should not choose to give their consent, then if they are still to be held for the fulfillment of the contract their consent to such changes must be purchased, the same as must be done with the principal himself as provided for in the specifications or contract. Because of this common oversight and the resulting relief of these sureties, or of their opposition to allowing changes to be made in case they are consulted, it is becoming customary to provide some other kind of guarantee of fulfillment, other than that of personal sureties.

11. Contracts Opposed to Public Policy. These contracts may relate to all such acts as may be shown to be detrimental to the public welfare. Such as acts which would tend to injure the public service, or to obstruct the course of justice, or to encourage litigation, or as have an immoral tendency, or as will restrain the freedom of trade, or as will diminish the security of property and life. As such contracts in general have no immediate bearing upon the work of engineers they will not be further enlarged upon here. There is, however, a class of agreements commonly entered into by the principals to an engineering contract which are often construed in the courts as against the public policy, which will be discussed in the following article.

12. Agreements Which Refer to Arbitration. The following discussion of this subject is taken bodily from Lawson on Contracts, being article 318 of that work.

"An agreement that matters which have arisen or may arise between the parties shall be referred to an arbitrator or arbitrators is not binding and either party may have recourse to the courts notwithstanding it. The reason of the rule is by some traced to the jealousy of the courts and a desire to repress any attempt to encroach on the exclusiveness of their jurisdiction, and by others to an aversion on the part of the courts from reason of public policy to sanction contracts by which the protection which the law affords the citizen is renounced.

"But when a contract contains a condition which provides that disputes arising out of it shall be referred to arbitration,

the validity of such a condition depends upon rather a fine distinction. Where the amount of damage sustained by a breach of the contract is to be ascertained by specified arbitration before any right of action arises, the condition is good; but where all matters in dispute, of whatever sort, are to be referred to arbitrators and to them alone, the condition is illegal. The one imposes a condition precedent to a right of action accruing, the other endeavors to prevent any right of action accruing at all. As well put by an English judge: 'If a tenant covenant that he will cultivate the demised land in a husband-like manner and also covenants that if any dispute shall arise in respect thereof it shall be referred to arbitration, an action may nevertheless be maintained; but where the covenant is to pay such damages as shall be ascertained by an arbitrator, no action will lie until he has ascertained them.'

"The principle is frequently applied in the United States to contracts for the construction of buildings, railroads, canals and other works involving numerous details. These contracts give rise to many questions which a court of law might reasonably send to a referee, and the parties may agree that such questions shall be determined by an architect or engineer or by arbitrators, and that such determination, or a bona fide effort to obtain it, shall be a condition precedent to the right to bring an action on the contract. Contracts of insurance usually contain similar clauses. Thus an insurance policy provided that, in case of differences arising touching any loss or damage, the matter might at the request of either party be submitted to impartial arbitrators whose award in writing should be binding on the parties to the amount of such loss or damage, 'but shall not decide the liability of the company under this policy;' also, 'it is furthermore mutually agreed that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery until an award shall have been obtained fixing the amount of such claim in the manner hereinabove provided.' It was held that no suit could be sustained against the objection of the company until an award had been made, although neither party previous to the suit had requested arbitration.

But it must be expressly stipulated in all cases that the award or determination is a condition precedent to the right of action on the contract, or the agreement to arbitrate will be of no effect.

Agreements of a similar nature have been held illegal, as aiming to oust the jurisdiction of the courts; as, for example, a provision in the by-laws of a benefit association that the decision of the officers on the claim of a member shall be final and conclusive. And parties are not allowed by contract to vary the procedure in the courts prescribed by statute. In Illi

nois a lease contained a provision that the landlord should have the right to take immediate judgment against the tenant in case of a default on his part without giving the notice and demand for possession and filing the complaint required by the statute. It was held that such a provision was illegal."

13. The Engineer as Arbitrator. In the carrying out of engineering and building contracts, the specifications are usually so written as to make the engineer or architect an arbitrator on almost all questions which can possibly arise under the contract, and it is usual to specify that his decisions thereon shall be final and conclusive. In view of what is given in the previous article it is evident that such a clause can not operate to prevent a case being brought before the courts under such a contract, but when it has been so brought it evidently will operate to sustain the decisions of the engineer on all points which may be construed by the court as "conditions precedent" to final settlement. On all questions of fact, however, which the court can pass upon as well as the engineer, and on all questions of law the court would retain its jurisdiction notwithstandthe agreement of both parties to submit all questions to the arbitration of the engineer, whose decisions were to be "final and conclusive." On all questions which the engineer is, from the circumstances of the case, especially competent to determine, as to quantities and classification, as well as all questions which are more or less matters of opinion as classification of materials and perfection of work done, the decision of the engineer will be sustained under such a clause, provided it be not shown that he has acted fraudulently in the matter. See Articles 85 and 108.

AGREEMENT.

14. Mutual Assent. In order that a contract shall be binding on both parties to an agreement it must have been under

stood and assented to by both in the very same sense. However clear the agreement would appear to be on its face, if it can be shown that the proposition was not mutually understood in the same sense it can not, in general, be enforced. It must not be understood, however, that all pleas of having misunderstood the plain and express provisions of a written contract will relieve the party making such claim from liability under it. In other words the mental agreement is evidenced by the language used in expressing such agreement, and the law will presume that such words were understood, provided their meaning is plain and evident. Furthermore whatever a man's real intention may be, if he so acts as to lead another person to reasonably suppose that he was assenting to a given proposition, and this person proceeds on this assumption, the other party so acting becomes bound by the proposition.

The agreement is not consummated until each party has communicated to the other, either orally, by letter, or by overt acts, his intention in the matter. The secret or mental acceptance of a proposition by one or both of the parties to it does not complete a legal agreement, until this mental act has been communicated to the other party.

A person making an offer, whether orally, by messenger, by mail, or by telegraph, or by public advertisement, must allow a reasonable time for its acceptance, provided no time limit is stated in the proposition. If the acceptance is returned by the same agency used in sending the offer, the contract is completed at the time such acceptance is delivered to such agency, whether the party sending the offer ever receives such acceptance or not. A person is bound by the acts of the agent of his own selection, and the failure of this agent to deliver to him the acceptance does not operate to prevent the completion of the contract. For instance, a proposition sent by mail is accepted at the time the letter of acceptance is deposited in the postoffice or letter box, and a proposition sent by telegraph is

accepted and the contract completed at the time of the delivery of a telegraphic reply at the telegraph office or to a telegraphic messenger.

If the person receiving the offer wishes it to remain open for a definite length of time, longer than might be construed as reasonable, if no time is specified, he must pay to the other party something which may be construed as a consideration for the privilege of acceptance for such specified time. On the other hand, the party accepting can withdraw his acceptance if he can succeed in having his withdrawal presented to the first party before his acceptance has been received. Thus an acceptance by mail may be withdrawn by telegraph, provided the telegram is received before the letter.

A mere offer may be withdrawn at any time before it is accepted, unless a consideration has been paid for the privilege of acceptance for a definite time as above described. A formal notice of withdrawal is not always necessary, as when the party receiving the offer becomes aware of the sale of the property in the mean time to another.

When an offer is made by mail or telegraph the means used for communicating the offer become the recognized agent of the party making such offer, and the party receiving it is at liberty to accept it as received, even though a mistake may have been made in the transmission of the same. Thus if an offer is made by telegraph, and an error has been made in transmitting the same, the erroneous proposition may be accepted either by mail or telegraph, and the party making such offer is bound. His only remedy is to sue the telegraph company for damages. This is because the party making the proposition assumed all responsibility for the correctness of the transmission by the agency selected by him.

When an offer has been made and no consideration paid to keep it open for a given time, it is supposed to stand for