company
436
Moral Obligation of Engineer Forbids any Secret Interest
438
Provision that Contract may be Rescinded if the Engineer o Any Officer of the City or Company is Interested in the Contract
439
615 Profits Made by an Engineer or Agent iu the Conduct of His Employers Busi ness Belong to the Employer
443
Conspiracy or Collusion Between Contractor and Engineer
444
Engineer should Be a Disinterested Person and the Agent of Neither Party
445
Company or Owner may Employ an Engineer Known to be Interested in the Contract
446
CHAPTER XIX
448
Certain Matters to be considered in a Submission to Arbitration 44
449
il What Questions may be Submitted to Arbitration
450
What Parties may Act as Arbitrators
452
What Constitutes a Submission to Arbitration
453
A Submission to Arbitratiou should be Distinguished from an Appraisal
454
What Rules Govern the Arbitration
455
Conduct of the Hearing
456
Arbitrators must Determine Questions ThemselvesCuunot Leave Them to Others
457
The Arbitrator must Act Together
458
Matters Left to Two Aibitrators with Powei to Call in an Umpire
459
The Award
460
CHAPTER XX
462
Provision Limiting tlie Recovery of the Contractor to the Contract Price
464
Provision that Extra Work shall be Ordered in Writing and the Price Deter mined
465
Provision that Contractor will Not Interfere with Oilier Contractors
466
Conditions Precedent to Liability must be Strictly Performed
467
An Unsigned Sketch or Plan is Not a Written Order 408
468
Want of Written Order may be Cured by Final Certificate if Certificate Par takes of the Nature of an Award
469
English and American Practice Compared
471
Engineers Authority to Direct Alterations Additions or Omissions is Not Authority to Order Extras except in the Manner Required by Contract
472
Without Special Authority the Engineer or Architect cannot Render His Em ployer Liable for Extra Work
473
WhoMay Authorize Extra Work or Order Alterations on Behalf of the Parties
475
Ordinances Resolutions and Appropriations cannot be Changed by Members of the Bodies Creating Them
477
The Acts of Individual Members may be Ratified or Adopted by the Board
478
Engineers Authority to Order Extras may be Established by Implication Ratification 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 Rescind should be Supported upon a Sufficient Consideration
484
The Owner City or Company may by Express Agreement on Its Part become Liable for Extra Work though Not Ordered in Writing
486
The Stipulation for a Written Order may be Waived
487
that Contractor is Doing Work as Extra Work a Strong Factor in Determining the Responsibility
488
If Amount of Work or Materials is Reduced by Changes
490
Effects of Alterations and Changes 49
492
Changes which Modify or Extinguish the Original Contract 49
495
Original Contract Rescinded or Reduced to a Parol Agreement 49t
496
Alterations of Terms of Contract may Change Form of Action by Contractor
497
Effect of Change and Alterations on Liability of Surety
498
Effect of Changes Ordered under u Clause Reserving the Right to Make Alter ations
499
Contractors Rights are Frequently Preserved by Notices on His Part
503
Contractor should Make His Claim foi 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 iiucl Not Objecting
508
Instances where Changes have been Made
509
Owners Liability for the Cost of Extra Work Caused by Circumstances Un foreseen and Unknown
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 Estimale of Work Incorrect
517
Extra Work Determined by Custom and Usage
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 to Decide Questions of Extra Work Does Not Imply Power to Deter mine Damages for Breach of Contract
523
Provision 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
Limits of Work Not Properly Denned 63ft
526
Estimates of Quantities of Work and Materials
528
CHAPTER XXI
530
Peculiar Effect of Custom and Usage 581
531
What may Constitute a Usage 582
532
Usage must be Certain aud Uniform
534
Parties to Contract should Have Knowledge of Usage
535
Knowledge ot Parties of Trade Usages and Customs 68ft 613 A Usage must be Moral 588
538
A Practice that Subverts Justice and Is Contrary to Good Morals Is Not a Usage
540
When Usage will be Admitted to Explain ContractsIt cannot Contradict Express Terms of Contract
542
Usage can be Employed to Explain an Ambiguous Contract
545
Instances in Brickwork 64ft
546
Instances in Stonework
548
Instances in Plastering
550
Instances in EarthworksExcavations aud Embankments
551
Ownership of MaterialsEffect of Usage
552
Some General Examples of Usage
553
Custom of What Place Controls 55ft
556
Certain Words and Phrases Defined 657
557
Stipulation Fixing Liability Relation of Owner to an Independent Contractor and to Hi Servant Defined 630 Provision that all Laws Ordinances etc s...
559
Provision that Contractor shall Give and Serve All Notices 56O 633 Provision that Contractor shall Secure All Permits Licenses and shall Pay All Fees...
560
Provision that Contractors shall Indemnify Owners for All Claims Costs and Expense
561
Owner cannot Escape Liability for Certain Acts by Making Contractor Assume
562
Provision that Engineer shall have Supervision and Direction of Work
575
The Mode Method and Manner of Doiug the Work may be Prescribed in
588
Impossibility of Performance Caused by Act of Owner
600
Destruction of Property when Alterations Improvements or Repairs are being
607
Excavations More Difficult than was Supposed when Contract was Taken
614
A Suspension of the Woik will Not Justify Contractor in Abandoning Con
620
Neglect oi Refusal of Owner to Provide Materials Labor Lines Levels
626
Recovery of Prospective Profits
632
6D8 Contractor must have Made au Honest Effort to Complete his Contract or
637
What will Be a Substantial Performance
643
Specific Performance of Contract
649
CHAPTER XXVI
655
Agreements that Owner may Terminate Contract are Valid and Binding
661
SKTIOX PAOB
666
To Retain Liquidated Damages the Discretion to Terminate Contract must
673
Terminating Contract should Be an Act of Last Resort
679
Provision that Engineer shall Determine whnt is Due Contractor for Work
685
American and English Decisions Compared
691
Claims of Laborers and Materialmen Disputed by Contractor 6J?
698
76? Contractors Covenant Against Liens does not Bui Materialuien and Laborers from Filing Liens 69ft
699
Contractor to Execute a Release ol All Claims or Demands before Final Pay meat
701
Mechanics Lien Laws of Different States
702
Liens on Public Buildings
704
Burdens Created upon Property by Unauthorized Agents 70i 769 Provision for Progress Certificates and Partial Payments
705
Provision for Failure to Make Monthly Payments
706
Engineers Certificate should be Made a Coudiliou Precedent to Owners Lia bility
707
Special Provisions as to Payments
708
Provision tliat Ownei will Pay on Performance of Conditions and Rendering of Engineers Certificate
709
Provision that Progress Certificates shall Not Prejudice Right of Owner or City to Require full Performance of Contract
710
Provision Fixing Compensation at a Price per Unit of Measure
711
Provision that All Money Due to Owner may be Recovered by Action or may be Retained out of Moneys Due to Contractor
712
Provision that Notices may be Sent to Contractor s Place of Business
714
Sigued by One Party Only
717
informal Contracts which are to be Reduced to Writing at some Future Time
718
Execution ot Contract Signed Sealer Witnessed and Delivered
719
Why is Contract in Writing ?Why Signed Sealed and Witnessed 1
720
ENGINEERS AND ARCHITECTS EMPLOYMENT CHAPTER XXVIII
722
Dismissal or Discbarge of an Employee
724
Gross Moral Misconduct Pecuniary or Otherwise
725
Habitual Negligence oi Conduct Calculated to Injure Masters Business 72ft 806 Incompetence or Incapacity
727
Condonation of Employee s Offense
728
Duty of Discharged Employee to Seek Other Employment 729
729
No Recovery for Extra Work Unless so Agreed
731
What Constitutes an Employment of an Engineer or Architect ?This is Often a Difficult Question
732
What Is a Performance of a Contract of Service 1
735
Recovery for Services Rendered 73ft
736
CHAPTER XXIX
739
Incorporeal Property in Architectural and Engineering DesignsCopyright and Patentright
740
Rights of a Purchaser to Incorporeal Creations
743
Rights of an Author Inventor or Designer when in the Employ of Another
744
Things Made or Created Outside of Office Hours 74ft 821 Creations Made from Materials Collected while in Anothers Service
746
Employees Right to His Inventions
747
What Is Invention and Who Is the Inventor 1
748
CHAPTER XXX
751
That the Employee Possesses Skill is Implied from the Undertaking to Act
752
Architect or Engineer must Give Such Careful Superintendence and Inspec
758
CHAPTER XXXI
764
849a Engineers or Architects Knowledge Is the Employers Knowledge
771
Officer or Employee Is Responsible for His False Representations
777
CHAPTER XXXIII
783
SECTION PAOK 863 Engineers or Architects Rights under the Stockholders Liability Acts
788
Compensation for Injuries Received while Riding on a Free Pass
789
865 Pusses are Usually Given for Some Consideration
790
CHAPTER XXXIV
792
Expert must have Regard for the Undertanding and Knowledge of His Audience
793
Esteem in which Experts are Held by Bench and Bar
794
Biased and Warped Judgments are Not Confined to Professois of Science
795
Experts Are Champions of Their Clients as Well as Attorneys
796
It is the Duty of Every Citizen to Promote Justice
797
The PreparationExpert Witness should Not Only be Informed but He must be Prepared to Convince Others
798
Witness may Use a Book Chart or Prepared Memoranda to Refresh His Memory
800
Use of Written Memoranda and Copies Thereof
802
Use of Maps Plans Photographs and Models in Court
803
Expert Witness should Fortify His Opinions with Authority and Undisputed Facts
805
Trial Court Determines the Privileges of an Expert Witness
806
Behavior of Expert Witness in CourtWhen will Expert Testimony be Ad mitted
807
Some Questions Held Not to Require Experts to Determine
808
Expert cannot Determine Questions which the Jury are to Decide
810
Hypothetical Questions may be Asked of an Expert Witness
811
Witness Acquainted with Facts of Case
812
Weight and Value of an Experts Testimony is Determined by Jury
813
Expert Witness must Not Try to Determine Questions which Determination Is for the Court or Jury
814
Qualifications of an ExpertWho may Be an Expert Witness
815
Witness may Employ Practical Illustrations and Experiments
820
892a Judicial Notice
822
Right to Use Models and Make Tests Rests with Trial Court
823
An Experts Advice to FellowExperts
824
Experts as Assistants in Examination of Witnesses by Attorneys
825
Expert Witness In Civil and Criminal Cases Distinguished
827
Experts Knowledge Experience and Character may be Inquired Into
828
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