tract contains all the objectionable elements by reason of which courts have refused to enforce such stipulations. The contract is to the satisfaction of one of the parties to the contract, or of an agent whom the city retains the right to control and direct, to employ and to discharge. He may be the agent, mouthpiece, and tool of the city or its officers, elected or appointed, and his determination is to all intents and purposes that of the city itself. The contract obligations, therefore, are not mutual.

456. Some Reasons why Stipulation should not be Favored, or Upheld Even. In view of what has preceded, it will be difficult to see how the stipulations can be sustained except upon the theory of a condition precedent. If adopted in certain states and if decisions already rendered were followed, they would certainly be fruitful of trouble and litigation, which would be expensive to both parties, and in which the contractor would probably have the best of the fight. Clauses so manifestly unjust, burdensome, and arbitrary, imposed by men acting for and in behalf of a justice-loving, fair-minded public, should not be upheld wherever and whenever the test is made one of jurisprudence, equity, or precedence.

The power to impose such restrictions and conditions in a contract for public work, required to be advertised and let to the lowest bidder, assumed by public officers without authority, is directly in contravention to the spirit and letter of the laws, charters, and constitutions of our public institutions, requiring open and honest competition before contracts for public work shall be awarded.

Conditions and stipulations so onerous and unfair, and so needless and useless, so tyrannical and arbitrary, might well be regarded as an additional burden imposed upon the people or property, paying for the improvement, without authority or reason.* By adopting them the officers of the city have assumed to increase the burdens, and therefore the taxes of the city, without authority, precedent, and almost without following. Burdens, contingencies, and possibilities are put upon the contractor, or bidder, which no reasonably careful and honest man would undertake, except at a price far above the actual value of the work. The reservation cf such privileges is a warning from men in power to any bidder that is not in favor, to not undertake the work without providing himself with the sinews of war, which must be at the expense of the work and therefore of the city.

457. Stipulations are Not in Favor Elsewhere. When Adopted, they have been Modified. That such stipulations are not in good favor is evident from the fact that many cities of New England which have adopted the clauses of the New York contract have omitted or modified these clauses so as to make the engineer's estimate binding upon both parties, excepting a brief statement as follows, viz.: "Provided, that nothing herein contained shall be construed to affect the right hereby reserved of the said Commissioner of

*See Sec. 334, supra.

Public Works to reject the whole or any portion of the aforesaid work, should the said engineer's certificate be found or known to be inconsistent with the terms of this agreement, or otherwise improperly given."* Whatever right the commissioner would have to reject and not pay for work would depend upon the rights reserved in other parts of the contract, but the right to repudiate unauthorized acts of the engineer the law reserves, and any acts or errors on his part which would imply bad faith or fraud entitle the owner or commissioner to the protection of the courts in any case, and under any stipulation. The clause as recited above would give no unusual privileges, and the question whether the certificate was or was not consistent with the terms of the contract, or had been improperly given, would become a question for the courts, and depend upon whether it was according to the contract and was free from fraud, collusion, or such gross mistakes as would necessarily imply bad faith.'

Whether work could be rejected which itself conformed to the contract and specification merely because the certificate was inconsistent may well be doubted.

458. The Clauses have Found Little Favor in the Government Departments, in other Cities or with Other Corporations.-The clauses have been in use for some years by the aqueduct commissioners, public works and deck departments of the City of New York, and were adopted wholesale by the village of Newton, Mass., in 1890, in the contract for its water works. They have not found sufficient favor to be adopted in other cities in New York State, in the United States, in Canada, or in Great Britain. The cities of Boston, Providence, Chicago, Cincinnati, Indianapolis, Kansas City, St. Louis, St. Paul; Toronto, Canada; Liverpool, London, and Manchester, England; the commercial, manufacturing, and railroad companies of the country; the Supervising Architect of the United States and the U. S. Army Engineers, the World's Columbian Exposition; the public works departments of Canada, England, or India, have not seen fit to adopt them. In fact, if these clauses as used by the various departments of the City of New York have inherent superiority or special strength, it must be in consequence of some conditions or circumstances peculiar to the city herself, or that is peculiar to the administration of the courts [laws] of the state. The various departments of other corporations, cities, states and governments have not discovered the necessity nor propriety of adopting them, notwithstanding thousands of printed copies have been distributed throughout the

countries.

The contract form adopted by the departments of engineering and public works for work on the New York State canals provides that state engineer and surveyor and division engineer shall finally and conclusiv ly 1 Semble, O'Brien v. Mayor, 15 N. Y. Supp. 525, 139 N. Y. 543, cases cited. *Providence; Massachusetts Metropolitan Sewerage Commission; Boston Water Works: S. Louis.

decide questions of quantity, prices, etc., subject however to the revision of the canal board, as provided by law. The right to revise or review the esti mates of the engineer is sometimes reserved, more frequently of late than formerly, where the engineer is a public official, perhaps elected or appointed, and therefore susceptible to political influence. The right to revise has been reserved to a railroad president.'

459. Modified Forms of the New York Clauses are in Use.-The 1891 contract for branch sewers of the City of Philadelphia (but not for main. sewer), requires "the work to be done to the satisfaction of the director [engineer], and that all materials and work shall be subject to the inspec tion and approval of the director" [engineer], which would probably be interpreted to his reasonable satisfaction and approval. The contract also contains the following clause:

"It is further expressly understood and agreed by and between the parties hereto, and is hereby made part of this agreement, that nothing contained in this contract or in the specifications hereto attached shall be taken or construed to preclude the said party of the first part from contesting the estimates or certificates of any officer of the City of Philadelphia, or the claim of the said part... of the second part under this contract, or under such estimate or certificate, but the said party of the first part shall be at full liberty to take every legal defense to the character, quality, and quantity of the said work and materials, and to the time and manner in which the same shall be furnished and done, notwithstanding the certificates or approval of any officer of said city," which is equitable and proper, since there is nothing in the contract which attempts to take away the same right and privileges from the contractor.

460. Cases Decided where New York Stipulations were Used. So far as the author has been able to learn there is no case which has fairly and squarely decided that a contract stipulation which makes the engineer's estimate and decision final and conclusive upon the contractor alone, should be upheld. The case of O'Brien v. New York' is sometimes cited as authority for such a statement, but it falls far short of it. In this case the question of the finality and conclusiveness of the engineer's decision upon the city was not determined nor questioned.

The claim of the contractors was for extra work in express contradiction to the terms of the contract, and the subjects herein discussed were not the questions which determined the decision. The case decided (1) that an engineer is confined to the express terms of his contract; (2) that the withholding of the engineer's certificate is immaterial when the contractor has received all that is due him; (3) that progress certificates do not affect the final certificate when final certificate is to be conclusive; (4) that no

1 Gonder v. Berlin Branch R. Co., 33 Atl. Rep. 61, 171 Pa. St. 492 [1895].

O'Brien v. Mayor, etc., of New York, 15 N. Y. Supp. 520 [1891]; s. c., 65 Hun 112 [1892]; on appeal, 35 N. E. Rep. 323

[1893]; s. c., 139 N. Y. 543 [1893]; 142 N. Y. [1894].

3 See also Gonder v. Berlin Br. R. Co., 171 Pa. St. 492 [1895].

recovery can be had for extra work unless ordered as required by the contract; (5) that the contractor should refuse to do work ordered which is not included in contract; (6) that the city is not liable to contractors for mistakes of engineer in giving erroneous lines and levels, even though he be an agent, servant, or officer of city; (7) that the circumstances existing at time of and which led to the passage of a statute may be considered in giving it a construction, and in construing the provisions of a contract made under it.'

461. Right to Revise Estimates or to Require Work to be Done According to Contract, Though Certified by Engineer. When the contract not only omits to make the engineer's certificate binding on the city, but elsewhere provides that neither the commissioners nor any department officers of the city shall be precluded by any return or certificate of the engineer from showing the true amount of work done, it is safe to say that the city would not be held bound by engineer's estimate if they could show that the engineer's returns were wrong. If the city or its officers should fail to exercise their power of revision or to show the true and correct quantities, and the certificate was held conclusive on the contractor, it should likewise be held conclusive on the city or owner.'

In Nebraska it has been held that "when payments are to be made on the certificate of the architect that the work has been done in strict accordance with the drawings and specifications, and that he considers the payments justly due," and it is further provided "that said certificate, however, shall in no way lessen the totai and final responsibility of the contractor, neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill or not according to the drawings and specifications either in execution or materials," was an agreement that the certificate of the architect should not be conclusive, and that the owner was not estopped by payments on such certificates from claiming damages because poor materials and defective work were furnished.*

462. Practical Working Effect of the Contract Stipulation. The practical effect of these stipulations where they have been used does not seem to have been all that was anticipated. Certainly New York City has furnished her full share of scamping scandals in the past twenty years, and the litigation has been almost unparalleled. The hardships to which her contractors may

O'Brien . Mayor of New York, 139 N. Y. 543; many cases cited.

v.

2 O'Brien v. New York, 139 N Y. 543 [1893]. Another feature of O Brien Mayor of New York is that they sued the city of New York when the contract was made under a special power conferred by the legislature, and the aqu duct commissioners and engineers who had ordered the extra work were held not the agents of the city.

Semble, Gonder v. Berlin Branch R.

Co., 171 Pa. St. 492 [1895]. This case de. cides nothing as to whether decision of engineer would be conclusive or not conclusive, but it seems to have been a foregone conclusion with the court that it was final and conclusive, and that the president could review and revise the engineer's estimates, as provided by the contract. See also Consaul v. Sheldon, 35 Neb. 247 [1892].

• Consaul v. Sheldon, 35 Neb. 247 [1892].

have been subject, under the contract terms employed, were enough to drive. a contractor to dishonest practices, litigation, and desperation.

463. Provision that Inspection and Approval shall not Relieve Contractor from his Liability to Furnish Proper Work and Materials.

Clause: "It is further agreed that the inspection or approval of the engineer, or his agents, or assistants, of all or any of the work during its construction, shall not relieve the said contractor from the full responsibility of doing the work required by the conditions of this agreement."

464. Provision that Progress Certificates shall not Relieve Contractor from Liability for Poor or Defective Work and Materials.

Clause: "And it is hereby further expressly provided that the granting of any progress (or final) certificate, or the payment of moneys thereunder, shall in no way lessen the liability of the contractor to replace bad or defective work, though the same may not have been detected at the time such certificate was given or acted upon.'

465. Provision that Progress Certificates are Made Subject to Revision and Correction in Final Certificate which May be Made without Notice to Parties.

:

Clause "It is further expressly understood and agreed by and between the parties hereto that the action of the engineer or surveyor by which the said parties [contractor] are [is] to be bound and concluded according to the terms of this contract, shall be that evidenced by his final certificate; all prior certificates upon which partial payments may be made being merely estimates, and subject to the correction of such final certificate, which final certificate may be made without notice to the contractor thereof, or of the measurements upon which the same is based." †

466. Provision that Contractor shall be Responsible for Protection and Preservation of Permanent and Temporary Works and Materials, and the Engineer's Inspection, Approval, or Certificate, shall not Relieve Contractor from Doing his Work Properly and Completely.

Clause: "From the commencement of the works to the completion and acceptance of the same the care of the whole of the permanent works, and of the whole of any temporary works until their removal, shall remain with the contractors, and they shall in every respect be held responsible for all accidents from whatever cause arising, and chargeable for anything that may be stolen, removed, or destroyed, to whomsoever belonging, and they shall also replace and make good all loss, injury, damage to, and all defects in the said works, or premises, or to the adjoining or other buildings, premises, and property, from bad or insufficient materials, bad workmanship, or any other cause whatsoever, and whether such damage or defects were occasioned by the negligence of the contractors, or their agents, or servants, or not, or may be or might have been discovered during the

*See Secs. 331, supra, and 482, infra.

+ See Sec. 482, infra.