invalidates nearly all agreements, and nearly all obligations, if it can be shown that the engineer, when acting in the capacity defined in this clause, has knowingly and willfully overestimated the amount of the damage; in other words, if it can be shown that he acted dishonestly in the matter, his verdict can be set aside and the matter can come before the court. Otherwise the court will rule that his verdict must hold, and the question can not be opened. As it is very difficult to establish a question of motive, and as the burden of proof rests wholly upon the contractor, it would seem that this method of writing the damage clause had many advantages. The following is a fair example of such a clause. In case said contractor shall fail to fully and entirely, and in conformity with the covenants, terms and agreements of this contract, perform, and complete said work, and each and every part and appurtenance thereof, within the time hereinbefore limited for such performance and completion, or within such further time as may be allowed by said Board for such performance and completion, said chief engineer shall appraise the value of the direct and computable damages caused to said city by such failure, owing to the disbursements made by said city on account of the further employment of engineers, inspectors and other employees, including all disbursements for office rent, transportation, supplies, and other matters connected with said employment; also the value of such other direct and computable damages as shall be caused by such failure; and the amount so appraised, when approved by said Board, shall be deducted by said Board out of such moneys as either may be due, or at any time thereafter become due, to said contractor under and by virtue of this contract, or any part thereof; and in case said appraised value shall exceed the amount of said moneys, then said contractor will pay the amount of such excess to said city, on notice from said Board of the excess so due; and it is hereby agreed that the decision of said chief engineer as to the said appraisal, when approved by said Board, shall be final and binding on both parties to this contract. * E. K. 87. The Discharge of Unpaid Claims of Workmen and Material men. The laws of many states provide that persons, who supply either labor or material to any con *It may or may not be wise to make the verdict of the engineer subject to the approval of his principal. tractor or other person, to be used in the construction of any building or other permanent work, if not paid by such party, may file a lien upon such completed or uncompleted work, this serving as a kind of first mortgage upon the property, under which the property can be sold and the claim satisfied. When such a law obtains, the only safe course, for the person paying for the work, is to satisfy himself before he fully pays for the work that all such claims have been liquidated, or he may if he choose, require the contractor to furnish a bond which may be sued upon, either by himself, or by such material man or laboring man as may have such a claim. This bond to be large enough to cover all such liabilities. When the party paying for the work desires to satisfy himself that such claims have all been discharged by the con tractor, the clause may be written as follows: Said contractor further agrees that he will pay punctually the workmen who shall be employed on the aforesaid work, and the persons who shall furnish material thereunder, and will furnish said Board with satisfactory evidence that all persons who have done work or furnished materials under this contract and shall have filed any account of such claims with said Board, have been fully paid, or are not entitled to any lien under the laws of this state; and in case such evidence be not furnished as aforesaid, such amount as said Board may consider necessary to meet the lawful claims of the persons aforesaid, shall be deducted from the moneys due said contractor under this contract, and shall not be allowed until the liabilities aforesaid shall have been fully discharged and the evidence thereof furnished said Board; and if such evidence is not furnished before the final payment under this contract falls due, said Board may pay such claims in whole or in part to the person or persons, firm or corporation claiming the same, and charge the amount thus paid to said contractor, who shall accept the same as payment to the amount thereof upon this contract. E. K. When the party paying for the work does not care to put himself to the trouble of obtaining the information as to the discharge of all such claims by the contractor, he may so frame the wording of the bond that it will cover this case satisfactorily. In this case this portion of the bond may read as follows:* -as principal, and The said-andas securities, hereby bind themselves and their respective heirs, executors or administrators, unto the City of St. Louis, in the penal sum of dollars, lawful money of the United States, conditioned that in the event the said shall faithfully and properly perform the foregoing contract according to all the terms thereof, and shall, as soon as the work contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof, then this obligation to be void, otherwise of full force and effect, and the same may be sued on at the instance of a material man, laboring man, or mechanic, for any breach of the condition hereof; provided, that no such suit shall be instituted after the expiration of ninety days from the completion of the above contract. 88. No Claims for Damages on Account of Suspension of Work. When the work contracted for is of a public character, as for a city, or for the United States Government, and when it is expected to continue for a considerable period, and be paid for by appropriations from time to time, and also in other like contingencies, it is common to insert a clause to the effect that the contractor shall make no claim for damages for necessary delays he may experience in carrying out the work, when these delays are caused by the failure of appropriations, or by legal proceedings, and the like. On ten days notice the work under this contract may, without cost or claims against the party of the first part, be suspended by them for want of funds, or for other substantial cause. Upon receipt by the contractor of the order for the suspension of the work, all the materials shall be piled up compactly, so as not to impede travel on the sidewalk or carriageway, or the use of fire plugs, gas or water stops, and all surplus material and rubbish shall be removed immediately from the street. When the party of the first part shall order the work to be resumed the contractor shall complete the same upon the terms and conditions of this contract. E. A. F. *This is the form universally adopted in all contracts made by the City of St. Louis. If not specifically so stated the material man, or the laboring man could not sue on the bond. 89. No Claims for Damages on Account of Delay. In order that the party of the first part shall be freed from all claims which may be set up by the contractor for damages on account of various delays and hindrances which he may have experienced in carrying out the work, and which he may make appear to have been caused directly or indirectly by the party having the work done, or by other contractors upon the work, the following clause is often inserted: The contractor shall not be entitled to any claims for damages for any hindrance or delay from any cause whatever in the progress of the work, or any portion thereof, but said hindrance may entitle said contractor to such extension of time for completing the contract as may be determined by the engineer, provided, he shall have given notice in writing of the cause of the detention. E. A. F. 90. No Claims on Account of Unforeseen Diffculties. In case it is the purpose of the contract to place upon the contractor all the responsibility for contingencies which may arise in the prosecution of the work, for which greater risk the party having the work done will, of course, pay in the increased price made by the contractor to cover such risk, the clause may be written as follows: The contractor agrees that he will sustain all losses or damages arising from the action of the elements, the nature of the work to be done under the specifications, or from any unforeseen obstructions or encumbrances on the line of the work which may be encountered in the prosecution of the same. E. A. F. 91. Protection of Finished Work. It is usually customary to hold the contractor responsible for the protection. and care of the work until it is all finally completed and accepted. Even such portions of the work as have been completed and provisionally accepted and payments made upon the same, should be taken care of and fully protected by the contractor, until the entire work has been turned over. This often entails considerable expense upon the contractor, and when dis putes on this question are liable to arise, it is well to insert such a clause as the following: Contractors will be held responsible for any and all materials or work to the full amount of payments made thereon, and they will be required to make good, at their own cost, any injury or damage which said materials or work may sustain from any source or cause whatever, before final acceptance thereof. O. M. P. 92. Protection of Property and Lives. It is always understood that the contractor shall he held responsible for all damages to property which may arise from any fault of his, or from any accident which may occur during the performance of the work. He is also held responsible for all losses of life or limb, and for all personal damages which may be sustained either by his own workmen or by the public, by or on account of the works he has under construction. In other words, it is made his duty to protect both life and property, so far as possible, from all damage, so far as these may be traceable to the works themselves. If this responsibility were not specifically placed upon the contractor, the party having the work done would often be obliged to sustain the loss, since he authorizes the execution of the work, and the contractor is his employee or agent. This clause is often written as two separate clauses, one referring to the damage to property, and the other to the damage to persons. Furthermore the wording of the bond is usually so made as to cover both of these items, so that in case the damage or loss is greater than could be repaid by the amount of money at any time due the contractor when the accident occurs, suit may be brought upon the bond against the bondsmen to recover the remainder. Inasmuch as claims for damages, either to person or property, usually manifest themselves in the form of suits at law against the party authorizing the work and paying for the same, and not against the contractor himself, it is common to assume |