the execution of the contract, which had been acquiesced in by all the parties, it will not work a forfeiture under such a stipulation.'

295. What does Not Amount to an Assignment.-An agreement between a contractor and his surety, by which the latter is to furnish the money and have one-half of the profits, does not amount to a transfer or assignment of the contract, so that a stipulation in the contract that the assignment of the contract shall annul it, will operate.'

Nor does a letter to the contractor's attorneys authorizing them to receive the money due him from the company and to pay it over to his bankers, to whom he is indebted, upon which the attorneys wrote to the bankers promising them the money when they received it, operate as an equitable assignment. Such an authority may be revoked at any time before it has been executed.'

296. A Contract is Assignable unless it is Expressly Prohibited, or It is a Contract for Personal Services.-If there is no express prohibition against the assignment of a construction contract, any contract which is not a contract for the personal skill, taste, or professional ability of a person may be assigned.* A contract between a city and a corporation, its successors and assigns, for erecting and furnishing water to a city is assignable by the corporation.*

297. Provision that Engineer shall Lay Out Works, and Contractor shall Preserve his Lines and Levels.

Clause: "Previous to the commencement of the work the engineer will give the lines and levels for the same, and the contractor shall thereafter carry out and maintain the works in every particular, according to such lines and levels, as laid out by the engineer in charge thereof, according to the drawings herein specified, or according to such other approved drawings as may be supplied, and to such directions as he may receive from time to time, and he shall be held responsible for the correctness of the same throughout the whole term of this contract until the works are completed and accepted."

298. Provision that Contractor shall Provide Such Labor and Structures as Engineer may Require to Assist in Staking Out Work.

Clause: "The contractor shall provide such men as the engineer in charge thereof may require to assist him in setting out the works, and he shall furnish, free of charge, such temporary structures at and about the work as may be necessary for maintaining points and lines given by the engineer for the building of the work, and will furnish said engineer such facilities and materials for giving said points and lines and levels as he may require; and the engineer's marks and stakes shall be carefully preserved and protected by the contractor."

1 Launman v. Young. 31 Pa. St. 306. Bowe v. United States, 42 Fed. Rep 761 [1890].

Rodick v. Gandell, 1 De G. M. & G. 763; see also Morrell v. Wooten, 16 Beav. See Assigns, under Parties,

197.

4 Carlyle W. L & P. Co. v Carlyle (Ill.), 29 N. E. Rep. 556 [1892]; accord, Wentworth Cock, 10 A. & E. 45; Robson v. Drummond, 2 B & Ad. 308. Chap I., Sers 13-16, supra.

299. Provision that Contractors shall Determine the Lines and Levels for the Work and be Responsible for the Accuracy and Correctness Thereof.

Clause: "The contractor hereby agrees to set out and keep correct the works in every particular, according to the drawings herein specified, or such other drawings as may be supplied, or the directions that he may receive from time to time, and to be responsible for the correctness of the same throughout the whole term of this contract; and he shall be responsible for the correctness of the position, levels, and dimensions of the several works according to the drawings and written instructions of the engineer notwithstanding the contractors may have been assisted by the engineer or assistant engineer in setting out the same; and if at any time during the progress of the works any error shall appear or arise therein, the contractors, on being required so to do by the engineer, shall remove and amend the work to his satisfaction. The levels shown upon the plans and sections are supposed to be correct, but the contractors must verify the same, as well as all other particulars of the contract on the ground, should they think fit so to do, and they will be held responsible for the consequences of any error contained therein or omission therefrom."

CHAPTER XI.

COMMENCEMENT AND COMPLETION OF WORK.

TIME FIXED AND CALCULATED. DELAY IN COMPLETION AND DAMAGES ASSESSED. LIQUIDATED DAMAGES AND PENALTIES. DEFECTIVE WORK

AND REPAIRS.

300. Provision Fixing Time When Work shall be Commenced and When Completed.

Clause: "On the execution of this contract, complete and full possession of the said premises, so far as may be necessary for the execution of the said work, but not so as to constitute a tenancy, shall be given to the contractor, who shall forthwith commence the said work [or who shall commence said work on or before the .... day of . . . .], and actively prosecute the same; and the said work shall in all respects be completed within .... calendar months from the time when such possession shall be given. Provided that in case any delay shall rise from fire, tempest, frost, or other inevitable cause or accident, or from any strike in the building trade, or by the default of the owner in paying in due course any moneys due and payable to the contractor under this contract, then such further time shall be allowed for the completion thereof as the said engineer or architect shall in writing certify to be reasonable."

301. Provision that Possession of Site shall be Given with Order to Begin Work, but Delay to Give Possession shall Not Vitiate Contract.

Clause: "The board, city or owner will, with the engineer's written. order to commence the works, give to the contractor.. the use of so much of the site of the works as may, in the opinion of the engineer, be required in order to enable the contractor.. to commence and continue the execution of the works, and will, from time to time, as the works proceed, give the contractor.. the use of such further portions of such site as the engineer may, from time to time, consider proper in that behalf; but the non-delivery in manner aforesaid of the use of such site, or any part thereof, shall not vitiate or affect this contract, nor any provision therein, or in this specification contained, nor entitle the contractor.. to any increased allowance in respect of money, time, or otherwise, unless (and then only to the extent to which) the engineer may grant.... any extension of time under the provision for that purpose hereinafter contained."

302. Provision that Owner Retains Possession and Control of His Property.

Clause: "The party of the first part expressly reserve to themselves the right to occupy for their own purposes of whatever kind at any time and for so long a time as the engineer may by notice in writing to the contractors require, any portion or portions of the site of the works, whether the works to be executed thereon be commenced or are in progress or completed, and to employ thereon agents and workmen. other than the contractors in the execution of matters not the subject of this contract, and the contractors shall not obstruct such agents and workmen, but without extra charge, and without relief from any liabilities or responsibilites incurred under this contract, shall allow and provide them unmolested access thereto, and such facilities as in the judgment of the engineer may by him be reasonably demanded." 303. Provision that Work shall be Carried On as Directed.

Clause: "The said contractor(s) further agrees that the work to be done under this contract and these specifications shall be commenced within ........ days (or ........ weeks) after the execution of this contract, or after written notice to do so shall have been given by the owner, company, or city, or his (its) engineer or architect, and that the work shall be carried on at such points and in such order of precedence and at such times and seasons as may from time to time be directed by the engineer or architect, and with such force and in such manner as to secure its completion within the time hereinafter specified, the time of beginning, rate of progress and time of completion being essential conditions of this contract. The said contractor further agrees that he shall have no claim for damages upon the owner or company for any delay or expense to which the contractor may be subjected by the failure of other contractors to comply with the terms of their contracts."

304. Provision that Work Shall be Carried On as Directed by Written Orders of Engineer.

Clause: "And it is further agreed that the work shall be commenced and carried on at such points and in such order of precedence, and at such times and seasons, and with such force and in such manner as may from time to time be directed by the engineer; but no part of such works shall be undertaken without his written orders. And the time for completion, mentioned elsewhere herein, shall be computed from the date of the first of such orders. The contractor shall not enter upon, under, across, or through any house, building, shed, yard, area, roadway, ground, garden, or any other private property, for the purpose of carrying on the works, until authorized so to do in writing by the engineer. And he shall give due and sufficient notice to all companies, such as railway, gas, or water, etc., of his intention to enter upon their premises or interfere with their works.""

1 Under such a clause the contractor cannot require that the whole work shall be laid out so as to work on all parts at once. Henderson B'dge Co. v. O'Connors, 11 S. W. Rep. 18 [1889]. When work was to be done "under the direction" and "to the

satisfaction" of an engineer and whose certificate was to entitle the contractor to payment, it was held that the engineer had power to stop the work. Devlin v. 2nd Ave. R. Co., 44 Barb. (N. Y.) 81.

*See Secs. 309-314 and Chap. XIII, infra.

305. Period of Performance Fixed and Working Days Defined.

Clause: "The party of the second part will commence the work herein agreed to be performed by him within .... days from the day of the date hereof, and will carry on the same in such order and at such times and seasons, and with such force as shall from time to time be directed or prescribed by the said engineer, and will execute all work, in every respect, in a thorough and workmanlike manner, and will fully perform and complete all the work which he has herein agreed to perform on or before the expiration of.... days from the date hereof; but in the computation of time, the length of time (expressed in days and parts of a day), during which the work has been delayed in consequence of the condition of the weather, or by any act or omission of the parties of the first part (all of which shall be determined by the engineer, who shall certify to the same in writing), and also Sundays and holidays, on which no work is done, shall be excluded."

306. Work to be Prosecuted Day and Night.

Clause: "The work, unless otherwise authorized by the engineer, shall proceed continuously day and night, and generally the works shall, without extra charge, be carried on day and night without intermission, should there be any cause whatsoever which in the judgment of the engineer shall require it, but no work shall be carried on in the night without the knowledge and sanction of the engineer."

307. Time of Completion Fixed, but May be Extended by Engineer for Certain Causes.

Clause: "The contractor shall complete and deliver up to the board the whole of the works comprising the new bridge and approaches, and steamboat pier, and shall complete the removal of the temporary footbridge, the fenders, booms, and all other temporary works, within a period of .... years from the date of the engineer's order to commence the same, the whole of the works to be delivered up complete in every respect, in a clean and perfect condition. Provided always, that if by reason of the non-possession of any site or sites required for the purposes of the undertakings, or by reason of any additions to or enlargements of the works (which additions or enlargements the engineer is hereby authorized to make), or for any other just cause arising with the said board, or with either the engineer or his assistants, or in consequence of any unusual inclemency of the weather, or general or local strikes, or combination of workmen, or for want or deficiency of any orders, drawings, or directions, or by reason of any difficulties, impediments, obstructions, oppositions, doubts, disputes, or differences, whatsoever and howsoever occasioned, the contractor shall, in the opinion of the engineer, have been unduly delayed or impeded in the completion of his contract, it shall be lawful for the engineer, if he shall so think fit, to grant from time to time, and at any time or times, by writing under his hand, such extension of time, either prospectively or retrospectively, and to assign such other day or days for, or as for completion, as to him may seem reasonable, without thereby prejudicing or in any manner affecting the validity of the contract, or the sufficiency of the tender, or the adequacy of the sums or prices therein mentioned; and any and every such extension of time shall be deemed to be in fulĺ