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891 691

v. Bauman (80 Ill. 493 [1875]).

324, 325, 689 .85, 515, 849a Wilmot v. Smith (3 C. & P. 453).. 566, 680 Wilson v. Baltimore (Md.) (34 Atl. Rep. 774). 168, 169 616, 687, 690, 691, 813 v. Brennan (80 Ill. 493). v. Brett (11 M. & W. 113) 827, 828 v. Furness Ry. Co. (L. R. 9 Eq 25).... 706 v. Hind (Cal) (45 Pac. Rep. 695).. 762 v. Kings Co. El. R. Co. (21 N. E. Rep. 1015 [1889]).....

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v. Storms (6 Cold. [Tenn.] 203).


v. United States (26 Ct. of Cl. 132)... 739 v. Vanderbilt (28 N. Y. 217)... 678 Williamson v. Brandenburg (Ind.) (32 N. E. Rep. 1022).. 892a

v. Wadsworth (49 Barb. 294 [1867]), 863 Willits v. C. B. & K. C. R. Co. (Iowa) (55 N. W. Rep. 313)...

Willis e. Melville (19 La. Ann. 13 [1867])..
Wills v. Webster (Sup.) (37 N. Y. Supp. 354),

v Abbey (27 Tex. 202).

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Woodbury v. Worthy 3 Me. 85 [1824])..484, 485, 491 Woodrow v. Hawving (Ala.) (16 So. Rep. 720).. 835 Woodruff v. Hough (Ct.) (91 U. S. 590 [1875])... 445 v. Imp. F. Ins. C». (8 N. Y. 133)... v. Rochester & P. R. Co. (108 N. Y. 39 [1888])....871, 372, 373, 379. 491, 545, 553, 555, 558, 841, 849a Woodward v. Jewell (25 Fed Rep. 689 [18-5]) 216 v. Fuller (80 N. Y. 312).....700, 701, 702 Woodworth v. Bennett (43 N. Y. 278) Wood v. Abbott (5 Blatchf. U. S. 325)..

..147, 148


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v. Peto (6 Moore 47).

v. School Dist. (32 N. H. 188).

v. Knott (3 Humph. [Tenn.] 473).. 676, 677 v. New Bedford (108 Mass. 261-266).... 643 v. Northampton Ry. Co. (L. R. 9 Ch. App. 279).

v. Roots (Ill.) (10 N. E. Rep. 204 [1887]).

v. Webber (Sup.) (36 N. Y. Supp. 550), 17, 20 v. White (71 Ga. 506)..

v. Vt. Cent. R. Co. (24 Vt. 608 [1852]).

706 275, 640a

796, 797 621,623, 629 Wood Mach. Co. v. Smith (Mich.) (15 N. W. Rep. 906)..

177)... v. Silcock (32 W. R. 845 [1884], 50 L. T. 251)



324, 709


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v. York & Md. Line R. Co. (Md.) (11 Gill & J. 38, 58 [1839]. 9 Peters 327) ...428, 433, 439, 495, 503, 504 Windhorst v. Deeley (2 C. B. 253) Windmuller v. Pope (N. Y.) (14 N. E. Rep. 436

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World's Fair Hotel v. Courtright (57 Ill. App. 281)....



Winn v. Bull (L. R. 7 Ch. D. 29 [1877])...97, 183, 188
Wirnepiseogee Lake Co. v. Young (40 N. H.

Winnepiseogee Paper Co. v. New Hampshire
Land Co. (C. C.) (59 Fed. Rep. 542)
Winona v. Minn. R. Constr'n Co. (27 Minn. 415) 701
Winter, In re (8 Ch. D. 225)..

Worsley v. Wood (6 T. R. 710)..


Worthington v. Boston (Mass.) (41 Fed. Rep. 23



...161, 163, 164



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Winter v. Baker (50 Barb. 432 [1867]) Winterbottom v. Wright (10 M. & W. 109-111),


Wray v. Evans (80 Pa. St. 102 [1875]). Wren v. Indianapolis (96 Ill. 206).



Winters v. Fleece (14 Lea [Tenn.] 546)..
Wisconsin Oconto Water Co. v. Nat. Found &
Pipe Wks. (C. C. A.) (59 Fed. Rep. 19).......
Wisconsin Red Brick Co. v. Hood (Minn.) (69
N. W. Rep. 1091)...
.256, 277, 468

277, 656, 842 720

Wright v. Comrs. (6 Mont. 29)..


v. Meyers (Tex.) (25 S. W. Rep. 1122 [1894])... 321, 326, 441, 468. 505


v. Petrie (1 Smed. & M. Ch. (Miss.)



Wise v. Wilson (1 C. & K. 662).


Wiseman v. Thompson (Iowa) (63 N. W. Rep. 346).....

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Witmark v. Manhattan Ry. Co. (N. Y. App.) (41 N. E Rep. 78)


Wittenberg v. Friederichs (Sup.) (40 N. Y. S. 895) 652 Witz v. Tregallas (Md.) (833 Atl. Rep. 718), 432, 436, 473, 478 Wohlreich v. Fettretch (21 N. Y. St. Reptr. 56 [1889])... .698, 700, 701 703

Wolf v. Gerr (43 Iowa 339).

v. The Des Moines & Ft. D. Rv. Co. (64) Iowa 380).....316, 317. 318, 380, 553, 849a v. Michaelis (27 Ill. App. 336 [1888]),

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v. Terry (Fla.) (2 So. Rep. 6 [1887]). 17 v. The People (112 Ill. 540 [1884]).. 898 v. Wright (1 Litt. 179 [18:22]).......... Wyatt v. Harrison (3 B. & Ad. 871)..

v. Marq. Hertford (63 East 147). Wyckoff v. Meyers (44 N. Y. 143 [1870]),

388, 428, 439, 445, 473, 474 v. Taylor (Sup.) (43 N. Y. Supp. 31), 699, 738 Wyley Canal Co. v. Bradley (7 East 368).... ...... 643 Y. Yale v. Curtiss (N. Y. Ct. of App., Feb. 1897).. 125 Yarbrough v. State (Ala.) (16 So. Rep. 758). 875 Yarnold v. Lawrence (15 Kans. 126)........138, 163 272 Yater v. Mullen (24 Ind. 277). Yates v. Ballentine (56 Mo. 530 [1874])..397, 701, 703

572, 575


v. Lynchburg & D. R. Co. (N. C.) (14 S. E. Rep. 683 [1892])..





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886 Yeaw v. Williams (R. I.) (23 Atl. Rep. 33 [1892]) Yeisley v. Bundel (Pa.) (15 Atl. Rep. 854 [1888]). 567 Yeomans v. Parker (Mich.) (63 N. W. Rep. 316). 731 Yoeman v. Mueller (83 Mo. App. 343 [1889]).... 66 Young v. Clapp (Ill. Sup.) (35 N. E. Rep. 32). 95 Young Lock Nut. Co. v. Brownley Manufg. Co. .351, 747 (N. J. Ch.) (34 Atl. Rep. 947).... Young v. Mayor of Leomington [1883])..

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[N. Y. Super. Ct.]

49, 31 N.


Supp. 845.....

..392, 428, 429



Supp. 548


702, 728, 781


Zottman v. San Francisco (20 Cal. 96


Yutzy v. Buffalo Valley R. R. (1 Walker 463)... 490

43, 53, 555

v. Preston (4 Cranch 239)

Youngstown Bridge Co. v. Barnes (Tenn.) (39 S. W. Rep. 714)...

Jourgensen (14 N. Y.

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1. Introduction.-Engineering and architectual construction is rarely undertaken by the owners or proprietors of the structure. Works of magnitude 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 employé or of an independent contractor, and whichever rôle is assumed, they are relations and obligations growing out of an agreement or understanding called a contract. All work of importance is the subject of a contract, 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 contain four essential elements, viz.: 1. Two parties with capacity to contract. 2. A lawful consideration: a something in exchange for its legal equivalent,

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 understanding, and a meeting of the minds of the parties.' These elements of a simple contract are of the foundation of the English common law, and no agreement, so called, is a binding contract unless it embodies each and all of these essentials. Without them our courts decline to recognize the binding. effect of the agreement and the parties are free to fulfil their obligations or not at their pleasure."

The order in which these elements are given was adopted because it seems the safest and most rational treatment of the subject of contracts A contract requires that there shall be, first, two competent parties; secondly, a lawful consideration; thirdly, a lawful subject-matter; and lastly, a meeting of the minds of the parties with regard to the parties, the subject-matter, and the consideration. If these essentials were considered in the order given, there would be fewer cases of hardships and less litigation over contract rights. The mischief frequently results from the parties mutually consenting to be bound and exchanging the considerations before the questions of competency of the parties and the legality of the act undertaken have been considered. The order adopted is that usually followed in written contracts. 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:


"THIS AGREEMENT, made and entered into [concluded] this of......
in the year and be-


...etc., etc.,"

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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 of....

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is a good and popular clause. These are mere forms, and their selection a mere matter of taste with the draftsmen.

if the contract be a written instrument it must be delivered. Leonard v. Kebler's Adm'r (Ohio Sup.), 34 N. E. Rep. 659.

A finding that a written contract was

void is equivalent to finding that there was no written contract at all. Rebman v. San Gabriel Val. Land & Water Co. (Cal.), 30 Pac. Rep. 564.

* See Sec. 200, Chap. VIII, infra.

4. Designation of the Parties.--" by and between.

(name of owner, company, board, city, university,


or cther corporation).. . .
of the City of [Town of].... ....., County
State of.... , party of the first part, and..
(name of contractor or company) 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-matter 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)."


5. Parties to the Contract.-There must be two parties to every contract, the one who is bound to perform the contract and the other who is entitled to have it performed.' A person cannot contract with him

A contract may be made to ray some unknown party to be ascertained a some future time upon a contingent event. Notes payable to bearer, or to an indorser, may be mentioned as such contracts,

though by the law of merchants' bills and notes are placed upon a footing peculiar to themselves. An advertisement offering a reward is an offer only, and is not a contract until accepted by the person who per

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