of which he could hold them against an execution against the builder, and that would disentitle the sheriff from seizing them.'

If the contract provide that a mill erected upon property shall be and remain the sole property of the contractor until certain liens or encumbrances are removed by the owner, the builder can remove the mill when the land has been sold under an execution of judgment of such lien or encumbrance.'

273. English and American Decisions Compared.-By the English bill of sale act, an agreement in an ordinary building contract that all building materials brought by the builder upon the land of the owner shall become his property is not a bill of sale.' The English courts do not regard with favor such agreements which operate against trustees, receivers, and judgment creditors. A clause providing that the contractor's materials shall be forfeited to the owner on his becoming insolvent or bankrupt is void under the English law, being contrary to the policy of the bankruptcy law."

In England it has been held that a stipulation that if the contractor. becomes insolvent or fails in the due performance of his contract, the company may enter and use his plant and materials and construct the works on their own account, does not, on such insolvency or failure, vest the plant and materials in the company unless actual damages or loss has been oocasioned by the noncompletion of the works. Under such a clause the company has been held to be entitled to retain what it has seized, the seizure being a protected transaction within the bankruptcy act of 1869, § 94.' It seems that the owner may stipulate for a lien upon the contractor's plant, with a right to use the tools and materials in the completion of the work, according to and in fulfillment of the contract.

In America the property in a ship, during construction, follows the keel. It has therefore been held that if an owner repair his vessel with the materials of another man, the property in the materials is in the owner; but if a contractor builds the vessel from the keel with another's materials the whole will belong to the owner of the materials.'

In the case of an executory contract to build a vessel, to be paid for in installments as the work progresses, the title to the vessel remains in the builder until the work is completed and delivered." If it has been expressly

1 Brown v. Bateman, L. R. 2 C. P. 272 [1867]; Reeves v. Barlow, 12 Q. B. Div. 436: Blake v. Izard, 16 W. R. 108; and se Emden's Law of Building Contracts 202-3, giring the English law; and many cases in 29 Amer. & Eng. Ency Law 950-955.

Yater v. Mullen, 24 Ind. 277; Gates Iron Wks. Cohen (Colo. App.). 43 Pac. Rep. 667; see also Vaughn v. McFadyen (Mich.), 68 N. W. Rep. 135.

3 Reeves v. Barlow, L. R. 12 Q. B. D. 436 [1884]; several cases cited and distinguished.

4

Collyer v. Isaacs, L. R. 19 Ch. D. 342.

5 Jay. Harrison, L. R. 14 Ch. D. 19 [1880]; Ex parte MacKay, L R. 8 Ch. 643; Ex parte Williams, L. R. 7 Ch. D. 138.

Garrett v. Salisbury & D. Ry. Co., L. R. 2 Eq. 358.

In re Waugh, 4 Ch. Div. 524.

8 Hawthorne v. Newcastle, etc., R. Co., 3 Q. B. 734, not; Garrett v. Salisbury, etc., Ry. Co., L. R. 2 Eq. 358; In re Winter, 8 Ch. D. 225; and see Hunt v. So. Eastern R. Co., 45 L. J. C. P. Div. 87.

Coursin's Appeal, 79 Pa. St. 220 [1876]. 10 Elliott v. Edwards, 35 N. J. Law 265 [1871].

agreed between the builder and the employer that when an installment was paid, the vessel so far as constructed was to become the property of the employer, then the burden is on the latter to show that his title vested before the lien of creditors attached.'

If, however, the contractor is to be paid for the "materials furnished," he can demand payment not only for materials delivered and inspected and received, but also for such as he has procured or prepared to be furnished.**

In the United States the operation of the lien laws in protecting materialmen and mechanics and securing to them their claims against contractors by attaching to the structure, has rendered the use of these clauses less frequent, as they are primarily to protect the owner against such claims; but when the works are extensive, requiring special plants or appliances, or the materials are such as cannot be obtained in the open market, or money is to be advanced as materials are delivered, inspected, and accepted, the clauses should be employed.

274. Provision that Contractors shall Remove Temporary Structures and Dispose of Waste Materials.

Clause: "Upon the completion of the works the contractor further agrees to remove all temporary structures; fill up all holes and trenches; level all mounds or heaps of earth that may have been built, dug, raised or made by him in the execution of the works or incident thereto, and to remove and clear away all surplus or waste materials or rubbish of whatever kinds remaining on, in, or round about the works, and to deposit such refuse materials at such places on or near the works as the engineer may designate, or if so required to remove it entirely from the premises of the owner to such proper place as the contractor may provide, and the engineer shall be sole judge of what is or is not waste material or rubbish. The works and premises to be left and delivered up to the owner in a clean, neat, tidy, and workmanlike manner, clear of all rubbish and litter of whatever description."

275. Contractor Required to Dispose of Waste Materials.-The above clause is an essential provision of every contract requiring temporary structures or making waste materials, and one that will save the owner or company considerable expense to clean up, after a job is finished. There can be no question as to its propriety and construction or as to its legality and effect. The clause will be found a valuable one in works of excavation, grubbing, and removing of old structures. It prevents any misunderstandings as to what is or is not refuse, or any question as to who is to pay for the carting and final disposal of such rubbish as nobody wants about their premises. In cities where such stuff may have to be hauled to great distances this becomes an important item of expense.

In the absence of such a clause, the trouble that arises will perhaps be

1 Elliott v. Edwards, 35 N. J. Law 265

[1871].

2 Dickinson v. Gray (Ky). 8 S. W. Rep. 876; and 9 S. W. Rep. 281 [1888].

* See Sec. 272. supra.

best illustrated by a few cases. If the contract provide that the earth and waste material shall be deposited "where ordered by the engineer," it becomes. the duty of the engineer to provide a convenient place, and if he fail to do so, then the contractor is entitled to damages which he suffers in disposing of them.'

When the contract simply provided that the materials dredged should "be deposited inshore, so as not to interfere with the work," it was held that it was not the duty of the company or owner to provide such shore as a place of disposal for redged material, and that the contractor was not justified in abandoning ha contract because the shore inspector prevented him from depositing such materials thereon.'

Under a contract to remove a large quantity of rock which lay on the margin of a navigable stream, where to blast this rock into the stream was much less expensive than to remove to a greater distanced, it was held that the contractors could not obstruct navigation by blasting rock into the stream, but that they were bound by their contract to remove the rock without committing a nuisance.'

If the contract is silent as to where the contractor shall put the earth, and the parties have themselves given a practical construction to it, they will be bound by that interpretation.*

If a contractor deposits earth and rubbish upon an adjoining or abutting lot, or in the street, the contractor, if he be an independent contractor, and not a servant, is liable for the trespass, and not the city or owner. In fact the owner is not liable for any negligent or unlawful acts on or in regard to adjoining estates by the contractor, when the work which the contractor has been employed to do is not a nuisance, or the natural result of such work will not be an injury to such estates."

It is the duty of the contractor, as well as the city, to ascertain, before entering upon a contract, the right of the city to rest its structures (as a street embankment) on abutting premises without the consent of the owner.' A village has been held liable for damage to abutting property by the deposit of earth thereon in the construction of a sidewalk supported by a sloping embankment."

Phila Wil. & Bal. R. Co. v. Sebre IIoward, 13 How. Repts 307.

* Cronin . Tel:o (N. Y ), 39 N. E. Rep. 314. It should be stated that the owner promised and did subsequently provide a place inshore to dump in. S. C., 24 N. Y. Supp. 644.

Teun. & C. R. Co. v. Danforth (Ala.), 13 So. Rep 51.

Chicago N. Gt. E. Ry. Co. v. Vosburgh, 45 Il 311 [1867].

Fuller v. City of Grand Rapids (Mich.), 63 N. W. Rep 530; Kinser v. Dewitt (Ind. App.), 34 N. E. Rep. 1014; Alabama Mid.

R Co. v. Martin (Ala.), 14 So. Rep 401; City of Buffalo v. Clement, 19 N. Y. Supp. 846 semble Mairs v. Manuf. R. Est. Ass'n, 89 N. Y. 498 [1882].

6 Cases 14 Amer. & Eng. Ency. Law, 840; Ketchum v. Newman (N. Y. App.), 36 N. E. Rep. 197, shoring up a building on adjoining estate; and see St. L & C. Ry. Co. v. Drennan, 26 Ill. App. 263 [1887].

Mathewson v. Grand Rapids (Mich.), 50 N W. Rep. 651.

Carll v. Village of Northport (Sup.), 42 N. Y. Supp. 576.

* See Sec. 638, infra.

In England and Ireland the superintendent and the engineer who has charge of work and directs it have been held liable for trespass committed by the workmen in prosecuting the work.'*

A city is not liable to a sewer contractor for delay caused by the act of the inspector of work and materials, appointed by it under the contract, in rejecting materials which should have been accepted. The contractor must bear the expense of such delay.'

276. Provision for the Inspection and Rejection of Inferior Materials and Work.

Clause: "The said part....of the second part hereby agree....that all materials and workmanship, of whatever description, shall be subject to the inspection and rejection of the engineer, and that the entire work shall be done to his satisfaction and approval. That the engineer may appoint such assistants as he may deem necessary to inspect the materials to be furnished and the work to be done under this agreement, and to see that the same strictly correspond with the specifications herein set forth, that any unfaithful or imperfect work or materials that may be discovered before the final payment for the work shall be corrected immediately, on the requisition of the engineer, notwithstanding that it may have been overlooked by the proper inspector and estimated, and it is hereby expressly agreed that the inspection of the work shall not relieve the contractor[s] of any of his [their] obligations to perform sound and reliable work as hereinafter [herein before] described and explained." ↑

In condemning or rejecting materials, work, or parts, the engineer must be specific in his charges, and in ordering certain parts to be replaced or renewed he must describe those parts and their defects, so that the contractor can remedy them. A notice to the contractor that certain parts of machinery were "worthless and dangerous, not fit for use, liable to cause damage, their construction in direct violation of the contract," without other specification of the nature of the alleged defects, was held insufficient to require the contractor to replace such parts of the machinery or to defeat his right to recover therefor.*

When the quality of materials are objected to and the contractor had agreed with the owner that if it did not prove to be the quality contracted for, he need not pay for it, and it proved inferior, the owner is entitled to have deducted from the contract price of the entire work the reasonable value of the quality required by the specifications, and not merely the value. of the inferior materials actually used."

An engineer should take pains to carefully inspect and test materials

1 Wilson v. Peto, 6 Moore 47; Monks v. Dillon, 10 L. R. Ir. 349, 12 L. R. Ir. 321. 2 Montgomery City of New York (N. Y. App.). 45 N. E. Rep. 550, affirming 29 N. Y. Supp. 687.

3 White v. School District (Pa.), 28 Atl.

* See Sec. 842, infra.

Rep. 136; and see Board v. O'Connor (Ind.), 35 N. E. Rep. 1006.

4 Gubbins v. Lautenschlager (C. C.), 74 Fed. Rep. 160.

"Wheaton v. Lund (Minn.), 63 N. W. Rep. 251.

See Sec. 415, infra.

before approving and accepting them, for it seems that when he has once given his approval he cannot withdraw it.'*

The contractor should secure the engineer's or architect's approval before using materials subject to his acceptance, or he uses them at his peril. †

277. Provision that Condemned Materials shall be Removed and Replaced.

Clause: "It is further agreed that if the work, or any part thereof, or any materials, found or brought on the ground for use in the work, or selected for the same, shall be condemned and rejected by the engineer as unsuitable, defective, or not in conformity with the specifications, the contractor shall forthwith remove such materials from the work, and rebuild, or otherwise remedy, such work, as may be directed by the engineer."

277a. Defective Materials Purchased and Used. -Contractors and owners in purchasing materials, or in specifying them in a contract, should insist that they shall be of a certain brand or of a quality described, and it is a good practice to require a warranty that they shall be of the quality and character specified. The manufacturer or materialman should also be informed as to the purpose for which materials are wanted, and what is required of them in the matter of tests and service. If these precautions are not taken, no complaints can be made that the materials supplied by the dealer or contractor are defective or do not meet the tests required.

When paving-stones are furnished according to dimensions set forth in specifications, there is no implied warranty that they are suitable for a particular work if the supply man were not advised as to what such work required. This is true where the purchaser had a chance to inspect the materials before making the purchase.*‡

Likewise, when a contractor was to build abutments, and a certain kind of stone was specified, and the stone agreed upon was used, and after the completion of the work it was discovered to be defective, but it did not appear whether the defect was owing to the quality of the stone or to the poor workmanship, it was held that the plaintiffs were entitled to recover the contract price, unless it was shown that the defect was in the workmanship. The same was held when the sand to be used was designated. If

1 Jones v. Gilchrist (Tex.), 27 S. W. Rep. 890.

2 Higgins v. Lee, 16 Ill 495 [1855].

3 Talbot Pav. Co. v. Gorman (Mich.), 61 N. W. R p. 655: American W. W. v. Rivers, 36 Fed. Rep. 880 [1888]: Brooks & F. Co. v. Patterson (Mich.), 63 N. W. Rep. 436; and see Steffen v. St. Louis (Mo.), 36 S. W. Rep. 31, where the engineer *See Secs. 388 and 390, infra.

required stone to be screened.

4 T. B. Scott L. Co. v. Hafner-Lothman M. Co. (Wis.), 65 N. W. Rep. 513; Omaha C. C. & L. Co. v. Fay (Neb.), 55 N. W. Rep. 211.

Vanderwerker v. Vt. Central R. R. Co., 27 Vt. 130.

McLane v. De Leyer, 56 N. Y. 619..

+ See Sec. 414, end, infra.

See Sec. 257, supra.