contract. Words may be wholly rejected which are inconsistent with the manifest intention of the parties.

If a portion of the contract is printed and other portions written, the latter will take precedence over the former, when they are found to conflict.

Where both general and specific terms have been used in describing the same thing, the agreement will be limited to the scope of the more specific terms, and may not be applied to the more general.

Doubtful words will be construed more strongly against the party who used them. This is based on the principle that a man is responsible for ambiguities in his own expressions. Thus a deed is construed most strongly against the grantor, and a clause in a promissory note will be construed most strongly against the maker. Such a prejudice, however, is never exercised against either party, if possible to avoid it.

CONTRACTS REQUIRED TO BE IN WRITING.

35. The Statute of Frauds. In the year 1676 the English Parliament passed "An act for the prevention of frauds and perjuries" which has become common law for this country where it is not replaced by statutes in the various states covering the same ground. In either case where reference is had to the original English enactment or to the corresponding statutes in the various states, this law is commonly referred to as the "Statute of Frauds." The object of such a law is to prevent litigation and fraud by requiring certain kinds of contracts to be in writing. These in general relate to the official acts of executors or administrators, marriage contracts, to the sale and transfer of real estate, to agreements which can not be performed inside of one year, and other contracts for the sale of goods, wares, and merchandise of a value greater than $50.

As only the last two of these pertain to the character of the present work they alone will be discussed here.

36. Agreements Which Can Not Be Performed within One Year. The English statute provides that "no action shall be brought whereby to charge any person upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." That is to say, contracts which can not be performed within one year from the date thereof must be in writing. This is construed as meaning that the necessity for a written contract only holds when the performance within one year is demonstrably impossible. If by any possibility it may be fully performed within one year, an oral contract is valid.

Thus a contract for a year's service, to be entered upon at a future time, can not be performed within one year, and hence must be in writing. Or in the absence of a written contract to this effect an oral agreement can not be enforced, and either party is at liberty to annul the contract at pleasure. Where services have been rendered, however, under an oral contract which by this clause ought to have been in writing, the party benefited must pay for them.

Thus, also, a contract for the carrying out of any engineering construction, if it plainly can not be completed within one year, is not binding, unless it be in writing.

37. Contracts of Sale Where the Value Is More than $50. Another clause in the same original English statute reads as follows: "No contract for the sale of any goods, wares or merchandise, for the price of ten pounds sterling or upwards, shall be allowed to be good; except the buyer shall accept part of the goods so sold, and actually receive the same,

or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of said bargain be made, and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized."

Similar statutes have been enacted in this country in which the limit of the value of the goods sold is usually placed at $50, while in Maine and in New Jersey it is placed at $30. For all values over these amounts the contracts must be in writing or, as stated in the statutes, the buyer must give proof of his agreement by accepting and receiving a portion of the same or by part payment for the same.

It must be noted, however, that a contract for labor is not included in the statute. The limit of value here used applies not to individual articles but to the sum total of the articles named in the transaction.

SUBSEQUENT CHANGES AND AGREEMENTS.

38. The General Rule. In general any oral or written agreement may be altered at pleasure after it has been signed, when this is done by mutual consent. Alterations made at the time of, or previous to, the signing of the instrument become elements in the original contract.

Any change by mutual consent in the terms of an agreement after it has been signed makes a new contract out of the original agreement, and because of this a surety or a third party to the agreement not consenting to the change is released from all obligation. The new contract remains good as to those who consent to the change. In the case of engineering contracts where it is common to have sureties or bondsmen who guarantee faithful performance, such sureties must always be consulted and their consent obtained to any material change in the

original contract which may be mutually agreed on by the principals. In default of such reference and consent on the part of the sureties, they become discharged from all liability.

Even though the written contract has a clause forbidding any oral alteration in it, and declaring that no change shall be made in it except in writing, such a provision is void, and the contract may be altered by oral agreement notwithstanding. This is because in law oral and written agreements are of the same class, both being simple or parole contracts, and hence are of equal force and effect. An agreement in writing, therefore, by the parties, to forfeit their legal rights, does not operate to change the law in this respect, and their rights can not be forfeited by such an agreement. One of these rights is the privilege of modifying the contract by oral agreement.

Where contracts are illegal except when they are in writing, as under the Statute of Frauds, it follows that such a written contract can not be modified by oral agreement, since this would circumvent the law as applied to such cases. This also applies to promissory notes and other commercial paper. Oral agreements in regard to them are invalid, as they would work injustice to innocent parties.

Written contracts executed under seal, not required by law to be so, may be modified or altered by either written or oral agreements, but when this is done the whole contract is reduced to the force and significance of a simple or parole agreement, and no longer remains a specialty.

Furthermore this can only be done in the case of a sealed contract, when the new agreement or alteration rests upon a new and separate consideration. Where the seal is required by law, alterations must also be made under seal. If, however, all the parties to the original agreement are together, and the instrument is changed by the principals who signed and sealed it, in the presence of all, and with the consent of all, the alterations are valid.

39.

Results of Alterations of the Contract. This is one of the most important subjects connected with the execution of engineering work. Very seldom is an engineering or architectural project constructed strictly in accordance with the original plans and specifications. Usually the contract itself provides for changes in plans and specifications, and in general changes must be made in accordance with such provisions.*

While the court decisions are extremely various and frequently directly opposed to each other in their enforcements of contracts which have been changed more or less after they have been signed, it is thought the following is a fair interpretation of the intent of most of the authorities in passing on such cases.

(a) Changes in the contract will not operate to annul the original contract unless such was the plain intent of the parties, and so long as any portion of the original contract may fairly be construed as remaining in force.†

(6) In general, every change made in a contract after it has been signed, should be based on some kind of a legal consideration. Thus, if a change is made which involves an addition to the cost of the work, it should be accompanied and sustained by a corresponding increase in the compensation or price, or by a corresponding reduction in some other part of the work, or by a corresponding accommodation of some character in favor of the other party, which may be construed as a consideration for the change made. Otherwise the change agreed upon can not be enforced.

(c) Similarly, if the parties agree to a less performance than that required by the contract, unless there be also a corresponding reduction made in the price, or some other accommodation to the other party, which may be construed as a consid

* One exception to this rule is given in the previous article, where the contract pro. vides that changes shall be made only in writing.

It is sometimes expressly stipulated in the original specifications that subsequent changes shall not operate to annul those portions of the contract with which these changes are not in conflict.