jobs, and not to one exclusively, while the written parts are special statements and provisions inserted with special reference to the subject-matter of the contract under discussion. The written parts are the immediate language and terms of the parties themselves, while the printed words are a general formula adapted to similar occasions and jobs, and to other parties.'

To have the written part of a contract control the printed part it must be inconsistent or opposed to it. The fact that the provision for payments on a building on architects' certificates is contained in the printed part of the contract, and that the written part provides that the payments shall be made at fixed stages in the progress of the work, and at definite times after its completion, does not render the printed provision inoperative, since there is no inconsistency between it and the written part of the contract.* A special written addition to a printed form used in a contract is entitled to special weight in construing the contract, as it is presumed to have been separately and particularly considered by the parties, and to express their exact agreement on the subject of it.'

It is a question, therefore, if such a clause making the written parts of a contract prevail over the printed parts is not only unnecessary, but on the whole undesirable, as limiting the authority of the engineer to interpret the specifications, plans, and contract in conformity with and in a manner consistent with good work.

233. Punctuation.-Punctuation has little weight in determining the meaning of a contract. The want of punctuation marks will not be allowed to vitiate a contract, or destroy its meaning, any more than bad grammar or bad spelling. The court may supply them if necessary to make the whole instrument rational and self-consistent.*

234. Unauthorized Changes and Alterations in Plans and Specifications and Liability Therefor-Liability of Person Making the Changes.—Several interesting questions come up when changes or alterations have been made in the plans, specifications, or contract after they have been signed, and without the consent or knowledge of both parties. What changes amount to forgery, and whether changes by the architect or engineer can be attributed to the owner or company, and what is the effect of such material changes upon the contract itself and the rights and obligations of the parties, are some of the questions that present themselves.

Inducements to make such changes unfortunately exist at times, but the cases that have found their way into court are rare indeed. Mistakes made in drawing the plans or in making computations of dimensions and quantities, or the omission of necessary parts or details by the architect or engi

111 Amer. & Eng. Ency. Law 516, and cases cited.

Michaelis v. Wolf (Ill.), 26 N. E. Rep. 384 [1891].

3 Dick v. Ireland, 130 Pa. St. 299 [1889]. 411 Amer. & Eng. Ency Law 521, 522; Hawes v. Sternheim, 57 Ill. App. 126.

neer or designer or his assistants are incentives for the author of the blunder to conceal or correct his mistakes in as artful and complete a manner as possible. One person may seek to shift his own mistakes on to the head and shoulders of others, and it is easy to understand why persons who are most likely to make such mistakes might be the very ones who would not have the moral courage to own them and take the consequences.

Such changes in a contract or in plans and specifications that were a part of a contract would no doubt amount to forgery, and subject the perpetrator to an action for damages or an indictment for deceit or even forgery under The statutory laws of a state must determine what is necessary to make it a forgery, but without doubt the elements of forgery as generally defined would exist in such a case.

the laws of some states.

235. Responsibility for Unauthorized Changes by Engineer or Architect, between Owner and Contractor.-Ordinarily, when alterations in an instrument have been made by a third party or an agent or officer in whose custody it has been placed without express or implied authority, it will not avoid the contract, note, or bond, as the case may be.' A giving of the custody of an instrument, as a note, to another has been held not an implied authority to make alterations therein." The same should hold of an act of an architect or engineer in making changes in the plans or specifications of work. Without some show of authority or knowledge, the owner or company should not be held responsible for such acts. It has been held that changes made in the plans and specifications after the contract was signed, and without the knowledge of either party, did not vitiate the contract.'

An English case seems inclined to a contrary view, and the sentiment is expressed that if the changes were for the benefit of the owner or company, he is as responsible for the alteration of the contract as if he had made it himself, in so far as the destruction of the contract itself or the contract obligations are concerned.'

When a contractor has undertaken to erect buildings on the owner's land under written conditions, which after being signed were kept on the owner's behalf by the architect, and one of the conditions made the architect's certificate a condition precedent to the right to payment, and the contractor had been paid for all the works for which the architect had certified and upon a quantum meruit in respect of works for which no certificate had been given, and it appeared that an erasure had been made in a material part of the contract, and the jury having found that the erasure had been made by the architect after the contract had been signed, the contractor contended that the contract was void and that he might sue on a quantum meruit; but he was non-suited, and the court held that notwithstanding the

'Amer. & Eng. Ency. Law 505, and cases cited.

2

Coburn v. Webb, 56 Ind. 96; Lemay v. Williams, 32 Ark. 166.

Consaul v. Sheldon, 35 Neb. 247 [1892]. 4 Pattinson v. Luckley, L R. 10 Exch. 330 [1875].

erasure the conditions were either still the government document, or at least must be looked at to see what were the real terms of the contract, and that the contractor could not recover on a quantum meruit.'

The question was not what the owner could do against the contractor nor what the owner's rights were. It may be that if the contractor had done none of the work, and the owner had sought to enforce the contract after having spoiled the document, he would have been unable to have enforced the contract; or had the contractor done the work badly, the owner could not have recovered damages in an action for bad building. But the question here was on what terms is the contractor to be paid? He is entitled to be paid on the terms actually agreed on. If he fails to show any agreement he is not entitled to be paid at all. In case of goods sold and delivered it is easy to show a contract from the retention of the goods, but that is not so where work is done upon real property. If the contractor shows the contract, he must show all its terms. The instrument under which the work was done, though altered in a material part, is still the governing document to determine the rights of the contractor. Therefore he is bound by the conditions which made the architect's certificate a condition precedent to recovery, and cannot recover, having been paid the full amount of such certificate. The act of the owner does not destroy the rights of the contractor; the general rule prevents the person who has made the alteration from setting up the contract for his own benefit. A quantum meruit would require the court to infer another contract, shutting out what it knew had occurred, and what was the real essence of the contract.'

A statute might determine the effect of such a material alteration in a contract. The alteration made was the erasing of a clause to the effect that extra work should not be required to be ordered in writing.

It has been held that the addition of a map or plan to the record or copy of a deed, for the purpose of making the claim of the grantee more specific, does not render the grant inoperative if there was no fraudulent intent or purpose to make it appear as part of the original deed.'

236. Provision that Contractor shall Guarantee Sufficiency of Plans and Specifications.

Clause: "The contractor[s] hereby further declare[s] and agree[s] that he [they] shall be responsible for the full performance and completion of this contract, and that by the execution hereof he [they] admit[s] that he [they] has [have] carefully studied and compared the said plans, elevations, sections, and the specifications and particulars before referred to, and admits, vouches, guarantees, or believes that they are sufficient for their intended purposes, and that they can be carried out and executed in full without any additional or extra work other than the

1 Pattinson v. Luckley, L. R. 10 Exch. 330 [1875].

2 Powell v. Davett, 15 East 29.

3 Winni isiogee Paper Co. v. New Hamp shire Land Co. (C. C.), 59 Fed. Rep. 542.

work set forth herein, or necessarily inferred to be done from the general nature and tendency of the plans and descriptions aforesaid." 237. Insufficient Plans and Specifications. Liability of Either Party to the Other Party.-In construction work cases frequently arise where the completion of the work according to the plans and specifications adopted. becomes impracticable or even impossible, or where the structure fails or falls in consequence of the imperfect design or the lack of skill in adopting proper methods of construction. Such cases must be distinguished from failures due to the use of inferior materials or to the workmanship of the contractor or his mechanics. The failures referred to in this section are due to defects in the plans and specifications adopted, and result from lack of skill or want of attention on the part of the engineer or architect. As such failures are usually attended with delay and additional expense, the question as to who is responsible for the sufficiency and accuracy of the plans and specifications is an important one.

If the contractor has undertaken to guaranty the sufficiency of the plans and methods adopted for the erection and completion of a work, there is no doubt of his liability under such a guaranty; but as such a guaranty is not usually exacied of the contractor, the cases in the books are for the most part those arising under contracts, from which the clause given above has been omitted. A review of those cases will show the propriety of adopting such a clause on work involving new materials, new methods, and new processes.

If the failure is due to defective work or defective materials furnished by the contractor, if he has failed to do what he has agreed, or has furnished unskilled workmen or weak or worthless materials, or has put them together in an unworkmanlike manner, if he has neglected to drive the bolt home, or to protect his work against floods and storms, the loss will be the contractor's own loss, and this will be so even though the company have had inspectors upon the work and it has been under the direction and supervision of their engineer, who through incompetency and dishonesty has estimated and allowed it each month.* If the contractor has been negligent or unskillful in the performance of his work, he cannot take shelter behind the plea that the plan is defective and that the structure would not have stood if it had been rightly done.' Insufficiency of plans will not excuse a contractor from doing his work in a proper manner nor from furnishing good, sound, and appropriate materials,' nor from completing his contract.

Drhew v. Altoona, 121 Pa. St. 414; School Trustees v. Bennett, 3 Dutch 515; see also Charlock v. Freel, 50 Hun 395 [1888].

Accord, Trustees v. Bradfield, 30 Geo. 1; girder failed because it was poor material; semble, Spence v. Bd. of Com'rs, 117 Ind.

* See also Secs. 674–680, infra.

573 [1888]; Waul v. Hardie, 17 Tex. 553; Hillyard v. Crabtree, 11 Tex. 268.

Loundsberry v. Eastwick, 3 Phila. 371

[1859].

4 Hooper Webb, 27 Minn. 485; but see Lambert o. Fuller, 88 Ill. 260.

+ See Sec. 238, infra.

238. Does Owner or Contractor Warrant Sufficiency of Plans?-An English case decided in 1874-6 is frequently cited as authority for the statement that the company does not warrant, and therefore is not responsible for, the sufficiency of plans adopted by it, but that the contractor must satisfy himself of their practicability before he enters into his contract. The facts of this case, briefly stated, are as follows: The City of London being about to erect a bridge had its engineer prepare plans and specifications descriptive of the bridge and the manner of erecting it. Part of the plan adopted consisted of the use of caissons in the place of coffer-dams, which caissons on account of the strong currents in the river proved impracticable and had to be abandoned, so that the work done in attempting to use them was wholly lost, and the foundations had to be built in a different manner, causing great delay and extra expense. On the faith of the accuracy and sufficiency of the plans adopted by the city for the purposes intended, and without any independent inquiry on his part to ascertain whether or not the work could be done in the manner specified, the contractor made proposals and entered into a contract for the execution and completion of the work [bridge] according to the plans and specifications. The city had issued an advertisement, inviting bids for the work according to the specifications and plans, and had referred to the engineer for further particulars, and by the terms of the agreement the contractor was required to obey the direction of the engineer. After the contractor had completed the works he sued the city to recover for the extra expense and loss of time incurred in completing the works according to the alterations rendered necessary by the insufficiency of the plans and specifications, not on a quantum meruit, but on the ground of an implied warranty by the city that the work could be executed in the manner described in the original plans and specifications. It was held, and affirmed on appeal in 1876, that the contractor could not sustain an action for damages upon such a warranty; that the contract did not contain any express warranty to the effect that the plans and specifications were correct and practicable, and that none could be implied from the act of the city in advertising for bids and accepting the proposal, even if there was a want of skill and care on the part of the city engineer. The lord chancellor in delivering the opinion argued that the contractor was as able to judge of the practicability of the plans as was the city or its engineer, and that he should have had them tested by his own engineer. The appellate court held that if the contractor had any remedy under the circumstances it was upon a quantum meruit. The lower court expressed an opinion that the contractor should have thrown up the contract when he found that the work was impracticable; that having gone on with the work under the altered conditions and without any new agreement he was estopped at that late day from makng a claim for extra compensation.❜

Thorn Mayor of London, 1 App. Cas. 20 [1876]; Hooper v. Webb. 27 Minn. 485.

2 Thorn . Mayor of London, L. R. 9 Ex. 163 [1874].