the contractor has given the owner notice of the poor quality of the materials he is using, and the work is carried on under the eyes of the owner, he cannot refuse to pay for the work, it seems, because the structure (a stone wall in this case), is 30 much affected by the weather as to prove worthless.'

A contractor's right to recover the contract price was held not defeated by the fact that the bricks purchased by him, in good faith, and used in the building, were made of inferior clay, the defect not being discoverable by careful inspection, nor until developed by exposure to the weather after the building was completed."

If, however, materials are not of a stipulated quality, the purchaser is not confined to a rescission of the contract, and a recovery of the money paid for freight and customs duties, and for storage, but may recover also damages. as for a breach of the contract.

3

The manufacturer or supply man is liable to the purchaser only.'

278. Provision that Condemned Materials and Work shall be Replaced by Contractor. If he Neglects or Refuses to Make them Good, Owner may Repair and Charge to Contractor.

Clause: "It is further agreed that if any materials be brought upon the works, or on the land or property of the company or owner, or to the places where any operations have been or are being carried out in connection with the works, or should there be any of the workmanship which, in the judgment of the engineer or his assistants, or the inspectors authorized by them, shall be of an inferior quality or description and improper to be used in the works, or are unfit for the several purposes to which they are applied or intended to be applied, or are not in accordance with the specifications or the said drawings, instructions, or directions, or this contract, respectively, the said materials shall be removed and the workmanship amended forthwith, or within such period or periods as the said engineers or inspectors may direct. If the contractor neglect or refuse to comply with these conditions, any or either the engineers or assistants, or other persons authorized by them, on behalf of the company or owner, and by their agents, servants, and workmen, may remove the materials and workmanship so objected to, or any part thereof, and replace the same with such other materials and workmanship as shall be satisfactory to him or them, and the company or owner may, on the certificate of the engineer, deduct the expense thereby incurred, or to which he [it] may be put or be liable, or which may be incident thereto, from the amount of any money which may be or may become due or owing to the contractor, or to recover the same by action at law or otherwise from the contractor, as he [it] may determine. And the contractor shall also forthwith pay to the board the sum of $...... per day for every day subsequent to the period or periods above specified during which the materials or

1 Collins v. Money, 4 Miss. 11; and see Henderson B'dge Co. v. O Connor, 11 S. W. Rep. 18 [1889; Higgins v. Lee, 16 Ill. 495 [1855].

2 Wisconsin R P Brick Co. v. Hood (Minn.), 69 N. W. Rep. 1091; Badger v.

Kerber, 61 Ill. 328.

3 Taylor . Saxe (N. Y. App.), 31 N. E. RP 258.

4 Winterbottom v. Wright. 10 M. & W. 109; Losee v. Clute, 51 N. Y. 494.

workmanship, or any part of them, shall not have been removed, such sum of $.... a day to be deemed liquidated damages, and not a penalty."

.....

279. Provision that Contractor shall Provide Facilities for Inspection. Clause: "It is further agreed that the contractor shall at all times provide for the engineer and his authorized agents and assistants convenient means of access to all parts of the work during its entire progress, so that he shall have full liberty from time to time, and at all times, to inspect, examine, and test the materials and workmanship furnished; and he shall be afforded every reasonable facility for ascertaining that the stock and materials employed and the workmanship furnished are in accordance with the requirements and intention of this contract and specifications."

280. Provision that Works shall be Pulled Down and Opened Up for Examination and Inspection.

Clause: "If either the engineer or his assistant, or other authorized officer, shall require it for his more perfect satisfaction, the contractor shall at any time during the continuance of this contract, pull down or unship any part of the works, and make such openings, and to such extent, through any part of the said works as the engineer or officers may direct, and which the contractor shall make good again to his satisfaction. If the works be found faulty in any respect the whole of the expenses thereby incurred shall be defrayed by the contractor, but if otherwise, by the company or owner."

281. Provision that Contractors shall Guard against Defective Foundations and Unfavorable Conditions.

Clause: "It being agreed and understood that the same conditions. and damages above mentioned (Sec. 278) shall apply, in the event of the contractor(s) refusing, at......own expense, to pull down, amend, and reconstruct any work.... ..may have erected upon an insecure or insufficient foundation, or shall not have sufficiently secured and protected the same against immediate and future injury, whether arising or to arise from weight, pressure, action of water, or otherwise, on being required so to do, by either the engineer or his assistants."** 282. Provision that Inspection and Approval of Engineer shall not Preclude the Subsequent Rejection of Inferior Materials.

Clause: "It is distinctly understood and agreed that the inspection and approval of materials by said engineer or inspector shall not in any wise subject the company to pay for the said materials or any portion thereof, unless employed or used in the said work, nor shall the same prevent the rejection afterwards of any portion thereof which may turn out to be unsound or unfit to be used in the work; nor shall such inspection be considered as any waiver or objection to the work on account of the unsoundness or imperfection of the material used." The subject of this stipulation is taken up and carefully considered in succeeding sections, to which the reader is referred.†

1 As to w at facilities for inspection a contractor is expected or required to furnish, see Morris v. Brown, 111 N. Y 318 * See Secs. 674, 678, infra + See Secs.

[1888], and cases cited.

See Clark's Architect, etc, Before the Law 332-4. 381-388, 390-396, 461–468, 482-490, infra.

283. Provision against the Sale or Use of Ardent Spirits.

Clause: "And the said contractor or builder further promises and agrees not to give or sell or allow to be given or sold by any agent or agents in his employ, any beer, liquors, or other ardent spirits, on or near the works or line of works, or allow any to be brought or used on the works by his employees or any other persons."

284. Provision that Contractor shall Provide and Maintain Suitable Offices for Engineers.

Clause: "The contractor shall construct and provide, at or near the sites to be occupied by the contract works, and at his own entire expense, proper working offices for the engineer and his staff, with all requisite fittings, stores, firings, lighting, etc., so as to make them habitable for working purposes at all times and under all circumstances, the same offices to be fitted up as directed by and to the full approval of the engineer. The contractor shall also provide proper attendances for such offices, which shall be always at the sole disposition and the entire use of the engineer, and shall be kept for that purpose throughout the whole period that any of these contract works are under execution.

"The contractor shall also provide the necessary laborers to attend the same offices, and an approved boat, hand-car, inspection car, horse and carriage, with qualified boatmen, sectionmen, operatives, or coachmen, to be always in attendance on the engineer and his assistants, for inspection, measuring, and levelling, and such other assistance as may from time to time be required."

285. Provision that Contractor shall Provide Closets and Lavatories.

Clause: "The contractor further undertakes and agrees to provide, erect, and maintain, at or near the works, suitable and lawful outhouses or closets for the use of his employees and workmen, and to provide a separate closet and lavatory for the use of the engineers, clerks of works, and inspectors, which shall be provided with a door, lock, and key, that it may be kept exclusively for their own separate use. 286. Provision that Contractors shall Make Tests, Borings, and Soundings.

Clause: "The contractors shall, at their expense, sink such trial holes and dig such trenches as the engineer may consider necessary for ascertaining the strata or nature of the ground, and the exact position. and levels of existing sewers, pipes, foundations, etc.

"Every part of the works and all the materials to be used therein shall be subjected to such tests from time to time during the execution of the works as the engineer may direct, at the expense of the contractor."

287. Provision that Contractor Shall Weigh and Test Materials, and shall Provide Weighing and Testing Apparatus for that Purpose.

Clause: "The contractor shall weigh, without extra charge, any materials and parts and portions of iron work or other materials that the engineer may require to be weighed, and he shall provide on the works approved testing and weighing machines for that purpose. testing-machine shall be provided that will test iron or other specimens up to...... .tons tensile stress, and another capable," etc., etc.

One

288. Provision that Contractor shall Have and Keep a Foreman or Representative on the Works, who shall Receive and Obey Instructions of Engineer.

Clause: "Whenever the contractor is not present on any part of the work where it may be desired to give directions, orders, or instructions will be given by the engineer in charge, and shall be received and obeyed by a competent superintendent or foreman who may have charge of the particular work in reference to which the orders are given, and such superintendent, agent, or foreman shall be considered as acting in the contractor's place, and all orders or instructions given to such agent or other persons by the said officer in charge shall be as binding on the contractor as though given to himself in person." 289. Provision that Contractor shall Not Assign nor Sublet Work.*

Clause: "The contractor shall not sublet any portion of the works, but must construct and carry on the same with his own men and under his own supervision. This clause, however, does not apply to the furnishing of material for the different parts of the work, for which the principal contractor will be held strictly responsible, and no excuse for the quality of the material or for the non-delivery in good time by the sub-contractor as affecting the progress of the work will be entertained."

290. Provision for Liquidated Damages to be Assessed for Assigning or Subletting Work.

Clause: "The contractor shall not assign or make over this contract to any other person, nor underlet it, nor make a sub-contract with any workman or workmen for the execution of any part of the cast-iron, wrought-iron, steel, or other metal work, timber, brickwork, groundwork, masonry, or any other work appertaining to this contract, but shall employ his own workmen for the labor thereof, who shall be paid by him in wages by the day. And in case the contractor assigns or makes over this contract, or underlets or makes a sub-contract contrary to this agreement, he shall, for each offense, pay to the board the sum of $500, which shall be deemed liquidated and ascertained damages, and may be recovered by action, or deducted by the board from any sum or sums due or to become due to the contractor under this contract or otherwise howsoever." †

291. Provision that Contractor shall Not Assign or Sublet Work, without Permission.

Clause: "The party of the second part agrees that he will give his personal attention constantly to the faithful prosecution of the said work; that he will not assign or sublet the aforesaid work, or any part thereof, without the previous written consent of said engineer, owner, or commissioner of public works indorsed on this agreement, but will keep the same under his own control; that he will not assign, by power of attorney or otherwise, any of the moneys payable under this agreement, unless by and with the like consent signified in like manner; that

*If this clause is used, then the word "assigns" should not be used in clauses Secs. 4 and 207. supra.

See Secs. 13-16, Chap. I, supra.

no right under this contract, nor to any money to become due hereunder, shall be asserted against the parties of the first part or against any department, bureau, officer, or officers of the company or city, by reason of any so-called assignment, in law or equity, of this contract or any part thereof, or of any money due or to grow due hereunder, unless such assignment shall be authorized by the written consent of the said officer or commissioner indorsed hereon; that no person other than the party signing this agreement as the party of the second part hereto now has any claim hereunder; that no claim shall be made excepting under this specified clause, or under paragraphs......and......of this agreement by any person whomsoever, and that the said party of the second part will punctually pay the workmen who shall be employed on the aforesaid work in cash current, not in what is denominated as 'store pay.

292. Provision that Contractor shall Not Assign or Sublet.

Clause: "And it is further agreed by the said contractor or party of the second part that he will give his personal attention and supervision to the work; that he will not sublet any portion of the work or assign any part of his contract without consent of said party of the first part." 293. Clause Forbidding Assignment or Subcontracting is Binding on Assignor and Assignee.t-An assignment of a construction contract in express. violation of such a provision, forbidding it, is void, and a party claiming under such an assignment is entitled to no relief in equity.' If the contract provide that no part of it shall be assigned without the express consent, in writing, of the owner or engineer, then no interest whatever can be transferred without such consent."

A provision that the contractor shall not assign any of the moneys payable under his contract under the penalty of forfeiture, etc., is for the benefit of the owner alone, to protect him against dereliction or insolvency of the contractor. If, however, an installment of money not yet due under the contract be assigned to a materialman and notice be given to the owner with his exception, subsequent creditors of the contractor can derive no advantage therefrom."

294. The Provision may be Waived. The provision may be waived by the owner; and to show such a waiver it has been held enough to prove that the engineer, whose written consent was required in case of assignment or subcontracting, knew that subcontractors were at work, that he had directed and given estimates of their work, and that the president of the company knew of and permitted the contractors to continue the work without objec tion. If there has been a subletting of a portion of the work previous to

1 Grigg v. Landis, 19 N. J. Eq. 350 [1868]

Burck v. Taylor, 14 Sup. Ct. Rep. 696; Hobbs v. McLean, 117 U. S. 567, distinguished.

3 Barnett. Mayor, 31 N. J. Eq. 341,

* See Sec 144, supra.

[1879].

4 Danforth v. Tenn. & C. R. Co. (Ala ), 11 So. Rep. 60: Launman v. Young, 31 Pa. St 306; and see Barnett v. Mayor, 31 N. J. Eq. 341 [1879].

+ See Secs. 13-16, supra.