work done, the owner may still enter a claim for damages for each and every particular in which the performance has been incomplete. Here again if the default is shown to be a willful neglect or refusal to comply, the law is construed much more severely than for mere oversights.

SPECIFIC PERFORMANCE.

54. General Rule as to Specific Performance. Suits to enforce specific performance can not always be maintained, for actions can be brought at law for such damages as may be shown to have resulted from a breach of the contract, or from a total failure to perform. It has been customary, however, to allow specific performance to be enforced in certain cases where suit is entered in a court of equity, but even in equity specific performance will not be enforced where a payment of damages will put the plaintiff in as good a position as if the agreement had been actually performed. Also if an action for damages would not lie, neither would an action for specific performance. In a case in equity, however, many considerations will be taken account of, in the way of meting out justice to the parties, which could not be considered in a case at law upon the terms of the contract itself.

Where specific performance is ordered by a court of equity, the same court will, if necessary, enforce its decree either by a mandate enforcing the performance named or by an injunction to prevent the doing of the contrary.

Since the parties to an engineering agreement can, as a rule, be fully compensated for a failure to perform on the part of either, by a recovery of damages, specific performance can not ordinarily be enforced, and hence this subject will not be further discussed in this connection.

DISCHARGE OF RIGHT OF ACTION UNDER A CONTRACT.

55. The Right of Action. Upon any breach of a contract there arises in favor of the injured party a legal right of action for compensation. "This right of action can then not be discharged by any payment or performance, or tender of payment or performance, by the promisor, without the consent and acceptance of the promisee; for the promisee, after breach, becomes entitled to the compensation or remedy provided by process of law, and is not bound to accept any tender or offer made in satisfaction of his legal rights." This right of action can only be discharged in one of the following four ways: (a) By a Release; (6) By an Accord and Satisfaction; (c) By a Judgment; (d) By Lapse of Time.

(a) A Release of a legal right of action consists in a voluntary agreement to discharge a claim, and is only valid when supported by a consideration or when executed under seal. Otherwise it is a mere unsupported promise which binds no one. But a voluntary delivery to the debtor of the evidence of a debt, as of a note or bond, or the destroying of the same, with the intention of discharging the debt, does operate as a a release. A release of one of several debtors, jointly, or jointly and severally, liable for the same debt, releases all.

(6) Release by Accord and Satisfaction consists in an agreement on the part of the creditor to accept something in satisfaction of his claim, accompanied by the delivery or performance of what has been agreed upon. Here the execution of the agreement is the satisfaction referred to in the phrase "accord and satisfaction," the agreement to accept this being the accord. It should be noted that the right of action is not discharged until this agreement or "accord" is fully executed when "satisfaction" has been rendered.

(c) Release by a Judgment. Evidently a judgment obtained through a suit at law in favor of the plaintiff discharges all further right of action against the defendant in the case so adjudicated. His former right is now merged in what is called a contract of record, and this is discharged by the payment of the judgment, or by such satisfaction as can be obtained by process of execution. An adverse judgment against the plaintiff does not discharge the obligation or right of action unless this adverse judgment was rendered on the merits of the case. Of course any judgment may be set aside. by the court in which it is rendered, or set aside by a higher court, in which case judgment may be entered in favor of the other party if so ordered, or the parties may be remitted to their original positions.

(d) The discharge of right of action through Lapse of Time is in virtue of certain statutory limitations providing that after the lapse of a certain period of time, which is different for different kinds of contracts, the right of action under the contract ceases to exist, and is said to have been discharged by lapse of time. Even in the absence of any statutory provision the courts will not allow a case to be opened on a contract which has long stood as a dead letter. In the common law the period of time which bars the right of action is commonly twenty years. This will apply even to sealed instruments, and for parole agreements this time will be shortened and discharged by payment presumed for shorter periods.

It must not be understood, however, that the courts will allow either party to an agreement to benefit through lapse of time from a fraudulent contract, although the lapse of an unreasonable time before suit is entered by the defrauded party will have the effect of affirming the contract. In other words the law reasonably requires that in case of either fraud or breach of contract a prompt recourse to the courts shall be had.

56. Removal of Statutory Bar to Right of Action. While statutes of limitation are a bar to a right of action or recovery in the courts, they do not act to extinguish the claim, and hence notwithstanding the time in which suit may be entered has elapsed, the right of action may be revived by (a) a promise to pay the debt; (b) a subsequent acknowledgment of the debt; or (c) a part payment of the debt. In other words, any acknowledgment on the part of the debtor of the existence and legitimacy of the claim, after the right of action has been barred by the statute of limitations, serves to revive the claim for another like period. This acknowledgment of the existence of the debt, in order to serve to revive its legal status is not merely a recognition of the fact of the debt, but must consist in an agreement to pay the debt.

After such a removal of the bar to the right of action, suit may be entered upon the original contract by showing that the claim has been revived by the free act of the debtor. In other words, the debtor has here waived his legal rights of defense, and such a waiving of his rights does not require a consideration to support it, as was shown in Art. 27,

5

PART II.

General Clauses in Engineering Specifications and Accompanying Documents.

57. General Considerations. Nearly all the works designed by engineers and architects are executed by other parties called contractors. The contractor usually buys all the materials and furnishes all the labor required in the execution of the work, as designed, and he agrees to do this within a stated time and for a fixed sum. To insure his doing this satisfactorily certain written documents are prepared and signed by both parties, that is to say, by the man, company, or corporation having the work done and who is to pay for the same, and by the contractor, or the man, company, or corporation who does the work and furnishes the materials.

Standing between these two parties to an agreement is the engineer or architect who has planned the work and who usually superintends its execution and assists in the final settlement between the parties to the agreement. Although paid by the party having the work done he occupies a judicial and not a partisan position and he is expected to act justly and fairly towards both parties.

In order that there shall be no misunderstanding in regard to the intentions of the designer, plans are usually drawn showing the general and detail features of the work, and accompanying these there is a written description of the work, of the materials to be used, of the time and manner of the payments,