date, and prosecuted with such force as the Engineer shall deem adequate to its completion within the time specified; and if, at any time, the said party of the first part shall refuse or neglect to prosecute the work with a force sufficient, in the opinion of the said Engineer, for its completion within the time specified in this agreement, then, and in that case, the Engineer in charge, or such other agent as the Engineer may designate, may proceed to employ such a number of workmen, laborers, and overseers as may, in the opinion of the said Engineer, be necessary to insure the completion of the work within the time herein before limited, at such wages as he may find it necessary or expedient to give; pay all persons so employed, and charge over the amount so paid to the party of the first part, as for so much money paid to said party of the first part on this contract; or the said Engineer may, at his discretion, for the failure to prosecute the work with an adequate force, for non-compliance with his directions in regard to the manner of constructing it, or for any other omission or neglect of the requirements of this agreement and specifications on the part of the party of the first part,—declare this contract, or any portion or sections embraced in it, forfeited; which declaration and forfeiture shall exonerate the said party of the second part from any and all obligations and liabilities arising under this contract, the same as if this agreement had never been made; and the reserved percentage of one upon any work done by the party of the first part may be retained forever by the said party of the second part; and it is mutually agreed and distinctly understood, that the decision of the Chief Engineer of the said Railroad shall be final and conclusive in any dispute which may arise between the parties to this agreement, relative to or touching the same; and each and every of said parties do hereby waive any right of action, suit or suits, or other remedy in law or otherwise, by virtue of said covenants, so that the decision of said Engineer shall, in the nature of an award, be final and conclusive on the rights and claims of said parties.

In witness whereof, the said parties

ha hereunto set Witness:

hand and seal the day and year first above written.

QUESTIONS ON THE SIXTH CHAPTER.

Page 243. What is a contract? What are its component parts? How many copies should be signed?

Page 244. How are they classified? Define the different grades. Page 245. What are the four essential elements? Who may be parties to a contract and who not? Of what value is a compulsory signature?

Page 246. Is a party bound by the signature of his agent? How are corporations regarded? What is mutual consent? How does fraud affect the validity of a contract? What is assent? What is an offer on time? How long is an offer by letter good? Of what use is the consideration? Define it. What is the distinction between a good and a valuable consideration?

Page 247. How is the existence of a seal to be interpreted? Is the validity affected by the adequacy of the consideration? What is the effect if

it be illegal or impossible? What if a valuable consideration becomes worthless before part performance? Upon what subjects may contracts be made? How is the intention of the parties to be interpreted? What is the difference between an oral and written agreement? Upon what points may evidence be received in written contracts?

Page 248. How are words to be interpreted? If wording be obscure what results? What influence has the customary or local meaning of a word or phrase? What other elements may be introduced in an agreement to modify its terms and conditions? How are the duties of the parties to be stated? What are those of the contractor? of the employer? How may payments be made? Upon whom does the risk rest? May contractor claim a payment before acceptance of work? What are the stipulations when payments are made by instalment? May the certificates of an expert be required? What is the ruling in case of penalties for delay?

Page 250. How does a breach of contract by the employer affect the obligations of the contractor? What effect has extra work? What time may be allowed when none is specified? When does a given time expire? What is meant by a month? What is the limitation for simple cases? for sealed instruments? When is the guaranty required? What is it?

Page 251. Give the substance of the law relating to Government contracts; relating to appropriations for public works. Analyze the form given for use by the U. S. Engineers, indicating the general and several duties of the parties.

Page 253. Fill up the bond.

Pages 254, 256, 257.

Light-House contract?

What are the conditions imposed in the form of
What bonds and certificates are required?

Page 259. Analyze carefully the form of contract for a sewer.

Pages 262, 263. What are the elements of the contracts for a Reservoir and the general form for Iron Pipes for Aqueduct on page 273?

Page 275.

fee?

Page 277. of Way.

What are the stipulations for a Grant of Right of Way in

State the conditions of the preliminary agreement for Right

Page 278. What is the form of deed for Right of Way for a R. R., &c. Page 280. Analyze the form of Agreement for Graduation and Masonry. (Students should now be required to prepare all the papers for a complete contract, including the proposals and drawings, and endorse them for filing away.)

APPENDIX.

R. A. Malone vs. City of Philadelphia, in the case of the Hart Creek Sewer, giving some important rulings by Judge Fell, concerning the authority of Engineers in approving estimates when made sole arbitrers by the terms of the contract.

No. 2.-ROOM C.-Judge Fell.

The case of R. A. Malone vs. The City. The Assistant City Solicitor opened the case for the defence, and said that this was a case of great importance, not only in the amount of money claimed, but other questions involved. When this contract was entered into, the estimated cost of the sewer was about $230,000, but if what Mr. Malone claimed was allowed him, the cost would be increased to nearly double that amount. They would show that the plan under which this contract was framed had been deviated from, the work done in an entirely different manner from that required by the contract, and plaintiff could not, therefore, recover anything. If they failed in that they would show that there was a claim made for work done largely in excess of that which was really done, these excessive demands amounting to about $71,000. They would further show, by persons employed in the work, that, if the amount of work claimed for was done, it was done in such a manner that the plaintiff could not recover for it.

Chief Engineer Smedley was recalled by Mr. Willson and testified.

W. Milnor Roberts was the next witness called.

Mr. Willson in answer to a question by Mr. Sellers, said he proposed to prove by the witness that he, W. Milnor Roberts, spent about a month watching the prosecution of that work, from about the 4th of January, 1877; that as a result of the examination then made, to prove by the witness that the amount of rubble masonry as estimated for on the 6th-the estimate in suit-was in excess of the amount actually done; that the said work was not done according to the plan which was in existence when the contract was made, or according to the plan subsequently adopted; that the masonry in question was not laid according to the requirements of the specification; that the amount of earth estimated to have been removed was in excess of the amount actually excavated; that the amount of rock estimated to have been removed was in excess of the amount actually removed, and that the amount of the timber estimated to have been put in position by the contractor was in excess of the amount actually placed in position.

Mr. Sellers objected to the offer as irrelevant to the issues, contending that in the action brought, one in debt npon a monthly estimate, it was clearly inadmissible. Mr. Malone, he said, entered into a contract, which provided that upon the happening of certain contingencies he was to receive from the city certain estimates as the work progressed. He received an estimate showing the sum of $99,5co due him. Upon that estimate he brings suit, and the city pleas are nil debit, and payment with leave. Under these pleas the city can only set up one of two things: First, that the aggregate amount of the approximation estimate of December 8th, 1876, was so much in excess of the

work actually done, that if the excess was charged to this particular estimate it would pay it; and secondly, that the excess of work which it is alleged Mr. Malone was allowed for, is an excess which, according to the terms of the contracts, he cannot thus

secure.

Now all that the city claims is that he has been allowed for work representing $71,000 more than he was rightfully entitled to, and yet the estimate of the Engineer shows that, of the money actually due him for work done prior to this last estimate, no less than $79,000, or more than $8000 over all that the city claimed, has been retained until the final estimate is made. And since that time, too, it is admitted by the city that Mr. Malone did $50,000 more work. If, therefore, on this aporoximate estimate there are trifling discrepancies, on the final estimate, which provides that "all legal and equitable deductions shall be made," there is ample security for the protection of the interests of the city. Hence the contractor is clearly entitled to recover upon the presentation of the estimate, together with his contract. But, moreover, the evidence is irrelevant for another reason. The contract provides that in case any dispute or difference shall arise as to the efficiency of labor or quality of material employed, it shall be settled by the Chief Engineer and Surveyor, whose decision shall be final and conclusive on both parties.

We agreed to do the work not to the approval of any The City Engineer approved of it, Therefore, the city of Philadel

If Mr. Smedley, therefore, had chosen to say that the best brickwork in any aqueduct in this city, or in this very work, was defective, as he had a right so to do, we would have had no remedy and could not have recovered. to the satisfaction of the City Surveyor and Engineer, but roving Engineers who may happen to come along. and, upon further examination, still approves of it. phia, having taken Mr. Malone by the throat and required him to submit to the approval and decision of her Engineer as to material and workmanship, and that Engineer having decided in his favor, it is entirely immaterial what any other man or Engineer may think or say of the work. The contract says the Chief Engineer and Surveyor shall have the sole power of decision, and there is no reason why this contract stipulation should be broken down, especially when no harm can result to the city. Mr. Malone put himself at the mercy of the city's Engineer, who had the widest power over his work. In consideration, therefore, the city agreed that he should be paid npon estimates duly made out, and upon which 80 per cent. of the sum due was to be retained by the city until final estimate; when, according to the terms of the contract, "all legal and equitable deductions are to be made." Mr. Malone took the contract, bound himself to submit to the decision of the Chief Engineer, took the risk of the approval of that gentleman, a competent and able Engineer, and, having his approval, he contends that the city cannot, having shut his mouth, open hers. There is no allegation that we corrupted the city's officer, and such a thing has not even been suggested. Therefore, the evidence sought to be introduced is entirely irrelevant, and its introduction would be virtually tearing the contract between the parties to the wind.

Mr. Willson replied, contending that to exclude the city from introducing the offered testimony, there must be most positive words of exclusion in the contract itself. This was what the Supreme Court in previous cases had already invariably required, and there was no such language here. The cases decided above were mostly all cases in which the parties waived resort to the Courts and bound themselves to abide by the decision of arbitrators. Here Mr. Malone is only entitled to his money when he has done his work. We propose to show that he has not done it, that what he did do was improperly done, and that it was slighted in the absence of the city's officers. This was not, therefore, the work the doing of which was a condition precedent to the gettfng of the money. Mr. Smedley was not a fraudulent party to this agreement, but he himself must have been misinformed. Furthermore, the Engineer only had authority under